Negligence claims relating to PTSD

It is well known that members of the emergency services are exposed to multiple traumatic events over their career and this makes them susceptible to psychological injury including Post-Traumatic Stress Disorder (PTSD).  It might also be accepted that within these services that ‘it’s not in the culture to discuss your mental health with other … officers’.  Admitting that one is having trouble coping may not only bring peer pressure, it may limit further career opportunities and even tenure in the job that may be central to a person’s identity.  The dilemma of having to take steps to care for a worker, and that means both their physical and mental health, whilst respecting an adult’s right to privacy and to make their own health care decisions has been recognised by the courts, not necessarily to the employees benefit.

The most recent case is [Name omitted] v State of New South Wales [2018] NSWDC 119 that in turn relied on an earlier decision in Hegarty v Queensland Ambulance Service [2007] QCA 366.

The plaintiff was a police officer with NSW Police from 6 May 2003 until her discharge on 7 June 2012. We don’t need to detail the events suffice to say that she attended many traumatic events that exposed her to scenes of death, injury and violence.  She developed symptoms of psychiatric injury and took time off work and received workers compensation for time off.

Workers compensation is a no fault scheme. The claimant does not have to prove negligence but the amount of compensation payable is strictly limited by the relevant legislation.  In 2014 she began an action against the State, on behalf of NSW Police, alleging her injuries were caused by or aggravated by negligence or a lack of reasonable care, by the Police.  A claim for negligence can lead to more generous awards than workers compensation but does require proof of negligence.

In this case the plaintiff alleged that the Police Force was negligent [342] in that it failed to take ‘…  active measures to avoid the risk of further psychological injury to the plaintiff …’  The difficulty in saying that the police failed to take action such as that described, is that it requires the police force (or any employer) to know that action is required.  The court referred to comments made by Keane JA of the Queensland Court of Appeal in Hegarty v Queensland Ambulance Service [2007] QCA 366.  Keane JA (as he then was, he’s now a judge on the High Court of Australia) said:

[41] … It must be said immediately that, while an employer owes the same duty to exercise reasonable care for the mental health of an employee as it has for the employees’ physical well-being, special difficulties may attend the proof of cases of negligent infliction of psychiatric injury. In such cases, the risk of injury may be less apparent than in cases of physical injury. Whether risk is perceptible at all may in the end depend on the vagaries and ambiguities of human expression and comprehension. … Whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be tendered with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which the employee works…

[43] The area of debate in the present case concerned the extent to which the defendant was duty-bound to ensure that its superior officers should intervene with individual ambulance officers in relation to possible signs of deterioration in their mental health. The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employee’s duty in this respect, must be acknowledged as important considerations. The dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff. Issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating the plaintiff’s problems.

[44] … The plaintiff’s case means that the employee must be concerned, not only with non-performance by the employee as an employee, but also of possible episodes of unhappiness in the employee’s private life. It is not self‑evidently necessary or desirable that employees’ private lives should be subject to an employer’s scrutiny.

[45] Issues didn’t necessarily arise, however, as to their identification of a sufficient basis for the making of a suggestion by the defendant that the plaintiff seeks psychological assessment and treatment. The resolution of this issue is fraught with difficulties peculiar to cases of psychiatric injury. In cases of apprehended psychiatric injury, unlike cases concerned with the amelioration of physical risk in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer’s intervention in the making of a decision to intervene. The employee may not welcome intrusion by a supervisor, which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought, especially if those problems are having no adverse effect upon the employee’s performance of his or her duties at work.

[46] Employees may well regard such an intrusion as an invasion of privacy. Employees may rightly regard such an intrusion as a gross impertinence by a fellow employee, even one who is in a supervisory position. An employee is known to be at risk of psychiatric injury, prospects of promotion may be adversely affected and questions may arise as to the entitlement, or even obligation, of the employer to terminate the employment. Employees who are ambitious, and eager for promotion, and whose signs of dysfunction might equally be signs of frustrated ambition, might rightly be deeply resentful of suggestions which reflect an adverse assessment of the employee’s ability or performance and prospects of promotion. Such employees can be expected to pursue such remedies as may be available for their grievance over the intrusion. Dissatisfaction or resentments of this kind may give rise to industrial relations issues for the employer, as well as defamation issues for other employees. A conclusion that an employee has acted unreasonably in failing to recommend psychological assessment and treatment cannot be made without recognising that the employer’s decision must be made in a social, economic and legal context which includes these considerations.”

Given that symptoms of mental illness may be different too, and personal to the injured person, an employer cannot take steps if the employee does not disclose their issues.  In this case, according to Mahony DCJ (at [378]) the plaintiff’s claims relied:

…on the following failures of the defendant … once the plaintiff had been identified as an officer at risk, namely:

  1. To follow the PMO and that of the police psychologist’s advice in 2006 to ensure the plaintiff undertook a course of psychological counselling, and to appoint a mutually acceptable officer to mentor and monitor the plaintiff’s welfare;
  2. The failure in 2009 to follow up the [Local Area Command’s] … own reporting system, and its standard operating procedure, having identified the plaintiff as an officer who had attended five or more critical incidents.

