What are the prescribed qualifications for a paramedic in NSW?

Michael Eburn: Australian Emergency Law - 20 January, 2016 - 15:42

A NSW correspondent asks this timely question:

… in relation to the Health Services Amendment (Paramedics) Bill 2015 which comes into force at the start of next month. The bill states that:

For the purposes of this section, a paramedic is:

(a) a person who holds qualifications, or who has received training, or who has experience, prescribed by the regulations, or

My question to you is what are these qualifications, training or experience; and which regulations is the bill referring to? Also if one was to call themselves a ‘medic’, excluding the ‘para’, would this be a breach of this legislation?

As noted earlier, (see Protecting the title of paramedic in NSW (June 3, 2015)) the NSW Parliament passed the Health Services Amendment (Paramedics) Bill 2015 to protect the title of paramedic. As my correspondent has noted this wil come into force on 1 February. At that time the Health Services Amendment (Paramedic Qualifications) Regulation 2015 (NSW) will also come into force. That Bill defines the qualifications required to use the title ‘paramedic’. The Regulation says:

The following qualifications are prescribed for the purposes of section 67ZDA (2) (a) of the Act:

(a) a Bachelor of Paramedicine or a Graduate Diploma of Paramedicine conferred by a university,

(b) a nationally-recognised Diploma of Paramedicine issued by a registered training organisation.

Further

Paramedicine includes Clinical Practice (Paramedic), Emergency Health (Paramedic), Health Science (majoring in Paramedicine), Paramedic Practice, Paramedic Science and Science (majoring in Paramedicine).

Remember also that a person can use the title ‘paramedic’ if they are an employee of the Ambulance Service of NSW and are authorised by the Health Secretary to use that title (s 67ZDA(2)(c)).

Section 67ADA says ‘A person who is not a paramedic must not, in any way, hold himself or herself out to be a paramedic’.   Who or what is a paramedic is not defined except by the qualifications or employment status that the person holds. Calling yourself a ‘medic’ would not contravene the Act if you clearly distinguished it from a ‘paramedic’. I would think many people would think a ‘medic’ is a doctor but I also understand that the term is used differently, for example in the ADF.   The issue is however ‘holding’ oneself out not just the title. If you claimed to be a medic but said ‘I’m a medic, not a ‘paramedic’ but I can still do all the same stuff’ that might still be holding oneself ‘out’ as a paramedic.

Again this is an issue that could well be helped with national registration.   A paramedic would be nationally registered, you could call yourself a ‘medic’ and everyone would know that this was not the same as a registered paramedic.


Categories: Researchers

Doctors as (airborne) good Samaritans

Michael Eburn: Australian Emergency Law - 12 January, 2016 - 15:43

I have previously written about doctors, and others, acting as good Samaritans – see

Today’s question takes us into the sky. A recently graduated medical practitioner says:

I am a newly registered doctor. While I was waiting at the airport recently, I recalled a flight I had been on years ago, during which flight crew asked if there was a doctor on board, as there was a medical emergency. This started me thinking about what I’d do if I heard such a call again. After a quick search online, I found a wealth of news articles on the subject.

Most of the articles made sense, but two of them included comments, which I questioned. Both were American in origin.

The first (link below) states in the third paragraph that in Australia, “Doctors…are mandated by law to assist passengers in need”. I was aware of no such law, with the exception of the much cited (on your blog, at least) Woods vs Lowns. If this is the only (ie. no other sources) cause of a duty being established, would a general page over the aircraft PA be sufficient, or would a doctor need to be personally requested?

Link : http://time.com/4022209/doctors-planes-medical-emergencies/

The second article quotes an American doctor, Paulo Alves, who is the medical director of a company which provides phone medical advice to airline staff during an emergency. In the final 8 paragraphs, he says that Good Samaritan laws may be voided if a responding volunteer accepts anything from the airline by way of compensation or show of gratitude. The author then implies that even accepting a seat upgrade or receiving an unsolicited gift basket from the airline may mean that the law doesn’t apply. This is an American article, so I was hoping you could comment on whether something similar would be the case here.

Link: http://www.airlineratings.com/news/543/medical-emergency-aloft-what-you-need-to-know-#sthash.RQmnjoVC.dpuf

Regardless of either of the above, in a real such situation, I have no doubt that I would step forward voluntarily (as I’m sure would almost any doctor). Any Australian doctor, at least, would also be covered by indemnity insurance, although pending the answer to the above, I can only see it being called upon very rarely, if at all.

Doctor’s are not mandated by law to assist when asked. As noted the only case on point is Lowns v Woods (1996) Aust Torts Reports 81-376. As has been discussed in previous posts on this blog, in that case the critical facts were that the doctor was approached because he was a doctor, at his place of practice, ready to see patients but not yet engaged in doing so. That is quite different from a doctor at an airport or on a plane. A doctor on a plane is not at his or her place of work, may be travelling with small children, may be affected by alcohol or fear of flying, may be on his or her first real holiday and has splashed out on first class seats with their partner who has put up with years of ‘on call’ disruptions and this time it’s not going to happen again and of course the doctor may be in a practice where he or she hasn’t seen an emergency presentation in years.   All of that would have to be considered and suggests that the circumstances that gave rise to a duty in Lowns v Woods would not lead to a duty in these circumstances.

As was discussed in the unfortunate case of Dr Dekker (see Further legal ruling affecting ‘Doctors as ‘good Samaritans’ – do I have to stop?’ (January 3, 2015)) it could be unsatisfactory professional conduct to fail to render assistance when a doctor can, but to determine that the medical authorities need to bring evidence that the doctor could actually have done something to assist.   Surely we are beyond the days of believing a doctor, with no equipment and in a foreign environment can work miracles just because he or she is a doctor!

So there is no specific rule mandating doctors to assist in an emergency on an airplane but the rules of general application discussed above could apply. So in the right circumstances it may be negligent or professional misconduct to fail to assist but that has to take into account all the circumstances so is unlikely in the circumstances suggested by my correspondent.

As to the second article, it has been noted that there is ‘good samaritan’ legislation in every state.   I confess I don’t know which state law applies on an aircraft. The conventional wisdom is that the law in an aircraft is the law of the country where the aircraft is registered, so an Australian aircraft – with the prefix VH – is governed by Australian law but the law we are discussing is state law. Which state’s laws apply I’m not sure but given there is good Samaritan legislation in every state it doesn’t really matter.

The critical issue in Australian good Samaritan law is that the person who steps forward to help does so without any expectation of payment or reward; see Civil Law (Wrongs) Act 2002 (ACT) s 5; Civil Liability Act 2002 (NSW) s 56; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 8;  Civil Liability Act 1936 (SA) s 74; Civil Liability Act 2002 (Tas) ss 35B;Wrongs Act 1958 (Vic) ss 31B; Civil Liability Act 2002 (WA) s 5AB.   In Queensland the situation is slightly different as the services have to be ‘performed without fee or reward or expectation of fee or reward’: Law Reform Act 1995 (Qld) s 16.

In every state other than Queensland if the doctor (or other volunteer) steps up to help and at the time doesn’t expect any reward they are protected even if they are, later, offered or receive ‘anything from the airline by way of compensation or show of gratitude… [including] accepting a seat upgrade or receiving an unsolicited gift basket from the airline’.   It would be different if the flight attendant did approach a doctor and offer that reward eg ‘Doctor, there is a patient that needs your assistance and if you’re willing to help, we can make sure you and your family are upgraded to first class for your return flight’; but if the call is ‘Is there a doctor’, the doctor volunteers to assist without demanding, or being offered – that is expecting – any return then the Acts will apply.

As noted the only complex case would be in Queensland where the action has to be performed both ‘without fee or reward’ or an expectation of a fee or reward. I still don’t think that would matter. An act is done for fee or reward if it is negotiated before the event, and an expectation may be where the doctor expects to get a reward such as an upgrade, but doesn’t. Where there is no suggestion of a reward and no expectation of it, I can’t see a subsequent token of appreciation would convert what was a protected action into an unprotected one.

In short although it is less clear in Queensland, my conclusion would be provided the doctor doesn’t expect any reward, then the legislation applies even if the airline or, the patient, later offer what can be seen to be a gratuity.


Categories: Researchers

An act of God?

Michael Eburn: Australian Emergency Law - 12 January, 2016 - 14:44

This concept appears to be one from America where insurance companies and others deny liability as an event was ‘an act of God’ (whatever that might mean).   I’ve never understood the concept as insurance is designed to indemnify the insured from events that come from the heavens (storms, floods, lightning etc).   How insurers get out of because an event was no-one’s fault is beyond me.

In any case that is not quite the point of this post. This post relates to a Victorian news story – Lisa Dennis ‘An act of God?’ Midland Express (online) 11 January 2016.

The gist of the story is that a street tree fell and damaged a person’s fence (which sounds like a scenario I was discussing in If a tree falls on a (NSW) road … (January 11, 2016), which may be what encouraged my correspondent to send this paper to me):

This is the second time in eight years a street tree has damaged the woman’s property. During the latest event the elm tree blew down in a wild weather and brought down the power line to her home. As a result, home owner Ruby had to pay to have the power reconnected and is also facing significant costs and labour to repair her damaged wicker fence and gardens…

On the last occasion she approached council for compensation as she felt the tree was their responsibility, however she was told by a council staff member that it was an ‘act of God’ and council was not responsible.

The first lesson here is never just take someone’s word that they are not responsible.   In Timbs v Shoalhaven City Council [2004] NSWCA 81 the deceased approached a council employee regarding permission to remove trees he thought were dangerous. The council employee pointed out that there was a tree preservation order and the landowner would be prosecuted if he removed the trees. The advice was right in that there was a tree preservation order but wrong in that the owner was not advised that he had to apply for permission and if he did the trees would be inspected and if they were dangerous he could remove them. Rather the owner relied on the advice he was given during an onsite conversation, did nothing about the trees that subsequently fell and killed him. The council was liable for failing to properly consider a request to remove trees that were dangerous.   By not giving correct advice or taking steps to inspect the trees the employee was negligent. That is of course little comfort to the family of the deceased.

In this scenario the council staff member may have said ‘that it was an ‘act of God’ and council was not responsible’ but that doesn’t make the advice correct.   So ‘who is responsible for the damage caused when a street tree collapses?’

The answer may be the person upon whom the tree falls.   There is no guarantee that everything is safe and nothing will ever happen. The Australian system of compensation is based on the tort of negligence so one has to prove that there was a lack of care. Bad things can happen, such as trees fall, without negligence and if that is the case, the loss lies where it falls or, to put that another way, the person responsible for the loss is the person who suffers the loss.

If a person wants to shift the loss they have to prove that there was some lack of care by someone. In that case the person or entity ‘responsible for the damage caused when a street tree collapses’ is the person or entity that negligently caused or allowed it to collapse. That may be a water authority that put drains under the tree that leaked and caused the soil to be waterlogged, or it may be ‘the guttering works … have weakened the root system of the trees along the thoroughfare and the trees were dying as they were no longer getting enough water.’ It may be the council as trees have a natural life span and are prone to disease so there should be a system of regular inspection to determine the health of trees and their risk.   What that shows is that just because a landowner can show that they have been damaged by someone else’s tree, it is not automatic that the owner of the tree is liable for the damage.

If that were not the case the simple solution for councils would be to remove all trees (which would also reduce, I assume, the bushfire risk). But people like trees and they have environmental and economic value.   So trees are kept and councils have to inspect them and take other steps to look after them, but there duty does not require them to guarantee that trees are safe, but to take ‘reasonable steps’ to ensure safety. What is ‘reasonable’ has to take into account all the circumstances including the ‘financial and other resources that are reasonably available’ and the other functions that place a demand on those resources (Wrongs Act 1958 (Vic) s 83) (see also Liability for dangerous trees (April 28, 2015)


Categories: Researchers

Authority of a surf lifesaver

Michael Eburn: Australian Emergency Law - 11 January, 2016 - 22:19

This question comes from a NSW volunteer surf lifesaver on the south coast of NSW:

We were on patrol yesterday and the beach was very busy (by our standards) with lots of visitors.  Whilst some minor preventative actions and rescues occurred during the day, the major difficulty that was encountered was when the tide dropped and a number of boardriders placed themselves closer and closer to the general swimmers between the flags. As the boardriders were catching waves in the dropping tide, in some cases they were riding through the swimmers to a point where there was some safety concerns amongst our patrol and the general public.  On three occasions, we had a patrol member swim out to the boardriders to ask them to move outside the flags and be more cautious around the swimmers, which they said they would do but ignored.  We also had the standard signs, saying that boards and other water craft were prohibited between the flags (I can’t remember the specific wording).  We also had a few people coming up to us on the beach and ask why we hadn’t forced the boardriders to move. (There was also one person who suggested they might take matters into their own hands).

