On a daily basis, senior government managers are involved in using legislative powers to regulate industry or intervene in an emergent public interest scenario. There is always a risk the intervention or action may later be considered as negligent, disproportionate or unjustified by those affected by the action. So how do government officials best protect their state and themselves from the risk of litigation?

Most Queensland statutes protect the State and its officials to varying degrees for actions or omissions taken in good faith and/or without gross negligence. The interpretation of these so called "immunity" provisions has received some helpful analysis in the decision of the Queensland Court of Appeal in Hamcor Pty Ltd & Anor v The State of Queensland [2015] QCA 183 (Hamcor).

The Hamcor decision examines immunity provided to the State under s 129(1) of the Queensland Fire and Rescue Service Act 1990 (QFRA), with the section distinguishing between actions taken pursuant to the QFRA as opposed to the purposes of the QFRA. The Hamcor decision highlights the need for decision makers to take the immunity provisions of state legislation into account when going through decision making processes.

Currently in the private sector, there is a wider tendency for corporate officers to have to respond to litigation. If this trend were to move to the public sector, then recent amendments to s 26C of the Public Service Act (PSA) are relevant for senior public service officials.  Under s 26C (1), there is immunity from direct civil liability and under  26C(3) of the PSA if public officials act in good faith and without "gross" negligence, then a financial contribution cannot be sought by the State against the official (in the event of successful litigation against the State).

Hamcor facts

Hamcor Pty Ltd (Hamcor) was the trustee of the Hayward Family Trust. Hamcor and Mr Armstrong, who owns Binary Industries (Binary), were tenants-in-common over land at Narangba (the Property). Binary was the lessee of the Property, where it manufactured chemicals.

In August 2005, the factory on the Property was engulfed by fire. The Queensland Fire & Rescue Service (QFRS) were called to the blaze and tried to extinguish the flames by applying massive quantities of water on and around the fire. The water mixed with factory chemicals, producing a large runoff of contaminated fluid called firewater that flowed into nearby stormwater drains and soaked into the Property's soil and storage dams. As a result of the contamination, the Property was placed on the State Contaminated Land Register, requiring remediation of approximately $9 million, which was far more than the uncontaminated property was worth.

Hamcor and Armstrong sued the State of Queensland, claiming the QFRS breached its duty of care by negligently using water to extinguish a chemical fire. Hamcor and Binary argued that the fire should have been allowed to burn out and that containment practices should have been followed, reducing the cost of remediation.

There was a trial before a single judge where the State was held not liable. During the trial it was established that the QFRS is protected by an immunity from liability provision under the first limb of s 129(1) of the FRS Act. Hamcor and Mr Armstrong appealed the decision, with the Court of Appeal confirming the primary court decision on 2 October 2015.

Queensland Court of Appeal decision

The Court decided that the QFRS, in applying water to the fire, was backed by powers in s 53 of the FRS Act and were therefore protected by the immunity conferred by the first limb of  s 129(1), which immunised the QFRS where it was acting "pursuant to the Act" (in contrast to the "purposes" of the Act). Although s 53 of the Act did not explicitly mention the use of water, it was held to be within the parameters of the legislation. Hamcor and Mr Armstrong's claim that if negligence was present there was no civil immunity was rejected as a matter of statutory construction of s 129(1) of the Act.

Hamcor and Binary also sought to apply s 36 of the Civil Liability Act 2003 (Qld), arguing that the acts or omissions of the QFRS in fighting the fire were "unreasonable". The Court of Appeal was not satisfied that the use of water by the QFRS was manifestly unreasonable. The Court found that the mere fact that there was an alternative strategy available (and perhaps a preferable strategy) did not make the strategy employed manifestly unreasonable.

It is not known whether leave will be sought to appeal the Hamcor decision to the High Court.