Supreme Court - Trial Division

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Hamcor Pty Ltd & Anor v State of Queensland & Ors [2014] QSC 224 (11/5764) Dalton J 01/10/2014

Full-text: QSC14-224.pdf

Catchwords

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – IN GENERAL – – where the first defendant operates a fire brigade – where the brigade owed duties to the public at large – where the brigade may owe duties to other persons – whether a fire brigade owes a duty to take care in fighting a fire – whether the potential for conflicting duties affects the brigade’s duty of care to the plaintiffs – whether a duty of care would be inconsistent with the brigade’s statutory functions

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – WHERE ECONOMIC OR FINANCIAL LOSS – where the plaintiffs suffered economic loss as a result of contamination of land – whether the plaintiffs’ claim is for pure economic loss

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – PARTICULAR CASES – AFFECTING PUBLIC AUTHORITIES – where Environmental Protection Act 1994 (Qld) requires remediation of contaminated land – whether it is necessary for the first defendant to have foreseen precisely the application of Environmental Protection Act 1994 (Qld)

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – RELATIONSHIP OF PROXIMITY – where the first defendant operates a fire brigade – where the officers comprising the brigade had skill and knowledge above that possessed by normal members of the community – whether the brigade was in a position to control its response to the fire – whether the plaintiffs were vulnerable to or reliant on the acts and omissions of the brigade – whether the brigade owes a common law duty of care

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – STANDARD OF CARE – EMERGENCIES – where the fire brigade applied water to a chemical fire – where the fire brigade understood that this posed an environmental hazard – whether the fire brigade breached its duty of care

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – REFERENCE TO FRAMEWORK OF ACT – HEADINGS – where Acts Interpretation Act 1954 (Qld), s 14(2) provides that a heading to a section is part of an Act – where Civil Liability Act 2003 (Qld), s 36 reduces the rights of persons to a remedy – whether Civil Liability Act 2003 (Qld), s 36 applies to modify the standard of care owed or as a defence – two stage approach considered and rejected

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – CONSIDERATION OF EXTRINSIC MATTERS – COMMISSION REPORTS – where Civil Liability Act 2003 (Qld), s 36 uses words from Associated Provincial Picture Houses Limited v Wednesbury Corporation – whether the first defendant’s actions would amount to a breach of standard of care set by Civil Liability Act 2003 (Qld), s 36

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – GENERALLY – whether the first defendant is a ‘person’ within the meaning of Fire and Rescue Service Act 1990 (Qld), s 129 – whether the actions of the first defendant were done pursuant to the Fire and Rescue Service Act 1990 (Qld) – whether the first defendant has immunity pursuant to Fire and Rescue Service Act 1990 (Qld), s 129

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY – where the plaintiffs came under a statutory obligation to remediate the land pursuant to Environmental Protection Act 1994 (Qld), s 391 – where no evidence about what the plaintiffs’ position would have been had there been no breach of duty

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where the plaintiffs failed to undertake preventative measures against a fire – whether the plaintiffs’ failures contributed to the loss sustained

INSURANCE – INSURANCE AGENTS AND BROKERS – DUTY TO ENSURE EFFECTIVE INSURANCE COVER – whether broker acting pursuant to a contract owed a duty of care to third parties

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY – whether the plaintiffs would have acted in accordance with any advice brokers might hypothetically have given – whether insurance would have been available to plaintiffs

INSURANCE – THE POLICY – PRINCIPLES OF CONSTRUCTION – whether contamination of soil and ground-water is ‘debris’ – whether ‘debris’ must be remains of property which was insured property – construction of proviso – situation of proviso in policy – substance of proviso determines its application