The general response from our senior members to those who enquired was that we have no authority to force anyone to move.  Rather, we can ask and encourage them only. It was also stated that we can only ask and encourage swimmers to swim between the flags but we cannot force them either.

I have two questions that arose from yesterday’s discussions.

  • Can you please confirm that the level of authority for volunteer surf lifesavers is limited to “encouraging” boardriders to remain outside the flags as per signs.
  • If a collision did occur between a board and swimmer and injuries were sustained, where would any legal action be directed? (There was talk about Council, Surf Life Saving Australia etc).

Surf Lifesaving Australia is not a statutory authority; there is no relevant Act that governs their operations. According to their website (https://sls.com.au/who-we-are/corporate-governance)

SLSA [Surf Life Saving Australia] is a company limited by guarantee, subject to the Corporations Act.  It is a Federation of the seven (7) State and Territory Centres for Surf Life Saving in NSW, Queensland, Victoria, Tasmania, South Australia, Western Australia and the Northern Territory.

Surf Life Saving New South Wales is ‘… a company limited by guarantee as defined in the Corporation Act 2001 administered by the Australian Securities and Investment Commission (ASIC)’.

So what do the flags mean? The SLSA ‘Beachsafe’ web page has pictures of beach flags and signs. It gives examples of regulatory and warning signs and says:

Regulatory signs are more important than Warning Signs because they inform you about prohibited activities at the beach. These are red circles, with diagonal lines across a black symbol. There may be penalties imposed if you disregard these signs. Some examples you may see at the beach include:

There is no explanation of what that sign means or where, or if, it is prescribed by law (compare that for example to Schedule 2 of the Road Rules 2014 (NSW) where all the ‘Standard traffic signs used in NSW’ are set out).

If there are regulatory signs, where does the regulation come from? The answer is the Local Government Act 1993 (NSW) and in particular the Local Government Regulation 2005 (NSW) r 411. This regulation says:

411 Bathing control notices

(1) Notices that are used by a council to control bathing must comply with the requirements of AS 2416 .

(2) A council that uses flags to designate an area for bathing must ensure that the flags are removed from the area whenever the area is closed for bathing.

(3) In this clause:

“AS 2416” means the Australian Standard entitled Design and Application of Water Safety Signs and numbered AS 2416-2002 , as published by Standards Australia on 7 February 2002.

“bathing” includes surfing and any other similar form of recreation.

Australian Standards are generally not freely available but a circular from Surf Life Saving New South Wales, and published by Wyong Shire Council at https://www.wyong.nsw.gov.au/getmedia/d892780d-a7f2-4d1e-8463-9289cf7bc6c3/6.9—Attachment-3.aspx, details changes to Australian Standards for beach flags and how those changes are to be implemented. This document identifies the current standard for both the red/yellow swim flags and the black and white surfcraft exclusion zone.

So the first thing is that a council can use signs to designate an area for bathing and those signs can include flags in accordance with the standard. The standard is adopted by Surf Life Saving. Further, councils may erect a notice relating to ‘the use of water-based recreational equipment’ (Local Government Act 1993 (NSW) s 633).     ‘A person who, in a public place within the area of a council, fails to comply with the terms of a notice erected by the council is guilty of an offence’ (Maximum penalty: 10 penalty units) (Local Government Act 1993 (NSW) ss 632 and 633(1)). There is a problem however, s 670 says

(1) A person who fails to comply with the terms of a notice or sign referred to in this Chapter is not guilty of an offence unless the notice or sign:

(a) is clearly legible…

It’s hard to say that a flag is ‘legible’ (which according to the Oxford dictionary means ‘(Of handwriting or print) clear enough to read’) and the surfcraft exclusion infogram above, does not appear to be prescribed as a sign that has particular meaning. Images on the web show other signs that have different infograms the words ‘Surfcraft prohibited’ – see below

None of this really answers the question. The answer is that whether or not the zones are enforceable, volunteer life savers have no law enforcement authority (see also Lifesavers as law enforcers? (July 6, 2014)).  As the 2014-15 Surf Life Saving NSW Lifesaving Operations Procedures Guide says at p 23 ‘Apply penalty within authority – in most cases this involves informing the appropriate authorities.’

As for question 2, collisions do occur between surfers and swimmers and there has been legal action. Where the local council employs the lifeguards, any alleged negligence by the lifeguard in his or her management of the beach will be transferred to the council (see Council of the Municipality of Waverley v Bloom [1999] NSWCA 229; Swain v Waverley Municipal Council (2005) 220 CLR 517). An employer is always liable for the negligence of an employee. A volunteer lifesaver is not an employee of the council but to the extent that the council authorizes and allows lifesavers to manage beach safety they are acting as agents of the council and one would expect the council to be liable. In Sutherland Shire Council v Kukovec & 1 Or; Elouera Surf Lifesaving Club Inc v Kukovec [2001] NSWCA 165 the trial judge found that there had been negligence by a volunteer lifesaver but that the surf club was vicariously liable for the negligence and the council was in turn vicariously liable because the club was its’ agent. On appeal the findings of vicarious liability were challenged but were not resolved, the court of appeal finding that there had been no negligence.

Today the Civil Liability Act 2002 (NSW) Part 9 would ensure that a volunteer surf lifesaver is not personally liable for any negligence. Their club may be and the issue as to whether that liability could be transferred to the council would be arguable but either way, the volunteer will be protected.

For a more detailed and learned analysis of surf cases and surf law, see Fitzgerald, Brian and Harrison, Joanne ‘Law of the Surf’ (2003) 77 Australian Law Journal pp. 109-116.


Categories: Researchers

If a tree falls on a (NSW) road …

Michael Eburn: Australian Emergency Law - 11 January, 2016 - 20:24

A member of the NSW SES asks:

As someone who acts as a Duty officer for the NSW State Emergency Service i have had to handle incidents where a tree is reported down on a road. The standard practice for many SES units across NSW involves referring the tree down to the local council or RMS depending who maintains the road. Based on my experience in most cases the NSW SES will not attend the scene to assess the situation and simply close the job as “referred”.

My questions are,

  1. As per the SES act, it would seem that the SES are only risible for any trees down during a Storm, Flood or Tsunami?

Following this,

  1. If during a Storm or Flood there are reports that a tree has fallen and it poses a risk to traffic/the public, is the NSW SES neglecting its duty of care and responsibilities under the SES Act by referring such trees to non-emergency services such as local councils and RMS who in most cases cannot guarantee a prompt response to ensure the safety of the public.

As you have discussed previously the definition of a “Storm” leaves a lot to be desired when it comes to deciding if reports of a Tree down is the responsibility of the SES or one of the other agencies.

With respect to question 1, see NSW SES responding to a non-emergency (October 16, 2015).

The answer to question 2 needs some more detail.   As noted the question of whether or not there is a “storm” is unclear – see The NSW SES is the combat agency for floods and storms – but what is a flood? or a storm? (October 6, 2015).    Let us assume for the sake of the argument that there is indeed, a ‘storm’.   According to the State Emergency Service Act 1989 (NSW) s 8 some of the functions of the SES are

(aa) to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis, [and]…

(b) to act as the combat agency for damage control for storms and to co-ordinate the evacuation and welfare of affected communities,

So a tree has fallen down in a storm. Let us assume the tree is a private tree on private property and has fallen onto the private home of the landowner who lives there. The tree has damaged the roof and water is now getting into the house, the longer it is left, the worse the damage will be.

The only person for whom this is an emergency is the landowner.   They can call the SES or they can chose not to. This is unlike a fire. If a fire breaks out in a house the emergency is not only for the landowner whose property it is on fire but also the neighbours whose properties are under threat and the broader community. Anyone can call the fire brigade and the fire brigade can enter the property to fight the fire whether or not the landowner wants them to – see:

Further the fire brigade could chose to ignore the fire and divert resources to protecting neighbouring properties (see Liability for fire – a review of earlier posts (January 8, 2016) and the links to earlier posts that are set out there).

In our scenario the landowner can call the SES (and putting aside philosophical questions, such as why does the State Government fund a response, and compel insurers and local governments to fund a response to protect what is, inherently, a private interest?) he or she would expect a response. The property is suffering damage, the damage is caused by a storm and the SES is the ‘the combat agency for damage control’ where damage is caused by storms.     The SES must ‘triage’ its response that is determine which calls are more urgent than others but it could not refuse to go on irrelevant grounds such as that the landowner is a fit young man who should be able to manage the response or for some reason he is the author of his own misfortune.

Now let’s change the story. This time the tree falls onto a public street. It is no longer just the landowner’s problem. The street is blocked and there is a hazard to pedestrians and vehicle traffic. Whilst there’s no obligation to call the SES (again compare that to a fire where there is an obligation to report at least a bushfire – see Rural Fires Act 1997 (NSW) s 64) once the SES are aware of the danger they need to step in to resolve it. They are the combat agency for responding to storm damage and are to protect persons from danger (though arguably a fallen tree is a hazard from a tree, not a storm).

Now we move closer to the story as put by my correspondent. If the tree is owned by the RMS or council then it’s on their property (the road) that sounds like the first scenario. Like the landowner they could chose to deal with it themselves. They don’t need to call the SES any more than a landowner does.  However, unlike a private landowner, the roads authority  will have a duty to make the road safe.  The roads authority owns the road (Roads Act 1993 (NSW) s 145) that everyone has a right to access (s 5).   Like any landowner if you know people are going to come onto your land you have a duty to ensure that it is reasonable safe and hazards are dealt with. For that purpose and the roads authority has specific powers to regulate the traffic on the road for, amongst other reasons, to protect the public from dangers on the road (s 115). The roads authority therefore owns a road, is required to keep it open and has specific powers to control access should it be dangerous.  An analogy may be that the roads authority is the combat agency for hazards on the road.

Even so, the roads authority, like a private landowner could call on the SES for assistance. If they know of the problem but also know they can’t get to it they can call the SES as much as anyone else, and the SES can’t refuse to go on grounds such as ‘the roads authority should be able to handle this matter itself’.

So both the SES and the roads authority have obligations to deal with the hazard. The duty in each case is to do what is reasonable. What is reasonable will depend on all the circumstances. What’s to be done? Clearly this is the classic situation where what is required is preplanning – and that is what has happened. The NSW Storm Plan, a sub-plan of the NSW Emergency Plan sets out roles for RMS and councils. The plan says that local councils are:

Subject to the availability of council resources [to] assist the NSW SES with storm damage operations including:…

d. Remove tree and other debris from council managed roads and council managed public land during storm damage cleanup operations in consultation with the NSW SES (NSW Storm Emergency Sub Plan (September 2013), [2.12.6]

The Roads and Maritime Services is to ‘Clear trees and debris from RMS managed roads in consultation with the NSW SES’ ([2.17.1]). The key issue in both cases is that the decision is made ‘in consultation’ with the SES.

So ‘is the NSW SES neglecting its duty of care and responsibilities under the SES act by referring such trees to non-emergency services such as local councils and RMS who in most cases cannot guarantee a prompt response to ensure the safety of the public?’ Only if it is not ‘reasonable’ to do so. How do you know if it’s reasonable? The agencies need to consult and consider the threat level – is it a remote side street or a busy main road; what’s the visibility – is it daytime or nighttime? What other demands are there – this tree may be posing a risk but some other event may be more pressing? What can be done to minimise the risk? Can someone be called upon to at least set up traffic warnings if it’s not possible to remove the tree?   What resources does the SES have? What does the roads authority have (the local roads authority may be much better equipped than the local SES)? What does the Local Emergency Management plan say?

Conclusion

If my analogy is correct, that the roads authority are the ‘combat agency’ for hazards on the road, then in an ‘all hazards, all agency’ response they can call on the SES as much as the SES can call on the roads authority to help with the response.   Whether it is reasonable for the SES to refer a job to the roads authority will depend on all the circumstances. In some circumstances it will be reasonable, in others it will be reasonable for the roads authority to ask the SES to deal with the matter.   There can be no definitive answer.


Categories: Researchers

How far undercover can traffic police go?

Michael Eburn: Australian Emergency Law - 10 January, 2016 - 22:12

This question is suggested by an article that has been set to me for comment – Lexie Cartwright, Queensland police are exempt from every traffic law but drink and drug drivingGold Coast Bulletin, 9 January 2016.

