Court of Appeal finds fire service can be sued by employees for breach of duty of care

(CMR) The Court of Appeal unanimously dismissed the Government's attempt to set aside a decision by the Honorable Madame Justice Margaret Ramsey-Hale in favor of two fire officers who were injured in the course of a routine test of their fire truck.

The higher Court found that their argument that the Crown had immunity from any liability for breach of its common law duty of care was without legal merit. and dismissed their appeal. The matter was heard on November 3.

Jason McCoy and Garfield Ritch sued the government after being injured on January 5, 2017. They were both injured when a rusty bolt on their truck sheared off. They had argued that the system of inspection and maintenance was inadequate.

They alleged breach of the fire service's direct common law duty to provide a safe system of work. However, the Attorney General's Office was seeking to have the claims dismissed claiming that under GCR Oder 14 r. 12 they had “no prospect of success”.

They argued that section 9(5)(d) of the Fire Brigade Act (2006 Revision) provided the Crown with immunity from any liability for breach of its common law duty of care as an employer to provide a safe system of work. They also sought to assert that the claim was frivolous or vexatious and was an abuse of the process of the Court.

The AG's office argued that the Fire Brigade Acts impose no direct duties on the Crown. They also claimed that section 3(4) of the Crown Proceedings Act (CPA) limited the liability of the Crown.

The Court spent a substantial amount of time reviewing the history of the Fire Brigade Act dating back to the original one in 1995 Revision. It reviewed the relevant sections relating to the duties of the Chief Fire Officer and officers. They also looked at the amendments to the law in 1996, 1999 and 2006. The Court examined Part III of The Crown Proceedings Act (1997 Revision) section 9 which enables a person with a claim directly to use the Crown.

Justice Ramsey-Hale had found in her judgment that:

“That duty arises out of its contractual relationship with fire officers into which the common law implies a duty of care. It is a duty which is owed to each and every employee of the Crown pursuant to section 3(1)(b) of the Crown Proceedings Law. The fire officers' rights is action is not barred by section 9(5) as it speaks only to actions for damages for injuries which result from a breach of the fire officers' duties and not to breaches of the Crown's common law duty of care owed to its employees.”

She further asserted that there are no grounds for finding that the claim was bound to fail by reasons of any statutory immunity conferred on the Crown by section 9(5) of the Law.

The Court concluded that the duty to provide a safe system of work for employees is not a duty that an employer can delegate and an employer who fails to do so directly is liable in damages. The Crown has similar obligations under section 3(1) of the CPA.

They also found that implied in the employment contract was a duty on the Fire Service to provide a safe system of work. The AG's submissions to the contrary were rejected. Failure to provide system of work was therefore a breach of the fire officer's contract of employment.

In the end it came down to whether or not section 9(5) of the Fire Brigade legislation intended to exclude liability for a failure by the Fire Service to provide fire officers with a safe system of work. The Court found that the section was looking to protect the fire service, fire officers and others in the course of fighting fires or dealing with other hazardous situations.

“I cannot accept that section 9(5) reflected a considered intention by the Legislative Assembly to deprive fire officers of their entitlements to sue their employer for its breach of duty following consideration of the balance between the tax paying public and the fire officers' benefits.