Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Windeyer JJ. Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 15 Dixon C.J.

This appeal involves the interpretation of a very ill-drawn statute in its application to facts to be collected from not very appropriately expressed pleadings. The proceeding in the Supreme Court was a demurrer by the plaintiff to a plea. The Supreme Court held the plea bad and gave judgment in demurrer for the plaintiff. The defendant appealed to this Court by leave, undertaking to abide by any order as to costs which the Court might see fit to make.

The statute is the Fire Brigades Act, 1909-1956 N.S.W.. The material facts would appear to be that the plaintiff, an infant, riding a motor cycle in a public street was injured by a motor vehicle belonging to the fire brigade. The precise character of the vehicle does not appear, but it was proceeding with all speed to the place of a fire, an alarm having been given. The plaintiff by his next friend brought an action of negligence against the Board of Fire Commissioners and, except that his declaration described the Board as a body corporate created by the Act, pleaded his cause of action in an ordinary count for negligence in the management of a motor vehicle in a public street. By the plea demurred to, the defendant seems to have desired to set up facts which would enable it to reply, perhaps cumulatively, upon three sections of the Fire Brigades Act. The first is s. 19 (1) which provides that it shall be the duty of the Board to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire in any municipality or shire, or any part thereof, to which the Act applies. The second is s. 28 which provides that a fire brigade, upon alarm of fire, shall notwithstanding any provision to the contrary in any Act, proceed with all speed to the place where the fire is, and endeavour by all possible means to extinguish the fire, and save such lives and property as may be in danger. The third is s. 46 which provides that the Board, the chief officer, or an officer of the Board, exercising any powers conferred by the Act or the by-laws, shall not be liable for any damage caused in the bona fide exercise of such powers. It adds that any person who obstructs or hinders any such officer in the lawful exercise of such powers shall be liable to a penalty not exceeding fifty pounds. The plea does not traverse the allegation of negligence. For the purposes of bringing into play the provisions to which I have referred it is defective in some respects. For example there appears to be no sufficiently formal allegation of the character of the vehicle or that a brigade or part of a brigade was operating and the references to the exercise of powers which are designed to bring s. 46 into operation do not consist of adequate allegations of fact. But these matters may be passed by. The real point in the case is whether, some degree of negligence being assumed, the statute affords a defence. My conclusion can be briefly stated. It appears to me that, on the assumption that the motor vehicle was being driven to the site of a conflagration for the purposes of extinguishing it, the driver and his principal, the Board of Fire Commissioners, were under a duty to exercise such due care for the safety of persons using the road and others likely to be endangered as would be reasonable for persons to exercise although performing that public service. This view is consistent with s. 19 (1) and s. 28 and indeed it may be said to be the ordinary legal consequence of such provisions. Section 46, however, was relied upon as meaning that, provided there was good faith, no liability could be imposed on the Board or an officer of the Board by the mere fact that the duty of due care was not exercised and the plaintiff on his motor cycle sustained injury in consequence. In my opinion, upon the proper construction of s. 46 it does not cover the use of the roadway by fire brigade vehicles for the purpose of proceeding to a fire nor does it cover performances of functions of such description of the Board of Fire Commissioners by its servants or agents. When s. 46 speaks of the bona fide exercise of the Board's powers it appears to me to be referring primarily to the exercise of powers which of their nature will involve interferences with persons or property. Of such powers s. 20 par. (e) is perhaps a conspicuous example. This example is conspicuous because it means a plain exercise of statutory power to do what would otherwise be illegal acts. I say that this is primarily the meaning of s. 46 because this is not the occasion to attempt the difficult task of defining the kind of power to which s. 46 is limited exhaustively. But it may be said generally that once a power is found which depends upon the statute and involves detriment or disadvantage to others, either necessarily or in consequence of its improper or faulty exercise, it appears to me that s. 46 is capable of applying: it is not, however, expressed in terms which make it applicable to the doing of things in the course of performing the functions of the Board, which are of an ordinary character involving no invasion of private rights and requiring no special authority. It is a function of the Board under s. 19 (1) to attempt to extinguish a fire, to protect and save life. It is no doubt a duty under s. 28 for a brigade, an expression capable of including servants or agents of the Board, to proceed with all speed to the site of a fire and to endeavour to extinguish it and save lives and property. But that involves no specific power to which s. 46 would necessarily attach. Probably the decision in Board of Fire Commissioners v. Rowland [1] applying s. 46 is to be justified on the ground that on the facts there was but an improper exercise of the power conferred by s. 30 (c). All I think that can be said in the present case is that s. 46 is not concerned with the use of a highway by fire brigade vehicles to reach the site of a fire and does not exclude a liability for negligence in the course of carrying out that duty or function.