The article follows “a Facebook photo on Sunday of an undercover police vehicle fitted with a speed camera parked on the side of the Nerang-Murwillumbah Rd and displaying an “L” plate on the back.”   According to the journalist ‘The Gold Coast Bulletin uncovered the little-known fact that Queensland police are exempt from every traffic law, except those governing drink and drug driving.” The article quotes a “A Department of Transport and Main Roads spokesman” as saying ‘“There are special circumstances when it comes to police — the only things they are [not] exempt from is drink and drug driving,” the spokesman said.”

Unfortunately the advice from the spokesman is not correct. As readers of this blog will know the Australian Road Rules do give exemptions to police and the drivers of emergency vehicles. The Australian Road Rules are incorporated into Queensland law via the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld).   Rule 305 says:

(1) A provision of this regulation does not apply to the driver of a police vehicle if—

(a) in the circumstances—

(i) the driver is taking reasonable care; and

(ii) it is reasonable that the provision should not apply; and

(b) if the vehicle is a motor vehicle that is moving—the vehicle is displaying a blue or red flashing light or sounding an alarm.

(2) Subsection (1)(b) does not apply to the driver if, in the circumstances, it is reasonable—

(a) not to display the light or sound the alarm; or

(b) for the vehicle not to be fitted or equipped with a blue or red flashing light or an alarm.

Further, rule 307 says:

A provision of part 12 [Restrictions on stopping and parking] does not apply to the driver of a police vehicle or emergency vehicle if, in the circumstances—

(a) the driver is taking reasonable care; and

(b) it is reasonable that the provision should not apply.

The Road Rules deal with all the sorts of rules that form part of the normal day to day traffic management but many offences are outside the road rules. For example ‘offences involving liquor or other drugs’ are contained within the Transport Operations (Road Use Management) Act 1995 (Qld).   Because these offences are in the Act, the exemption set out in the Regulation, which only gives an exemption from other parts of the regulation, do not extend to offences set out in the Act.   So far, the assertion by the spokesman is correct, police are exempt from the road rules but not offences regarding ‘drink and drug driving’.

There are other traffic offences that are also outside the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) and to which the exemptions in rules 305 and 307 do not apply.   For example the offence of ‘Dangerous operation of a vehicle’ is set out in the Queensland Criminal Code, s 328A.  The offence of ‘careless driving’ is set out in the Transport Operations (Road Use Management) Act 1995 (Qld) s 83.   Police are not exempt from these offences so in that respect the Departmental spokesman who said that police were exempt from ‘every traffic law’ other than drink and drug driving offences was wrong.

To return now to the issue of the unmarked police care with the ‘L Plate’. The Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) says nothing about the use of “L” and “P” plates. For the use of “L” and “P” plates the relevant regulation is the Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld). This regulation says that the holder of a learners licence must display an ‘L Plate’ (reg 58) and that (reg 60):

A person must not display an L plate while riding or driving a motor vehicle on a road unless the person—

(a) holds a licence that authorises the person to learn to drive or ride the motor vehicle; or

(b) is a driver trainer.

Maximum penalty—20 penalty units.

(In Queensland, a penalty unit is $117.80 (see https://www.qld.gov.au/law/crime-and-police/types-of-crime/sentencing-fines-and-penalties-for-offences/) so the maximum penalty is $2356. The maximum penalty is that which a court can impose. Most traffic offences are dealt with by traffic infringement notice (or on the spot fine), which is usually much less. I accept, without checking, that the infringement notice fine is $94 as reported in the article. )

There is nothing in regulation 60 to say that it does not apply to police – but the legislature do know that they have to give an exemption to police.  The regulation does provide that an ‘exempted police driver’ does not have to display red (reg 61(3)) or green (reg 62(3)) P plates.  So the legislature is aware of the need to give relevant exemptions and the inference is that if they meant to exempt police from reg 58 they would have done so explicitly. In the absence of any explicit exemption then police are bound by reg 58 as much as anyone else.

But what does it mean to be ‘driving a motor vehicle on a road’? Clearly if the vehicle was being used to pursue a driver then it is being driven, but what about if it is parked? In this article we are told that the vehicle in question was photographed ‘fitted with a speed camera parked on the side of the Nerang-Murwillumbah Rd…’   (emphasis added).  Further:

A Queensland Police spokesman confirmed the photograph was of an unmarked police vehicle but said it was not driven to or from the site with the “L” plates attached.

“These were placed on the vehicle as a cosmetic modification when it was stationary and in place for traffic enforcement,” a QPS spokesman said.

Many people will be aware that a person can be convicted of offences such as driving under the influence of alcohol if they are found sitting, or even sleeping in the driver’s seat of the car.   In Queensland these offences apply to

(1) Any person who, …

(a) drives a motor vehicle, tram, train or vessel; or

(b) attempts to put in motion a motor vehicle, tram, train or vessel; or

(c) is in charge of a motor vehicle, tram, train or vessel;

See Transport Operations (Road Use Management) Act 1995 (Qld) ss 79(1), (1F), (2), (2AA), (2A), (2B), (2D) and (2J).

The Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld) r 58 has no such extended application, it is limited to a person ‘driving a motor vehicle’. The Transport Operations (Road Use Management) Act 1995 (Qld) does not define ‘driving’ but does define ‘driver’ as ‘the person driving or in charge of any vehicle, tram, train, vessel, or animal’. To be ‘driving’ is one aspect of being a driver, to be in charge is the other, but on that definition ‘driving’ and being ‘in charge’ of the vehicle are not the same thing.   Without taking the matter further (which one would want to do if one was going to appear in court) I’m going to infer that the obligation not to display an L Plate applies when ‘driving’ a motor vehicle in the normal course of that word. If the vehicle is parked and no-one is in the driver’s seat then no-one is ‘driving’ the vehicle (even though someone is in charge of the vehicle and therefore it’s ‘driver’.)  In that case no offence is committed. The matter would be arguable if there was a person in the driver’s seat and certainly if the motor was on – turning the motor on being a fundamental part of ‘driving’.

Conclusion

It would be my view that if the situation is as described by the police, namely that the vehicle was ‘not driven to or from the site with the “L” plates attached’ but ‘they were placed on the vehicle as a cosmetic modification when it was stationary’ then no offence was committed and that is because no-one was displaying the L Plate whilst ‘driving’.

What is not correct is that the police had some exemption that allowed them to display L Plates when not holding a learner licence.  Whilst it is true that the police, and the drivers of emergency service vehicles, enjoy a broad exemption from the road rules, it is not true to say that the only rules from which they are not exempt are offences relating to ‘drink and drug driving,’ There are many rules for which they are not exempt, and incorrectly displaying L Plates – whilst driving – is one of them.


Categories: Researchers

Liability for fire – a review of earlier posts

Michael Eburn: Australian Emergency Law - 8 January, 2016 - 10:35

I’m asked by a consultant who has:

… been in Wye River this week investigating design and construction options for re-building.

Community members have been asking me whether Victorian law deals with the following:

  1. Can the responsible authority be held liable for property loss (and other financial impacts such as lost income from tourism), where it was reasonable that the fire should have been contained? Is this a case of negligence?  This relates to the Christmas Day Wye River fire.
  2. Can the responsible authority be held liable for property loss when a prescribed burn is not controlled? (Example – Lancefield fire 2015)
  3. Private landowners can be fined up to $14,000 for not reducing bushfire risk (fuel) on their land with fire prevention notices.  Apart from being issued with fines, does the law deal with liability for the management of bushfire risk?  Are there any differences in how the law is applied if you are a private landowner or a public landowner/manager?

I’m going to take the easy way out and mostly answer these questions by reference to earlier posts but people come to this site anew and finding old posts can be hard.   So here goes:

1. I make no comment on the Christmas Day Wye River fire as I have no knowledge on how that fire started or is alleged to have started or about the response to the fire. Speaking generally the answer is ‘probably not’ (never say never).  Apart from the difficult in proving that at the time (not with the benefit of hindsight) it was obvious that some other tactic would work, the fire authorities do not owe a duty of care to protect individual property holders.  See:

2. The answer is here is ‘yes, if it can be proven that there was negligence that is the person who lit the fire failed to take reasonable care’. The mere fact that the fire escapes does not however prove negligence.  Where there is a hazard reduction burn the defendant is introducing fire into the landscape and has to consider the weather, availability of firefighting appliances and always has the choice to light the fire or not.  The inherent danger of introducing fire can mean that the duty the defendant owes to those likely to be affected by the fire equates to a duty to guarantee safety.  As Chief Justice Mason along with Justices Deane, Dawson, Toohey and Gaudron said in Burnie Port Authority v General Jones (1994) 179 CLR 520 (at [41]), a case which involved liability for the accidental spread of fire in a warehouse:

Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. … Even where a dangerous substance [such as fire] or a dangerous activity … is involved, the standard of care remains “that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances”.   In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of “reasonable care” may involve “a degree of diligence so stringent as to amount practically to a guarantee of safety”.

But the danger from the possible escape of fire has to be balanced against the benefits to be obtained by the risk reduction so that may justify ‘taking the risk’.  See:

3. There is generally no duty at common law to take steps to reduce hazards, that is in part why obligations are imposed by legislation with fines and other penalties for failing to comply.   The law certainly does distinguish public land managers as they have to manage the land in accordance with their statutory duties so managing a land as, for example a national park, means there are limitations on the use of fire or other hazard reduction.  Clear felling or even clearing understory bush in a national park may well reduce the risk but would defeat the objective of having the national park and that has to be taken into account in asking what a ‘reasonable’ landowner would do.   For specific discussion see:


Categories: Researchers

Paramedics and the mentally ill – Victoria

Michael Eburn: Australian Emergency Law - 2 January, 2016 - 19:31

Welcome to the first post for 2016. In this post we revisit the question of paramedics and police detaining and treating people under mental health legislation. This question comes from a ‘newly minted’ paramedic from Victoria:

Recently I attended a case where an ambulance was requested by police to transport a patient under s351 of the Mental Health Act 2014 (Vic). Essentially this person had had an argument with his partner during which he had threatened to kill himself with a knife. He did not hurt himself, and after making the threat he put the knife down however would not leave the premises and was quite emotional, and his partner requested the police. The patient was apprehended under s351 and an ambulance was requested for transport. During my assessment I ascertained that the patient had no history of mental illness, did not have any “significant disturbance of thought, mood, perception or memory” at the time, and his emotional distress was (although extreme) not evidence enough of mental illness. In my opinion there was also no immediate risk to himself or other people. Furthermore based on reading your post “Paramedics and the mentally ill – Queensland” [(February 13, 2014)], I understand that threat of suicide is not enough to indicate mental illness. The patient calmed down in my presence however was distressed by the fact that being placed under a s351 would leave a record, and the loss of control added to sundry other personal issues he was dealing with; however he stated that he would be happy to attend hospital voluntarily for access to other services including a mental health assessment. The police however proceeded with the s351 and I transported the patient to hospital with them in attendance despite my suggestions that this was unnecessary, and the patient became distressed once more.

I have the following questions:

  1. The police have powers to transport patients under s351 without exercising clinical judgement as to whether the person has mental illness (ss 2). What effect does this have on their decision that someone has a mental illness? Does it to mean that a threat to commit suicide, or the patient’s distress, is enough for them to assume this is so? To me this gives license to ignore such things as the High Court ruling that attempted suicide “is not of itself sufficient to support an inference that the person is mentally ill” as to consider this would be some form of making a clinical judgement. (This may be picking at straws…)
  2. The police can use s351 to apprehend those they feel are ill and at risk, but If I don’t believe that this is true am I assaulting the patient that refuses transport even if they are under a s351? The Act states that paramedics are able to sedate or restrain patients for transport to a mental health facility, however it is not clear if this includes patients who I do not feel fit the criteria.
  3. On a slight tangent, we regularly attend patients who are extremely agitated and under the effects of drugs, under what authority are paramedics able to sedate them for transport, even if they refuse? This too would seem like an assault, however leaving the person would seem to leave them or others at risk of harm. These types of patients are regularly sedated, and I am curious to know if this is in fact lawful.

I have spent many hours attempting to find the answers for myself, however resources for these kinds of questions are not always so readily available, or obvious. I would appreciate your opinion on this matter, and also to thank you for providing this resource, and for no other purpose than to educate.

The Mental Health Act 2014 (Vic) s 351 says

(1)      A police officer … may apprehend a person if the police officer … is satisfied that—

(a)       the person appears to have mental illness; and

(b)      because of the person’s apparent mental illness, the person needs to be apprehended to prevent serious and imminent harm to the person or to another person.

(2)      A police officer … is not required for the purposes of subsection (1) to exercise any clinical judgement as to whether the person has mental illness…

(4)     A person apprehended under this section is subject to the custody of the police officer … until released from that custody in accordance with this section.

(5)     As soon as practicable after apprehending a person under this section … a police officer must arrange for the person to be taken to—

(a)       a registered medical practitioner or mental health practitioner; or

(b)      a public hospital, denominational hospital, privately-operated hospital or public health service within the meaning of the Health Services Act 1988 to enable a registered medical practitioner or mental health practitioner—

to examine the person…

For the purpose of the Act, a ‘mental illness’ is ‘a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’ (s 4).

Question 1

To be honest I have no idea what it means to say ‘A police officer … is not required … to exercise any clinical judgement as to whether the person has mental illness…’ The Explanatory Memorandum lodged with the Bill provides no further detail.  In her second reading speech (delivered to parliament when introducing the Bill) the Minister for Mental Health, Ms Wooldridge said:

The bill enables a police officer to apprehend a person who appears to have a mental illness so as to prevent serious and imminent harm to the person or another person.

It is intended to give police officers maximum flexibility about where they can take a person to be examined. In practice police will often take an apprehended person to the emergency department of a public hospital to be examined by a medical practitioner.

The bill will support this existing practice by enabling a police officer to take an apprehended person to a public hospital, denominational hospital, privately operated hospital, or public health service within the meaning of the Health Services Act 1988. The police officer will then be able to release the person from police custody into the care of the relevant hospital or health service. The hospital or health service must then arrange for the person to be examined as soon as practicable by a registered medical practitioner or mental health practitioner. This is intended to allow police to return to their other duties as soon as practicable without the need to wait until the examination has been completed.  (Victorian Parliament, Legislative Assembly Hansard, 20 February 2014, p 478).

That also adds no detail.   To exercise their powers under the Act, Police do have to make a judgement as to whether or not the criteria set out in subsection (1) apply. Those criteria are that the person appears to have mental illness and needs to be apprehended to prevent serious and imminent harm to themselves or another person. To decide whether or not the person appears to have a mental illness the police have to form a view as to whether or not they appear to have ‘a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’. The police cannot act unless they hold those views that is they must make a decision whether one calls that a ‘clinical decision’ or something else.

The former Act, the Mental Health Act 1986 (Vic) s 10(1A) used to say:

 A member of the police force is not required for the purposes of sub-section (1) to exercise any clinical judgment as to whether a person is mentally ill but may exercise the powers conferred by this section if, having regard to the behaviour and appearance of the person, the person appears to the member of the police force to be mentally ill.

Although that language is not repeated in the 2014 Act it could be inferred that again that is what is intended – an honest belief that the person appears to be suffering from a mental illness is sufficient. It is still the case however that the police (as the constables in Stuart v Kirkland-Veenstra [2009] HCA 15 did) must consider whether or not the person has ‘a significant disturbance of thought, mood, perception or memory’. The mere fact that they are contemplating suicide would not be sufficient to demonstrate that criteria.

Question 2

There are two relevant torts here, they are assault and false imprisonment. Assault is the actual and intentional application of physical force. False imprisonment involved detaining someone, restraining their liberty so they are not longer free to go where they wish, without lawful justification.

If a police officer has detained a person under s 351 then they are ‘subject to the custody of the police officer’. In the circumstances the fact that they are in an ambulance and are not free to go about their business would not represent a false imprisonment by the ambulance paramedic. The detention is by the police so whether it’s lawful or not would depend on the issue of whether or not the police believe that the person is mentally ill and needs to be detained.

The use of force is a different issue. The Mental Health Act 2014 (Vic) s 350 says:

(1)      … if a person is required under this Act to be taken to or from a designated mental health service or any other place—

(a)       an authorised person may use bodily restraint on the person if—

(i)        all reasonable and less restrictive options have been tried or considered and have been found to be unsuitable; and

(ii)       the bodily restraint to be used is necessary to prevent serious and imminent harm to the person or to another person; and

(b)      a registered medical practitioner may administer sedation to the person or direct a registered nurse or ambulance paramedic to administer sedation to the person if—

(i)        all reasonable and less restrictive options have been tried or considered and have been found to be unsuitable; and

(ii)       the sedation to be administered is necessary to prevent serious and imminent harm to the person or to another person.

(2)      Subsection (1)(b) does not limit the power of a registered nurse or ambulance paramedic to administer sedation within the ordinary scope of his or her practice.

The term ‘authorised person’ includes police officers and ambulance paramedics.

If the person has been detained under s 351 and police are relying on the ambulance service to assist with the transport of the person then they are a person required ‘to be taken to or from a designated mental health service or any other place’.   As an ‘authorised person’ the paramedic may only use force if the criteria in s 350(1)(a), above, apply. If the paramedic thought that the use of force was not justified then any use of force would be an unlawful assault.

The same is true with the use of sedation. A doctor who is present at the scene may direct a paramedic to administer medication and the question of whether or not the criteria in s 350(1)(b) have been met will be a matter for the practitioner’s judgment. If on the other hand the doctor is not there but has authorised the use of sedation if required, then the paramedic would be justified and should refrain from sedation if on presentation ‘less restrictive options’ are appropriate.

A police officer cannot direct a paramedic to administer sedation.   The use of sedation in the absence of a medical direction is a matter for the paramedic. Ambulance Victoria’s Clinical Practice Guideline A0708 ‘The Agitated Patient’ provides justification for sedation in appropriate cases. The decision of whether or not the relevant conditions exist is a matter for the paramedic.

In short detaining a patient in the ambulance who is ‘in custody’ under s 351 will not be a false imprisonment by the paramedic but that doesn’t justify the use of force or sedation by the paramedic if he or she does not feel the criteria in s 350 or CPGA0708 don’t apply.

Question 3

Patients who are ‘extremely agitated and under the effects of drugs’ may be sedated if the criteria in A0708 apply.   The principle is the one of necessity. If it is not possible to communicate with the patient and the treatment is necessary and in the patient’s best interests (and not for the paramedic’s convenience) then it may be administered without consent.

If the patient is competent and refusing treatment, even though treatment is necessary, then there is no justification for imposing treatment including sedation.

As s Lord Justice Staughtan said in In Re T [1992] EWCA Civ 18, [60]:

The notion that consent or refusal of consent may not be a true consent or refusal presents a serious problem for doctors… The surgeon will be liable in damages if he operates when there is a valid refusal of consent, and liable in damages if he fails to operate in accordance with the principle of necessity when there was no valid decision by the patient…

For paramedics that means if the person is competent and refuses treatment so be it. If you then provide treatment, including sedation, that would be an assault. If, on the other hand, a subsequent review comes to the conclusion that the patient’s refusal was not an effective refusal, then there may be liability for not providing the necessary treatment (see the discussion in Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police – Part 1 (October 5, 2015)).

Conclusion

My conclusions are:

  1. The reference to ‘clinical judgement’ in s 351(2) means that police don’t need to do the sort of diagnostic tests that one would expect from a health professional but that does not mean that they do not have to make a genuine, honest judgment as to whether the criteria in s 351(1) apply. Even if that is not called a ‘clinical judgement’ it will require a judgment that the person appears to be suffering from a mental illness as defined.
  2. Police may detain a person under s 351 and transporting a person and thereby continuing that detention will not be a false imprisonment by the paramedic. The use of force, and sedation, would require the paramedic to be satisfied that the criteria in s 350 and or CPGA0708 apply.  A paramedic should not ‘sedate or restrain patients for transport to a mental health facility’ if they do not feel that these criteria apply.
  3. The use of sedation to treat drug affected patients is justified by the doctrine of necessity. For that doctrine to apply it has to be the case that the person cannot give effective consent or refusal and the treatment is reasonable and in the patient’s best interest. If the patient is competent a refusal of treatment, even if a poor decision, must be honoured.

Categories: Researchers

2015 in review

Michael Eburn: Australian Emergency Law - 31 December, 2015 - 17:35

The WordPress.com stats helper monkeys prepared a 2015 annual report for this blog.

Here’s an excerpt:

The Louvre Museum has 8.5 million visitors per year. This blog was viewed about 140,000 times in 2015. If it were an exhibit at the Louvre Museum, it would take about 6 days for that many people to see it.

Click here to see the complete report.


Categories: Researchers

Looking out for volunteers on the farm – Victoria

Michael Eburn: Australian Emergency Law - 26 December, 2015 - 17:32

This question comes from Victoria:

I have tenants on a family owned farm. I have installed a fire fighting system and fire retardant distribution system which I hope will deal with even the most extreme events. It is, by definition almost, an untested system (of my own design).

I do not know what my liability will be to the operators of the system. Four men are required to run the system. The tenants have volunteered to help. The wife of one of the tenants objects to the use of fire retardants because they will introduce nitrates onto a patch of native grasses.

Do you know if there have been earlier cases where land-owners were held responsible for the failure of a fire plan? It occurs to me that I should simply send the tenants to a CFA safe area as soon as the first smoke appears on the horizon.

If I employ someone to work on the fire control system will I be breaking the provisions of the various Work-Safe regulations? It seems to me that I will inevitably be in breach of the requirement to provide a safe workplace, unless I can prove beforehand that my system is foolproof, which it may not be.

There are lots of issues raised here and in accordance with my stated policy (see https://emergencylaw.wordpress.com/about-2/) this is not legal advice on a particular case. I will raise some question that I would want answers to if I was giving legal advice and my correspondent will be advised to find a practising lawyer of his or her choice and seek specific advice.

To the questions; first Do I know if there have been earlier cases where land-owners were held responsible for the failure of a fire plan? Yes, and a case that comes to mind is Cook v R & M Reurich Holdings Pty Ltd [2004] NSWCA 268. This was an action alleging negligence by the defendant that operated a conference centre. During a quilters conference there was a fire and the operators asked those attending the conference to help remove valuables from the property and to fight the fire.   At [21] Stein AJA (with whom Beazley and Santow JA agreed) said:

Having devised an emergency plan, the respondent then failed to put it into operation. It was reasonably foreseeable that the appellant, or any of the ladies who were invited to help, could be injured while helping and in the vicinity of the fire. This is especially so when the women (including the appellant) were moving in and out of the house removing possessions and doing so at the request of Mrs Reurich, who was participating in selecting clothes and other objects to be saved from the fire, smoke and other likely damage.

And at [33]:

It was the owner’s failure to implement the emergency plan that lead directly to the appellant and other quilters attending the fire, trying to assist the respondent to fight it and to remove their possessions. If the plan had been put into operation the appellant and the quilters would not have involved themselves with the fire. The appellant’s injury occurred because of her involvement with the fire. It would not have occurred if she was away from the fire, assembled in a safe area. The appellant said that she would have obeyed any order to assemble at a safe place. There is no reason to doubt this.

That’s different to having a fire plan, implementing it but just getting a poor outcome but it is still informative for reasons I’ll discuss, below.

The nature of the tenancy.

Ownership of property is generally described as a ‘bundle’ of rights. The person who owns a block of land has many rights with respect to that land including a right to exclusive possession and a right to quiet enjoyment. You can tell other people to ‘get off’ and you should be free to enjoy your land without undue interference from others. When a property is leased the owner gives up some of the bundle of rights to the tenant. The tenant then has the right to exclusive possession so he or she can tell other people, including the landlord, to leave. They also have the right to quiet enjoyment so they can enjoy their occupation without undue interference from the landlord.

What’s not clear in this question is the true nature of the tenancy.   Do the tenants have exclusive possession of the farm or is there some joint or share farming going on? Do the tenants occupy the farm house but my correspondent is continuing to operate the farm? Is the fire fighting system intended to protect the farm house? other farm buildings? farm assets? crops and pastures? What are the terms of the lease? If the tenants are required to actively take steps to protect the property are they more there in the nature of caretakers rather than tenants? Answering these questions would be essential to reach a conclusion on the questions asked and my correspondent is advised to take all the documents to a solicitor of his or her choice and give specific instructions for specific advice.

For the sake of a general discussion I will assume that the landlord is still running a business on the farm but has leased the farm house.   I will assume the tenants have indicated that they will volunteer to help with fire fighting but are not required to do so by the terms of the lease.

Now to a second question: Should I ‘simply send the tenants to a CFA safe area as soon as the first smoke appears on the horizon?’ The tenants have the right to quiet enjoyment and exclusive possession of the property. A leasehold interest is a property interest (ie the leaseholder holds some of the bundle of rights that the owner has transferred to them). It follows that the landlord has no more authority to ‘send the tenants’ anywhere than the CFA does; and the CFA can’t require people who hold a pecuniary interest to evacuate (see Mandatory evacuations (December 26, 2015).

Finally: I employ someone to work on the fire control system will I be breaking the provisions of the various Work-Safe regulations? The answer is quite possibly.   A person conducting a business or undertaking (and note that I’m assuming ‘the landlord is still running a business on the farm but has leased the farm house’ has a duty to ensure a safe workplace. Under the model Work Health and Safety Act 2011 the concept of ‘worker’ includes a volunteer but Victoria has not adopted that legislation. In Victoria the relevant Act is the Occupational Health and Safety Act 2004 (Vic). This Act is still the old model imposing duties between employees and employers.   A volunteer is not an employee (s 5).   Even so (s 23):

An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.

That must include the tenants, so there is a duty to look out for them.   People who help with firefighting are being exposed to risk so the immediate questions one would ask are: are they trained? Have they been issued appropriate PPE? What is the evacuation plan should it all fail? Are there standards for the design of fire fighting equipment and have they been followed? What knowledge and experience did the designer have in making the system.

Assume a worst case scenario- a fire comes, the tenants stay and activate the fire fighting system and it fails to adequately protect them.   A key issue then will be ‘did it fail to protect because it was a poor design or was the day just an overwhelming day but the design was in fact ‘reasonable’?   Either way the questions asked above will be relevant.

As for It seems to me that I will inevitably be in breach of the requirement to provide a safe workplace, unless I can prove beforehand that my system is foolproof, which it may not be if you think you will be in breach, do something to stop that – get an engineer or someone else to inspect it and give an opinion.   But the system doesn’t have to be ‘foolproof’ only ‘reasonable in all the circumstances’.

Farmers are the sort of people who constantly design their own systems, whether they are reasonable fit for purpose is a question of fact – that is a farmer may well design a great system that works a treat. The fact they are not an engineer and didn’t read a book on the subject won’t matter. On the other hand they may design a system that is obviously flawed and that any outside observer would say ‘that’s not going to work’ or anything in between. The question of whether it complies with the requirements of the Act will depend on what happened and what could and should have been done differently (see Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1).


Categories: Researchers

Mandatory evacuations

Michael Eburn: Australian Emergency Law - 26 December, 2015 - 13:09

In light of the recent Victorian fires I’m asked:

… if you’d write a piece outlining the evacuation legislation in the various states?

It’s my understanding that not all States have mandatory or enforceable evacuation orders, including Victoria which has recommended Lorne residents to leave (happy to be corrected here).

Who can order it? Under what circumstances?

I’m not going to go chapter and verse into all states but for a discussion that may be a bit out of date but still a useful guide, see Elsie Loh, ‘Evacuation powers of emergency workers and emergency-service organisations in Australia’ (2007) 22(4) Australian Journal of Emergency Management 3-7.

The reality is that every state has some provision where an officer in charge or the state emergency manager (by whatever title) can ‘order’ an evacuation and usually can accompany that with a threat of force. As noted the circumstances will differ with each jurisdiction.

The biggest exemption in Victoria where it is still the case that a person who has a pecuniary interest in a property cannot be compelled to evacuate (see Country Fire Authority Act 1958 (Vic) ss 30 and 31 but see contra Emergency Management Act 1986 (Vic) s 36B).

The reality is however that no-one is really going to enforce these. The resources it would take to actually force someone out of the danger zone and the risk to the people (police, CFA etc) to do it would be too burdensome. For further discussion see my earlier post Legality of forced evacuations during NSW Bushfires (January 10, 2014).


Categories: Researchers

What did the Victorian coroner say about the 2009 Murrindindi fire?

Michael Eburn: Australian Emergency Law - 21 December, 2015 - 12:24

According to Asia Pacific Fire Magazine, Victorian Coroner ‘Ian Gray found that if power company AusNet Services had followed basic safety standards the [2009 Marysville] fire [where 40 people were killed] may have been prevented’.

But did the coroner really say that?  And did the coroner’s report really give ‘extraordinary details which have never before been aired in public’ (Steve Lillebuen ‘Coroner finds AusNet could have prevented Marysville’s devastating Black Saturday bushfireThe Age (Online), 4 December 2015).

The actual coroner’s report can be found on the website of the Victorian Coroners Court.  A Victorian coroner:

… investigating a fire must find, if possible—

(a) the cause and origin of the fire; and

(b) the circumstances in which the fire occurred.  (Coroners Act 2008 (Vic) s 68).

For the purpose of making those findings, a coroner ‘may hold an inquest’ (s 53(1); emphasis added).  An inquest is the sort of inquiry that gets reported in the news where witness are called and cross examined in open court.    A coroner can investigate a fire without holding an inquest.  A person may request that the coroner hold an inquest (53(2)).  Where a request has been received, the coroner must advise the person who made the request whether or not an inquest will be held (s 53(2)).    In deciding whether or not to hold an inquest:

… a coroner should liaise with other investigative authorities, official bodies or statutory officers—

(a) to avoid unnecessary duplication of inquiries and investigations; and

(b) to expedite the investigation of deaths and fires. (Coroners Act 2008 (Vic) s 7).

When concluding an investigation into a fire, a coroner may

… make recommendations to any Minister, public statutory authority or entity on any matter connected with a death or fire which the coroner has investigated, including recommendations relating to public health and safety or the administration of justice. (s 72).

In this case the coroner was ‘investigating’ the fire.  He had to determine the matters set out in s 68 and also deal with a request for an inquest.   In rejecting an application for an inquest the Coroner noted that this fire had already been the subject of an extensive police investigation and had been the subject of civil litigation that had settled without any admission of liability.  The coroner made no recommendations to prevent a future fire or to promote public health or safety.

The police investigation, after initially suspecting arson (‘Firefighter Ron Philpott denies arson claims’ News.com.au, 6 May 2009; Margaret Rees ‘Australian firefighter cleared of arson charges in 2009 Victorian bushfireWorld Socialist Web Site, 2 August 2011; Michael Bachelard and Cameron Houston ‘Police ignored Black Saturday evidenceThe Age (Online) 3 July 2011):

… concluded that the cause of the Murrindindi fire was a failed conductor between poles 5 (11525) and 6 (11526) on a section of the Murrindindi power line, which contacted and electrified a boundary fence that then ignited vegetation under the boundary fence’ (Finding Without Inquest into Murrindindi Fire [71]).

Because of the ongoing police investigation and to avoid prejudicing any possible criminal trial, the cause of the Murrindindi fire was not investigated by the 2009 Victorian Bushfires Royal Commission (Finding Without Inquest into Murrindindi Fire [30]).

Civil proceedings against SP AusNet and others settled for $300 million (see ‘Marysville/Murrindindi ‘Black Saturday’ settlement approved (May 29, 2015)).  In that case it was admitted that a power line had ‘failed as a result of arcing between the conductor and a stay wire supporting the relevant pole, the conductor broke and fell, draping itself over a fence abutting the roadside reserve; and the conductor was live and this caused at least one strand in the fence to become electrified’ [75].  Even so AusNet did not admit that this was the cause of the fire.  They argued (at [77]):

… that the fire started away from the fence, and that it was not caused by the electrification of the fence. Among other things, it contended that the arcing between the conductor and the stay wire most likely occurred after the fire had started (as a result of smoke in the air) and that the electric current in the fence would not have been sufficiently strong to ignite a fire.

The result of the coroner’s investigation was a finding (at [90]) that:

  1. the Murrindindi fire occurred between 7 February and 5 March 2009; and
  2. the origin and cause of the Murrindindi fire was a failed conductor between poles 5 (11525) and 6 (11526) on a section of the Murrindindi power line, which contacted and electrified a boundary fence that then ignited vegetation under the boundary fence line along the west side of Wilhelmina Falls Road, Murrindindi.

That is the coroner accepted the findings of the police investigation.

Discussion

The Coroner’s finding that it was the failure of the power line that caused the fire, and not the fire that caused the power line to fail, is a clear attribution of causation that is contrary to the argument put by AusNet in the civil litigation.  In that sense it is ‘the first time, power company AusNet Services has been held directly responsible in court for causing the 2009 bushfire’ (Steve Lillebuen ‘Coroner finds AusNet could have prevented Marysville’s devastating Black Saturday bushfireThe Age (Online), 4 December 2015).

We are told that the fire ‘could have been prevented if a power company had followed basic safety standards, according to an explosive coronial finding’ (Lillebuen) and that the Coroner ‘found that if power company AusNet Services had followed basic safety standards the fire may have been prevented’ (Neil Bibby, ‘Coroner finds AusNet Services could have prevented one of the 2009 Australian firesAsia Pacific Fire Magazine, 10 December 2015).

Actually the coroner didn’t say any of those things.   The coroner did report on the police investigation and quoted from evidence that had been obtained by police including expert’s reports that the power line was too close to the ‘stay’ that was holding up the power pole and that the way the pole was wired ‘does not meet required standards both at the time of measuring (2011) and on 7 February 2009’ ([51]).    A report delivered to the police did say (at [55]):

The risk of fallen conductors is foreseeable and proper application of known technical knowledge and existing procedures should have prevented the failure on the Murrindindi feeder and the subsequent damage that resulted.

In that case the coroner was not yet reporting on anything not previously known.  This was not the coroner’s findings and he did not explicitly adopt the report.

What the State Coroner was able to do, that the police were not, was call upon AustNet to produce various documents and reports (Coroners Act 2008 (Vic) s 42).   The Coroner said (at [56]):

Despite investigators knowing that, following the 7 February 2009 fire, certain augmentation and re-alignment and repairs works were carried out on the electrical hardware at pole 6 and having obtained signed statements from Mr Mitchell and Mr Sullivan, who undertook the repair work, to that effect, AusNet were unable to locate or supply any records relating to these works.

The coroner did not find that AusNet ‘kept no records of repair work completed on the faulty power line’ (Lillebuen), only that they were unable to now locate those records.

So what?

Not much turns on all of this; the things that the reporters say the coroner said can be implied.  They were not said by the Coroner but in reports to the police.  The coroner did not formally adopt or endorse them but he did reach the same conclusion as the police so the endorsement may be inferred.  It is of course a less dramatic headline to say ‘Experts say that the Black Saturday bushfire that destroyed Marysville could have been prevented if a power company had followed basic safety standards – and Coroner reproduces parts of their report in finding’.  The reporting is, as reporting often is, much more dramatic than reality.  The Coroner did not find that the fire could have been prevented, he did not find that there had been any criminal or negligent conduct as that is not the role of the coroner. A Victorian coroner is specifically prohibited from making a finding that any person is guilty of an offence (s 69).   Finding that one party had been ‘negligent’ is not explicitly ruled out in the Act, but in any event the Coroner did not make such a finding.

Further, the coroner’s findings are not ‘binding’.  As noted the civil action against AustNet has already settled and cannot be reopened.  If there was someone who was not part of that class action and they now wanted to sue AusNet they could not rely on the coroner’s findings as proof of causation.  A coroner’s court is not bound by the rules of evidence (s 62); the findings are not admissible in subsequent proceedings (Evidence Act 2008 (Vic) s 91).  Further, AusNet have not resiled from their position that the power line did not cause the fire – ‘”We don’t agree with the [Coroner’s] findings as they were determined without a hearing and the evidence upon which they are based was untested,” a company spokesman said’ (Lillebuen). It follows that if there were further litigation over this fire, the issue of causation could again be revisited, just as it was in other litigation despite the extensive investigation by the 2009 Victorian Bushfires Royal Commission (see ‘Settlement in Black Saturday litigation is approved’ (December 23, 2014); ‘More from the Black Saturday litigation’ (September 6, 2011)).

So what’s the point?  The coroner’s findings have endorsed the conclusion of the police, the community is now better informed and investigators of future fires will be aware how this fire was caused.  This may help some to understand what happened and it may relieve people such as the unfortunate Mr Philpott being subject to the trauma of 2 ½ years of investigation as a suspected arsonist.  The details of the investigation are now quite public and all of that is for the good.   Despite that, and despite nearly 7 years, a Royal Commission, a number of civil cases, extensive police investigation and now this inquiry there is no legally binding determination of what caused the fire.

‘Michael Gunter, an energy industry commentator who had asked for an inquest into bushfires and power line safety’ may believe that ‘the coroner’s finding is a concerning development’ but he may be disappointed.  ‘”I strongly feel that someone should be held accountable for what happened,” he said’ (Lillebuen) but this finding will not hold anyone ‘accountable’.   There was no particular criticism of the individual workers who responded when the power first went out and who for reasons explored and accepted by the coroner ([56]-[61]) failed to see that the conductor had fallen before they re-energised the line.  Lillebuen reports that ‘Energy Safe Victoria said it had insufficient evidence to prove to the required criminal standard that AusNet had breached its general duties on Black Saturday’ so there is unlikely to be any criminal prosecution of AusNet.  AustNet has paid out $260.9 million damages (‘Marysville/Murrindindi ‘Black Saturday’ settlement approved’ (May 29, 2015)). Is that accountability or are ‘Bushfires; the price we pay for electricity(May 20, 2014)?


Categories: Researchers

A duty to treat when on public duty

Michael Eburn: Australian Emergency Law - 14 December, 2015 - 19:45

This question comes from a fellow lawyer and a volunteer with St John Ambulance (Queensland).   My correspondent asks:

A question I haven’t seen directly addressed concerns whether an on-duty volunteer has a positive duty to act and come to the aid of an injured person?  I raise this following on from your remarks in “RFS volunteers as roadside good Samaritans”.  You may wish to comment on a factual scenario as follows:

  • Suppose I am a member of a voluntary community organisation in Queensland – St John Ambulance.
  • St John Ambulance provides first aid services at an event, but is not paid to attend.  A donation may be requested – but not a fee for service “contract”.
  • I agree to perform the particular duty by signing up through the St John system.
  • I attend the duty wearing the St John Uniform.
  • I am approached by a injured person at the event seeking assistance.
  • Do I have a positive duty to act and attempt to assist the injured person? When? Limitations i.e. within my scope of training, etc?

Of course, in most cases the St John volunteer would render assistance – that is why they volunteer, etc.  But is their sufficient proximity to hold a tortious duty to act?  Public policy immunity?  Clearly, they have a duty of care once first aid is commenced.

I raise this as I’m not certain whether the proximity arguments in Lownes v Woods in establishing a duty to rescue would apply in the above factual matrix.  In addition, I note that Deane, J in Jaensch v Coffey made it clear that policy would also need to be considered in the formulation of a duty of care, saying “the notion of proximity is obviously inadequate to provide an automatic or rigid formula to determining liability”.

You may have touched on these issues in earlier articles, however, I was unable to find anything directly on point.  Where do you side is this ideological debate?  With the liberalist assertion that it is illegitimate to use the coercive power of the state to enforce positive duties of beneficence in terms of encroaching on individual liberty or the more philosophical utilitarian argument for a duty to rescue.

I don’t see this is part of the ideological debate about whether or not there is a duty to rescue at all – that debate revolves around the question of a duty to come to the aid of a stranger – a person with whom the potential rescuer has no other relationship. Some people do have a duty to ‘rescue’, the traditional relationships are teacher/student, gaoler/prisoner, doctor/patient etc. What made Lowns v Woods (1996) Aust Torts Reports 81-376 unique is that Dr Lowns was asked to travel to assist Patrick Woods even though the young boy was not and had never been his patient.

Jaensch v Coffey (1984) 155 CLR 549 was a case about negligent infliction of mental harm and trying to determine to whom a duty of care was owed, I don’t think it’s really relevant here for reasons I’ll give below.

What the scenario I’m asked to consider is where St John are on duty for an event organiser and a participant of the event seeks assistance. This is not about a duty to rescue a ‘stranger’ this is about performing the very duty one is there to do. If we go back to the start of negligence law and Donoghue v Stevenson [1932] AC 562 (the famous snail in the ginger beer case) it was said we owe a duty to those most likely to be affected by our acts or omissions. The issues of ‘proximity’ that my correspondent raised reflect debates in the cases over how to limit that duty as we can imagine many fanciful steps that would see liability extending forever. Courts know that can’t be how it would work so there are some outer limits, but in this case the people most directly affected are the event organiser and the potential patients.

The event organiser needs (or wants) first aid attendance at the event so there is an agreement with St John. If they don’t perform the duty they have agreed to do then the event organiser cannot provide the service agreed, or reasonably expected, by participants. If there is a first aid tent but the first aiders refuse to treat someone who is directly affected by that decision but the patient.

The fact that St John may not receive a fee for their attendance does not mean there is no agreement.   St John agree to attend and provide first aid services and in return, if nothing else, the members get to go and do what they chose to volunteer for and for which they receive the reward that they perceive they get. The organiser relies on St John, if they thought St John were going to show up but not treat people they wouldn’t invite them and would get someone else to provide the first aid services. There is both an exchange of promises and reliance sufficient in my view to give rise to a contract.

So St John owe a duty to the organisers and the patients. That duty would arise both under the common law of negligence and under contract. I cannot see anyone seriously running the argument that the volunteer on duty did not have a duty to treat a person who attended the first aid post seeking assistance.

I don’t see this cases raises any of the issues raised by Lowns v Woods or Jaensch v Coffey. This is not about treating a stranger (see Who to treat? A question for St John first aiders (June 30, 2013)) or extending a duty to new areas. Here the presence of the duty to treat is axiomatic.  If one did want ot consider the arguments in Lowns v Woods (1996) Aust Torts Reports 81-376 in that case the doctor was approached at his surgery where he was ready to see patients but not yet seeing any patients. He was approached because he was a doctor and the patient was clearly physically close as the person seeking assistance had run to the surgery. If that was sufficient to establish liability it would be more so here. Here the first aider is approached at the place where they are holding themselves out to provide first aid, they are ready to see patients, the patient has come to them so they are close and unlike the doctor who had an appointment system to see his pre-existing patients, the St John volunteers are saying ‘we are here for everyone at this event’. If Dr Lowns owed a duty of care (which he did) then the St John volunteers in the circumstances described here do too; even more so.

Who would be liable? It might be argued that the volunteer has no duty as he or she is a volunteer, but St John would have the duty. St John agreed to provide first aiders and if the person who attended does not give first aid, St John has failed in its obligations. If I was the lawyer and if the patient could prove that the failure to administer first aid made their case worse you would run the case that both the volunteer and St John were negligent. If the volunteer was negligent St John would be vicariously liable and if St John were negligent they would be liable in their own right.

As for vicarious liability one might argue that the failure of the first aider meant they were ‘on a frolic of their own’ and there should be no vicarious liability but remember that the point of a negligence action is to ensure that the person who suffers a loss receives compensation. To allow St John ‘off the hook’ would deprive the injured person of an effective remedy. The person on duty is there representing St John in their uniform, their failure is St John’s failure so I don’t think a court would accept that St John should not carry the responsibility for their failure.

To conclude

In the scenario described there would be a duty to treat. This is not about a duty to treat a stranger. There is no law directly on point because a) first aiders don’t get sued, b) first aiders on duty one assumes actually treat people who come to them and c) the case would never get to court on that issue. The presence of a duty in that case is axiomatic, no-one could seriously argue there was no duty to treat.

In my view the first aid organisation (that for this example we’ve been calling St John) would be liable both in its own right for failing to provide the agreed service and for failing in its duty and also for negligence of its volunteer.


Categories: Researchers

An armed SES?

Michael Eburn: Australian Emergency Law - 14 December, 2015 - 11:18

This is a concerning scenario – my original correspondent provided more detail but to keep the question general I have edited the original question.

My SES Unit was asked by Police to help search for a mentally disturbed person who was known to be armed with a knife.  The person was believed to be a threat to themselves not to others.  Even so the police involved in the search were wearing their normal appointments (gun, baton, capsicum spray, Tazers).   SES members were however tasked to the search and there insufficient police numbers to ‘buddy’ each SES member with a police officer.

On member raised a concern as to safety and was advised to “call on the radio” but there were not enough radios to go around and one could have been subject to a quick and violent surprise attack with no chance to call for help; and what could another member do who might have been close by?

I know I could have just “unvolunteered” and went home but that would not help my fellow members.  I know the normal rules for self-defence apply but we had nothing to protect ourselves should the person have used a knife against us.

  • Could we reasonably “arm” ourselves knowing the level of threat they are being sent into? Could one, considering its rough bushland carry a non SES issue, knife or machete? Or pick up a big stick?
  • If all SES members refuse to help, what could the Police do?
  • Does the SES response cover this situation?
  • Who will be responsible for any injury to a SES member. Police or SES?
  • Who will support any SES member, who injures such a person in this type of incident, against any legal threats civil or legislation?
  • The Police would be operating under the NSW Mental Health Act, Where does the SES members stand under this Act in this situation?

The law of self-defence is set out in an earlier posts see

‘Arming’ oneself is difficult.  Of course carrying a stick is not in itself an offence.  Carrying a knife might be illegal, carrying a machete would be.    An offensive implement is ‘anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property’ (Summary Offences Act 1988 (NSW) s 1B(3)).  It is an offense to have an offensive implement in a public place (s 1B(1)).

If you are carrying a stick or a knife or a machete for the purpose of ‘injuring’ or ‘menacing’ a person that is an offence unless you have a ‘reasonable excuse’.  One might argue that looking for a missing mentally disturbed person gives rise to a reasonable excuse.  In Taikato v R (1996) 186 CLR 45 Mrs Taikato argued that carrying a ‘pressurised canister of formaldehyde’ was lawful.  She told police ‘she had had the canister for a few years and that, although she had never used it, she carried it so that she could defend herself if someone attacked her’.  The High Court of Australia rejected her argument. They said that although using a weapon may be lawful in self defence.  Chief Justice Brennan along with Justices Toohey, Mchugh and Gummow said:

The law authorises a person to assault another person in self-defence only when certain conditions are fulfilled. No legal right of self-defence arises until there is a reasonable apprehension of attack by the person who is assaulted…  Because the existence of a right of self-defence cannot be determined until after the fact of a particular attack or threatened attack, it makes no sense, absent an actual or threatened attack, to talk of possession for self-defence as a “lawful purpose”. Self-defence in the colloquial sense is not a “lawful purpose” … Action in self-defence can only be taken for a “lawful purpose” when there is a lawful right entitling the person in danger of attack to take certain limited steps to use force against another person. It is only after the circumstances of the attack and the defendant’s response are evaluated that a court can determine whether the person was exercising the right of self-defence. Only then can it be determined whether a particular weapon was used for a “lawful purpose”. Accordingly, possession of a dangerous article for the purpose of “self-defence” is not possession for a “lawful purpose” …

Whether it’s a ‘reasonable excuse’ requires consideration of:

(a)        the immediacy of the perceived threat to the person charged; and

(b)        the circumstances, such as the time and location, in which the thing was possessed; and

(c)        the type of thing possessed; and

(d)        the age, characteristics and experiences of the person charged.”

For the SES volunteers in this question the ‘immediacy’ of the potential threat is much closer than for Mrs Taikato, but even so the question of whether or not ‘arming’ oneself was reasonable can only be determined after the fact taking into account all the factors.  It’s hard to imagine a court would accept the SES arming themselves with a knife was ever a reasonable response to the risk as other responses are available.  In short I would suggest it would not be ‘reasonable’ for the SES to arm themselves with a stick or a knife.  If members are that concerned, they should simply refuse to take part in the search.

If the SES members refused to help, the police would have to find another solution, perhaps call in more police.   No doubt they could complain to SES higher authorities but the better response would be to refer the matter up the chain of command of both organisations.

Does the SES response cover the situation?  I’m not sure what is meant by that but one of the functions for the SES is ‘to assist, at their request, members of the NSW Police Force … in dealing with any incident or emergency (State Emergency Service Act 1989 (NSW) s 8(1)(g)).   Taking part in this search would be a legitimate SES function.   It follows that if a member of the SES were injured they would be entitled to compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).

Whether anyone would be found to be negligent or liable under the Work Health and Safety Act 2011 (NSW) would depend on all the circumstances and what happened.  Remember that under the WHS Act the PCBU has to consider what is ‘reasonably practicable’ which includes

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about:

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

Importantly there would be a risk in not searching for the person. The delay that may be occasioned in bringing more police to the scene may make that risk bigger. If the belief that the person is only a threat to themselves is based on the best available intelligence then it may be that even though it would be better to use police that is not ‘reasonably practicable’.  In all the circumstances it may not be a breach of the WHS Act to use SES Volunteers but, one has to remember, that assessment really is a case by case judgement.

Assume the SES member did ‘arm’ him or herself and used that weapon when they found the person.  In terms of civil litigation, members are not liable for acts ‘done in good faith’.  Whilst that could be debatable one has to remember that the aim of civil litigation is to ensure a person who is entitled to compensation receives it.    Actually arming oneself particularly with a machete may make the good faith argument hard to sustain but given the members were tasked with the search and depending on the specific instructions given, I suspect a court would want to find the SES (and so the NSW government) liable (should there be any liability) rather than a member.

Criminal liability is personal.  That means if the member were charged with an offence under the Summary Offences Act or assault or worse where force is used in circumstances that do not amount to lawful self-defence then it is the individual who is liable.  Even if the government agreed to pay the fine, the SES or the police don’t get the criminal record or go to gaol on the member’s behalf.

Members of the SES don’t have any authority under the Mental Health Act 2007 (NSW).  Police may apprehend a person who is mentally ill and posing a threat to themselves or others. They may do that on their own initiative (s 22) or at the request of a treating medical practitioner (ss 19 and 49) or paramedic (s 21).     The SES could assist the police in the search but have no specific power to detain the person if they find them.  The police can of course ask for assistance so if a police officer were attempting to detain the person the SES could help because it is actually the police officer that is exercising the authority.  Police may use ‘reasonable force’ in the execution of their duties (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 230) and just as that may include the use of a dog, so too calling upon the SES to ‘lend a hand’ to restrain someone may be a ‘reasonable’ use of force.    If the SES found the person, and he or she was not acting violently or threatening suicide, the best action would be to try and keep everyone calm and wait for the arrival of police or, ideally, a mental health professional.  If the person was trying to kill him or herself it is lawful to use reasonable force to prevent a suicide (Crimes Act 1900 (NSW) s 574B).

Important disclaimer

Clearly I am not making comments that could be applied to the specific search.  I do not have all the facts or know the circumstances so this has to be read as a general statement of some relevant legal principles. If the members are concerned about the risk they were exposed to this should be raised through an appropriate chain of command rather than debated here.   As noted this has to be read as an exploration of general principles only.


Categories: Researchers

Delegation from Local Government under the Bushfires Act 1954 (WA)

Michael Eburn: Australian Emergency Law - 14 December, 2015 - 10:00

This question comes, I assume, from a WA volunteer who asks:

If a Local Government (Council) delegates its authority to the CEO, can the CEO then sub delegate its authority and responsibility/actions to another staff member, this is separate to the appointed operational positions like the Chief Bushfire Control Officer or Fire Control Officer. This question is more in relation to administration and specifically … Local Laws which allows a terminated member to appeal the termination to Council/ Local Government

The power of a local government to delegate the performance of its functions is found in the Bushfires Act 1954 (WA) s 48.  Section 48(1) says ‘A local government may, in writing, delegate to its chief executive officer the performance of any of its functions under this Act’.  Section 48(3) says, however, that ‘A delegation under this section does not include the power to subdelegate’.  Section 48(4) says ‘Nothing in this section is to be read as limiting the ability of a local government to act through its council, members of staff or agents in the normal course of business’.

What follows is that the Local Government may delegate to the CEO the powers and responsibilities that are vested in the Local Government to the CEO so that his or her decision on any matter is a decision of the Local Government.  The CEO cannot appoint someone else to take on those roles but he or she can assign work to the council staff or the like to assist him or her in the performance of those functions.

Local government functions that could be delegated to the CEO might include:

13        Request the FES Commissioner to authorise a bush fire liaison officer or another person to take control of all operations in relation to a fire

17(7) & 18(5)  Vary restricted burning times

22        Arrange with land holders and a bush fire brigade to co-operate in burning fire-breaks

23        Prohibit burning during prohibited burning times

24B      Authorise an officer of the local government to require a person to produce the permit to burn issued to them under the provisions of the Act

24F      Give permission to use an incinerator that is within 2m of a building or fence to burn garden refuse during prohibited burning times

24G      Further restrict burning of garden refuse

25        Give certain approvals for the lighting of fires

25A(5) Prohibit an exempt person from lighting a fire to which the exemption relates for such period as  specified

27        Prohibit, or in some cases permit, the use of tractors or engines except under certain conditions

27D      Impose Requirements for carriage and deposit of incendiary material

28        Seek to recover the expenses incurred in responding to a fire that has not been controlled by the occupier of the land as required by s 28(1)

33        Require the occupier of land to plough or clear fire-break (this section also refers to a ‘duly authorised officer’ so other may be authorised for that purpose)

36        Expend moneys in connection with control and extinguishment of bush fires

37        Obtain and keep current a relevant policy of compensation insurance for volunteer firefighters

38        Appoint a bush fire control officer

40        Join in appointing and employing bush fire control officers

41        Establish and maintain one or more bush fire brigades

42        Join in establishing bush fire brigade

46        Prohibit, or from time to time postpone the lighting of a fire

50         Maintained required records

52        Apply to the Minister to have the district or part of it declared an approved area for a bush fire brigade

59        Prosecute of offences (the power to investigate and prosecute offences can also be delegated to ‘to its bush fire control officer, or other officer’ (s 59(3)

67        Appoint an advisory committees

68        Appoint regional advisory committees

Local governments may make local laws with respect to ‘the organisation, establishment, maintenance and equipment with appliances and apparatus of bush fire brigades to be established and maintained by the local government’ (s 62(1)(b)).  Local laws must be made in accordance with the provision of the Local Government Act 1995 (WA).   The power to make local laws cannot be delegated to the CEO.

What follows is that the Local Government can make local laws for the operation of a brigade that can provide for the membership, and removal of membership of members of the Brigade.  The local laws cannot be inconsistent with the Bushfires Act or a regulation made under the Act (s Bushfires Act 1954 (WA) 62(2)).    Assuming there is no inconsistency the local laws could provide for an appeal

  • To the council which could delegate the decision making power to the CEO (Local Government Act 1995 (WA) s 5.42). Subject to the terms of the delegation, the CEO could further delegate that decision make power (s 5.44)
  • An appeal to the CEO who could, subject to the terms of the local law, delegate the decision making power (Local Government Act 1995 (WA) s 5.44)
  • An appeal to another person or office holder identified in the Local Law.

Categories: Researchers

Liability for escape of clearing fire (WA)

Michael Eburn: Australian Emergency Law - 11 December, 2015 - 12:25

In Boyle v Yeing [2015] WASCA 241 (1 December 2015) the Court of Appeal in Western Australia upheld a finding that a farmer was liable to his neighbour when a fire that was set to burn off wheat stubble escaped onto the neighbouring property destroying valuable farm equipment.    The case turned on its particular facts rather than saying anything interesting about the law, but I’ll repot it in any event.

The defendant, Mr Boyle ‘was an experienced farmer and was experienced in carrying out stubble burns’.  Further he was ‘also the chief bushfire control officer for the Shire of York and had held that position for 20 years’ ([7]).   He determined to burn off the stubble on 18 May 2009.  At that time of year he was ‘not required to obtain a permit or to notify his neighbour of his intention to burn’ ([6]).   The burn commenced at 9.30am and was concluded at 2.30pm.   At the conclusion of the burn Mr Boyle along with his son and an employee (an Irish backpacker who had been on the property for 2 months and whose only experience with burning off had been gained on that property) drove around the burn and decided that the burn area had been extinguished and was now safe.  Mr Boyle and his son left the area to attend to other matters.  The employee was instructed to remain patrolling the burned area for another hour.  At 4pm this employee ‘considered that the fires were ‘completely out’’ ([11]) so he left too.  Of course the fire wasn’t completely out and an ember carried to the neighbouring property and started the fire that damaged the machinery standing in the stubble paddock of that property.

There was no doubt that Mr Boyle owed a duty to take reasonable care in how he managed the fire.  What became critical in the decision was the fact that the weather had changed since the burn commenced so that by 2.30pm there was a 19km/h wind blowing toward the neighbour’s farm and Mr Boyle knew that there was dry stubble on that farm with harvesting equipment standing amid the stubble.  Accordingly the trial judge found that the patrolling should have continued until dusk when it would be easier to see if there were still embers in trees or in the wheat stubble.    With that knowledge the experienced Mr Boyle left his inexperienced employee to do the final patrols and come to his own conclusion that it was safe to leave.

The trial judge found that there was negligence. On appeal Mr Boyle argued that the evidence did not support the trial judge’s conclusions but the court of appeal rejected each submission finding that the decisions of the judge were open on the evidence and so the finding stands.

There are two interesting observations to make.  First Mr Boyle was in a difficult position of trying to argue that everything he did was in fact and law reasonable, even though it was clearly not enough as the fire did spread and cause damage.    Although the courts try to look at these issues at the point of time of the decision making it is hard not to be influenced by knowledge of what actually happened.  Mr Boyle, and others, may well think that what he did was ‘reasonable’ or ‘what I would have done’ but that would have left Mr Yeing with the cost of the damage to his property.  It’s always hard to say one took ‘reasonable precautions’ against a particular outcome (in this case the fire spreading) when that very outcome occurs.

Second, one of the things a court has to consider when deciding whether or not the defendant’s actions were reasonable is the ‘social utility of the activity that creates the risk of harm’ (Civil Liability Act 2002 (WA) s 5B).   In another Western Australia case, Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation And Land Management [2012] WASCA 79, the Department was not liable for the damage to the plaintiff’s grape crop caused by smoke from a planned hazard reduction burn.  An issue in that case was the ‘social utility’ involved in a burn designed to reduce the bushfire hazard to a community. The majority of the appeal judges in that case found that there was a significant social utility such that the Department was not liable even though they were aware of the risk to the plaintiff’s property and had been asked to defer the burn (see No liability for damage to grapes caused by WA hazard reduction burn (April 25, 2012).

In Boyle v Yeing the court found that there was no social utility ‘in the burn in that it was done to advance the appellants’ private economic interests’.   The issue of social utility will clearly play a bigger role when a fire is being set by a government agency in order to protect communities and community assets over a private fire set for private gain.  If one is going to set a fire for private gain there can be no ‘trade off’ to say that the gain to the private landholder is ‘worth’ the potential loss to the neighbour.


Categories: Researchers

Carrying your uniform in the car

Michael Eburn: Australian Emergency Law - 11 December, 2015 - 10:18

This question comes from a volunteer with NSW SES.  My correspondent says:

I understand that if we are in uniform and/or in a SES vehicle we must stop at the scene of any accident that we come across. I also carry in my car a spare set of Orange SES PPE. I have used this on occasions when travelling in my own car and come across an accident (where I have stopped, put on PPE and rendered assistance until Fire Rescue arrived). Is the first statement correct and in regards to the second statement can I use SES PPE and what obligations does this make to me personally and to the SES?

As for whether or not the SES volunteers needs to stop when in an SES vehicle see:

Can you use the PPE?  I’ll answer this from a lawyers’ perspective (as you would expect) and answer what obligations or difference would it make?

The first thing to consider is of course, safety.  The point of bright orange PPE with reflective stripes is that it is visible, day and night.  As a matter of common sense you put it on just as any worker with high-vis PPE would or should put it on if they found themselves working at a roadside accident.

What difference would it make if the PPE said ‘SES’ or ‘ABC Mining Company’?  The NSW SES is the combat agency for floods, storms and tsunami.  It is also the case that the SES is ‘to carry out, by accredited SES units, rescue operations allocated by the State Rescue Board’ (State Emergency Service Act 1989 (NSW) s 8).   That does not mean that every member is trained in all aspects of SES tasks.  The SES member who comes across an accident may spend all their volunteering time in a comms room and know nothing about road crash rescue or tarping a roof.  Alternatively they may be an experienced rescue operator and community first responder.   What they can do to assist at the accident will depend very much on their training and experience, not on the mere fact that they are a member of the SES.    The same is true of the person from ‘ABC Mining Company’; they may be an underground miner with no relevant training, or they may be a company paramedic.  What you might expect from them depends on what they know, not what their shirt says.

Let us assume something does go wrong and there’s some legal action (remembering NO-ONE’s been sued for rendering first aid at an accident) then the fact that you are in the SES could lead to an argument that you should have reacted as the ‘reasonable’ SES member but that is some fictitious ‘average’. Again the ‘reasonable’ SES member may have no more than a senior first aid certificate so the mere fact that you are in the SES cannot mean that you are expected to perform as a paramedic or some other rescuer.  Not all SES members are rescuers so provided you did what you can within the limits of your training then you’ve acted reasonably.

If the concern is that your attempt at first aid made the situation worse, you would be able to rely on the Good Samaritan legislation (Civil Liability Act 2002 (NSW)) to the effect that there can be no liability for acts done ‘in good faith’ that is with a genuine intention to help the person.

Whether you could rely on the protection provided by the State Emergency Service Act 1989 (NSW) s 25 would be debatable.   That section says:

(1) A matter or thing done by:

(a) a member of the State Emergency Service, including a member of an SES unit…

does not, if the matter or thing was done in good faith for the purpose of exercising the functions of or assisting the State Emergency Service or the Consultative Council, subject the member, officer or volunteer personally to any action, liability, claim or demand.

At the time of being at an accident that you have just come across you are not performing any of the functions set out in s 8 though you would be once the other emergency services arrive and take control of the scene and if they ask you to continue with whatever task you are doing (s 8(g)).

Whilst I say the application of s 25 is arguable, I would find it hard to believe that either the SES or their insurer would want to be seen to argue that stopping and helping at a car accident was not an appropriate thing for an SES volunteer to do.  The community funds the emergency services, including the SES to provide services in an emergency.    It is part of the National Strategy on Disaster Resilience that we should develop resilient communities that must, in part, mean having members of the community who can assist such as SES and RFS volunteers.  To suggest that they are not performing an SES duty when they stop and assist at emergency pending arrival of the other emergency services may be arguable, but it would be politically difficult to maintain.

Conclusion

I can see no legal reason why a member of the SES would not, or should not, put on their PPE if they stopped at the scene of a car accident.  Their primary concern at that point is their own safety and that is what PPE is for.


Categories: Researchers

Searching the unconscious patient

Michael Eburn: Australian Emergency Law - 11 December, 2015 - 09:39

I am a volunteer with St John Ambulance (NSW) and an interesting scenario came up at our training. We’re responding to an unconscious patient (suspected drug overdose) at a musical festival. There is no one else with the patient that knows him, so we are unable to ascertain his identity for the completion of our patient record and/or handover to paramedics.

The question is: are we allowed to go through the patient’s wallet/personal items to look for some sort of ID?

The nature of the patient’s injuries here are irrelevant, ie it doesn’t matter if they’re unconscious due to a suspected drug overdose, head injury or unknown causes.  The relevant principle is the principle of necessity. Remember that any touching no matter how slight may be a battery, but as Lord Goff said in Collins v Wilcock [1984] 3 All ER 374 at 378 ‘so widely drawn a principle must inevitably be subject to exceptions’.  One exception is the principle of necessity that justifies the provision of medical treatment to those that cannot consent.  Again it was Lord Goff who said, In Re F [1990] 2 AC 1:

… to fall within the principle [of necessity], not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.

His point was that this doctrine was not just a doctrine of emergency, but of necessity.  Is it necessary, ‘acting in the best interests of the assisted person’ to look for ID? I would think it is.  You need to search them:

  1. To locate and take care of their personal items, wallets, phones, keys etc are likely to get lost in treatment and transfer so collecting them together is in the person’s best interests;
  2. To remove items from pockets that are going to cause discomfort or further injury eg to stop them lying on their phones, keys etc and this again is in their best interests.
  3. To find a more complete history of the patient, you may find identifying material that reveals a relevant medical history that causes you to review the original diagnosis eg you believe they have a suspected drug overdose and you find further drugs that may add evidence to confirm your suspicions but equally you may find evidence that they are in fact diabetic, or epileptic or have some other condition that makes you rethink your working diagnosis. Provided the search is for that purpose and not, say for law enforcement, then again it is an action taken in their best interests.
  4. Finding ID will, as my correspondent first raised, allow the first aiders to complete their patient record and if they hand that to the paramedics it will allow the records to be held together. If the St John record has no name on it, then at some point someone is going to question who does it relate to and if they can’t positively link it to a patient it becomes less than useless.   Ensuring that there is a complete record to contribute to continuity of care will also be action taken ‘in the best interests of the assisted person’.

There is probably also a common law right to search the person to protect the first aider ie to locate things that may be on the person that could injure the first aider such as sharps or weapons.  In saying that I’m drawing (in my mind) an analogy with the common law powers of police to search a person on arrest (Clarke v Bailey (1933) 33 SR(NSW) 303).  That’s not a clear parallel but I think it could be argued.

Certainly you will want to find out if a person has sharp items in their pockets as they pose a risk to the patient as well as the first aider, but that can’t justify searching their bag to look for weapons or other sharps or just to satisfy your curiosity.

Conclusion

You can search a person who cannot consent to treatment, and go through their wallet and personal items provided the action is ‘reasonable’ and your motivation is to find information you need to act in their best interests.   You might collect their personal items together and go through their wallet to find ID and any medical history, but having done that you stop.  There is no need to try to access their phone or go through their bag to see what else you can find.


Categories: Researchers

Liability, or insurance, for WA volunteer bushfire firefighters

Michael Eburn: Australian Emergency Law - 7 December, 2015 - 10:44

This question comes from a West Australian bushfire volunteer:

I was wondering if you can help clarify if volunteer bushfire brigade members are insured while undertaking controlled burns for land owners on private property.

It has long been my understanding that this is not a “Normal brigade activity” and therefore not covered by Section 37, bushfires Act 1954 unless it’s duly authorised by the local government.

35A. Terms used

normal brigade activities means the following activities when carried out by a volunteer fire fighter —

(a) the prevention, control or extinguishment of bushfires;…

(c)  any bushfire prevention activity including the burning, ploughing or clearing of fire-breaks or any other operation, including but without being limited to, the inspection of fire-breaks or other works and the survey of areas for the purpose of detecting fire or ascertaining the need for precautions against the outbreak of fire, but not including the activities of an owner or occupier providing a fire-break or fire prevention works on his own property in order to comply with a notice given under section 33(1) or a local law made under section 33(5a);

(d) demonstrations, exercises, fundraising, promotions, public education, competitions or a training process for volunteers; …

(h) attending an incident where the skills of a volunteer fire fighter or the operation of fire fighting equipment may reduce or remove a perceived threat to life or property; …

The first thing to understand is that insurance is a gamble between the insured and the insurer. For a payment of a premium the insured effectively bets with the insurer that an event will happen. For example when you pay a premium to ensure your car you are betting with the insurance company that you are going to crash that car that year. If you do crash the car you “win” and the insurance company has to meet your legal liability to cover damage to any other vehicle and repair your vehicle. If you don’t crash the car, the insurance company “wins” because they get to keep your premium. The insurance company wins more than it loses and so makes a profit.

The point of that story is that the relevant person is the “insured” who enters into a contract with the insurer to transfer their risk. What that means is that the presence or absence of insurance does not determine liability. In this context that means if the bushfire brigade or the council that operates it is liable for the negligence of a firefighter they are liable whether or not they have insurance. If they have insurance and the insurance company meets the liability, if they do not then the liability must be met from general revenue. It also means that it is the risk that the insured faces that is the subject of the insurance.

The question for a firefighter then, is not “are we insured?” but “who will be liable?”

As noted in an earlier post, Work health and safety responsibility for Western Australian bushfire brigades (November 14, 2015), many people have responsibility for the safe operation of a West Australian bushfire brigade but the starting point must be the local government authority that has established the brigade (bushfires Act 1954 (WA) s 41).

Undertaking a controlled burn on private property could well fall within the definition of a “normal brigade activity”. Such an activity may be for the “prevention” of a bushfire (s 35A (a)), provides training for volunteers (s 35A (d)) and may “may reduce or remove a perceived threat to life or property” that would exist if the firefighters were not there. In particular s 35A(c) provides for hazard reduction work. It should be noted that it does not include work on private property where that work is being undertaken to comply with a notice given under section 33(1).

Section 33(1) provides that a local government may serve a notice on a landowner requiring him or her to take fire prevention measures. Where the landowner does not meet the requirements of the notice the local bushfire control officer may step in to do what has to be done and then bill the landowner for the expenses incurred.  The definition of “normal brigade activities” only excludes action taken to comply with that notice. Action taken to reduce bushfire hazard where no notice is been received is a “normal brigade activity” and is not excluded by s 35A(c).  Action taken where a notice has been received and where the appropriate steps have been followed is specifically authorised by s 33(4). Where action is required to comply with a local law, then again the local government may take steps to do what needs to be done and then bill the landowner (s 33(5b)).

Finally s 33(6) says:

A local government may, at the request of the owner or occupier of land within its district, carry out on the land, at the expense of the owner or occupier, any works for the removal or abatement of a fire danger…

The local government may use its resources, which include the bushfire brigade, to complete that work. Presumably most “controlled burns for landowners on private property” are conducted pursuant to this section and the local government charges for the use of fire brigade resources. What follows is that if the bushfire brigade is conducting these activities with appropriate authorisation then the members are clearly performing their duties as a volunteer firefighters. If they are conducting operations that are authorised by s 33 they are clearly representing the local government authority.

Even if firefighting is not authorised under s 33 it may be a “normal brigade activity” within the meaning of s 35A. If a landowner approached the bushfire brigade and asked them to come and help may agree to because they thought it was a useful training process that the landowner has asked them not as individuals but as members of the bushfire brigade and they are clearly turning out as part of that brigade.

The members might be on a “frolic of their own” if for example, a landowner contacted their neighbour, who happened to be the brigade captain, and asked if he could come and help with the burn. If the brigade captain said “sure and I’ll ask a couple of mates and will borrow the fire appliance” then it may be that that brigade captain is acting in a personal capacity. Whether the firefighters know that or not would depend on what they are told.   In that case it would be arguable that any liability would fall to the landowner on his behalf the fire prevention work is being done.

To return to the question asked which was could I “help clarify if volunteer bushfire brigade members are insured while undertaking controlled burns for land owners on private property”?

When the firefighters are performing a function that is a normal brigade activity within the meaning of s 35A or authorised under s 33 then clearly they are acting as the brigade. If they were somehow negligent and the fire damaged either the land owner’s property or a neighbouring property or injured someone, then any civil liability would attach to the local government authority that owns the brigade. The firefighters would not be liable because they are not acting in their own interest but as part of the local government’s brigade. Is not a question of insurance: if the local government has insurance in the insurance company will meet the liability, if they do not have insurance that they will need to meet the liability from their general revenue.

It is my view that in most cases conducting a hazard reduction burn on private property will be authorised under s 33 (either subsection (4), (5b) or (6)) and brigade members who are part of the team are clearly acting as a local government resource and should there be any liability it will fall to the local government not the firefighters. The question of insurance is not relevant.

NOTE: I have not attempted to discuss whether there would be liability, what constitutes negligence or any defences that might be available under the legislation because that was not the issue in the question. My conclusion only applies if there is liability without entering to into the debate of if and when liability might be established.


Categories: Researchers

Your rights under lights and siren

Michael Eburn: Australian Emergency Law - 4 December, 2015 - 09:38

I’m asked this question by a NSW volunteer but let me jump to the conclusion – lights and sirens don’t give you any rights.  Now to the question:

I was told other vehicles must give way to emergency vehicles when under lights and sirens but I’ve also been told that if you’re under lights and sirens it does not give you the right-of-way. Of course you have to take care at all times but I’m interested in know what rights does the driver of an emergency services vehicles under lights and sirens have.

The relevant provisions of the Australian Road Rules (reproduced in NSW as the Road Rules 2014 (NSW) are rules 78, 79 and 306.

Rule 78 says:

(1) A driver must not move into the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.

Maximum penalty: 20 penalty units.

(2) If a driver is in the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm, the driver must move out of the path of the vehicle as soon as the driver can do so safely.

Maximum penalty: 20 penalty units.

(3) This rule applies to the driver despite any other rule of these Rules.

(See also Making way for emergency vehicles (May 18, 2015)).

Rule 79 says:

(1) A driver must give way to a police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.

Maximum penalty: 20 penalty units.

(2) This rule applies to the driver despite any other rule of these Rules that would otherwise require the driver of a police or emergency vehicle to give way to the driver.

Rule 306 we know well and it says:

A provision of these Rules does not apply to the driver of an emergency vehicle if:

(a) in the circumstances:

(i) the driver is taking reasonable care, and

(ii) it is reasonable that the rule should not apply, and

(b) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm.

Rules 78 and 79 don’t give the driver of the emergency vehicle any ‘rights’.  They impose an obligation upon other drivers and if they don’t honour that obligation they can be fined up to $2200 (a penalty unit, in NSW, is $110 Crimes Sentencing Procedure Act 1999 (NSW) s 17).   But that doesn’t give the driver of the emergency vehicle the right to run into them or to expect that a driver will give way.  A driver approaching a green traffic light may not have seen, heard, understood or been either willing or able to give way to an approaching fire appliance.  The fact that they are committing an offence does not justify either assuming they will or have given way – the driver of the appliance still has to stop and make sure it’s safe to proceed before doing so.

Rule 306 doesn’t give any ‘rights’ either; it does provide that if the circumstances set out apply, the driver has a defence if he or she is issued with an infringement notice for breaching one of the other road rules.  Remember offences such as dangerous driving causing death or injury and manslaughter are not dealt with in the road rules, so rule 306 has no application if a driver is charged with one of those offences (see Tragic outcome from RFS response (April 4, 2013)).  The rule and the expectation that drivers do drive under ‘response’ conditions will be relevant in deciding whether or not the driver was driving with ‘gross negligence’ (which is what is required for one of those offences) but it is just one relevant factor, it is not a ‘defence’.

Although it’s not a statement of the law a useful way to think about lights and sirens is, at best, they constitute a request to other drivers to make way for you.

PS after posting this, a commentator wrote, in response to an earlier post (see Red/blue lights but no siren? (November 29, 2015)) that ‘Emergency driving is a privilege, not a right…’.  That’s the gist of my answer here, distilled to 8 words!


Categories: Researchers