But the judge found (at [383]):

The plaintiff had lied to the PMO by understating her psychological problems, in order to get her appointments back. This was described as being “result driven”. She also would not have gone to the EAP at this time, unless directed to do so, and there was no power to direct her to do so.

Further (at [386]) ‘It was the plaintiff’s decision to return to full-time duties …’ though she did make ‘a number of applications to transfer away from general duties, none of her applications were successful.’  Finally under the procedures of the Local Area Command she was identified as a person at risk and she was contacted and made aware of assistance available to police through the Employee Assistance Program. The plaintiff advised that she was seeking independent assistance (see [388]) but despite making appointments for assistance, she did not keep them and did not advise any of her superiors that she was ‘not in fact seeking counselling. Nor did she seek any medical treatment for her psychological problems until June 2011’ ([389]).

The judge said (at [394]-[395] and [400]):

It is clear that the plaintiff did not make a candid disclosure as to the extent of her psychological problems to the PMO or to the police psychologist in 2006. I accept the submission made on her behalf that that was “result driven”, namely, she wanted her appointments back and to return to full-time general duties work. Notwithstanding the recommendations made by both the psychologist and the PMO, the defendant was not aware of the full extent of her psychological condition at that time.

I also accept on the balance of probabilities, that from the plaintiff’s perspective, and that of other low ranked officers in the Police Force, there was a stigma attached to disclosing mental health problems. Such disclosure could affect both prospects of promotion and relationships with other officers with whom they had to work. However, the plaintiff had disclosed psychological problems in her workers compensation application in 2006, her claim for closed period workers compensation had ultimately been accepted and she had subsequently been certified as fit to return to full duties by the PMO. At no time thereafter did she report psychological problems arising from her work as a police officer…

The plaintiff was aware at all times of the support services available, including the EAP, the peer support and Police Chaplain, but at no time sought out those services. Finally, when identified as an officer at risk in 2009 … the plaintiff responded that she was seeking counselling outside work. Once she transferred to the Exhibits Office in 2010, notwithstanding that she suffered an exacerbation of her symptoms on occasions, she was no longer required to attend traumatic incidents.

With regard to negligence and breach of duty of care, His Honour said (at [401]-[402]):

Having regard to that history, I find that it was a reasonable response throughout that period for the defendant to do nothing in relation to the alleged breach identified by the plaintiff, i.e. the failure to implement the recommendations made by the PMO and the police psychologist in 2006. … The defendant had no way of knowing in 2009 and 2010 that the plaintiff continued to suffer a psychological reaction to her exposure to traumatic incidents. The report of Dr Gertler in 2007 advised that her symptoms were diminishing, and when identified as being at risk in May 2009, the plaintiff responded by advising that she was receiving counselling outside of work. The defendant’s system for identifying police officers at risk at that time was a reasonable response, and in the circumstances here, it could have done nothing more by way of response to that risk. Any “meeting” with the plaintiff would have provoked no further disclosure of her problems at work.

Further, the evidence established that the plaintiff was suffering personal problems outside of her workplace… For the supervising officers … to intervene in respect of those matters would give rise to the difficulties highlighted by Keane JA in Hegarty as set out above. The plaintiff has therefore failed to establish that the defendant has breached its duty of care to her, and there will be a verdict for the defendant…

Discussion

I have been mindful of the need to report this case. The list of matters that the plaintiff attended are traumatic to read, let alone to attend. Whilst the report of the decision is public, reporting it here makes it even more public and brings it to the attention of people who may know the plaintiff.  I have not mentioned her name, but it’s not hard to find. It is however important for readers of this blog to be informed of relevant legal principles, and this case is relevant and identifies lessons other can learn from, or at least should be aware of.

Policing and emergency service work is work that most of the community could not and would not want to undertake.  As Gummow and Hayne JJ said in New South Wales v Fahy [2007] HCA 20 at [27]:

Police officers are required to undertake tasks of a kind that few, if any, commercial employers could ask of their employees. Police officers must confront death, injury and destruction. It is they who must waken the sleeping household to tell them of the sudden death or serious injury of another. Ms Fahy herself spoke of incidents she had attended in three years of police service: a fatal plane crash, a fatal industrial accident, numerous fatal car accidents, overdoses and hangings. And as well as confronting the consequences of folly and accident, police officers must confront the wrongdoer bent upon harm to both the police and members of the public. It is tasks of these kinds that are encapsulated (s 6(2)(a), 3(b)) by the anodyne description of a function of the Police Service as being “the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way’. And it is tasks of these kinds that constitute the duties of a police officer and may be the subject of lawful orders to a police officer. To neglect or refuse either to obey those orders or to carry out those duties was a criminal offence. …But the [safe system of work] that was devised had to be one which did not detract from the effectuation of the statutory purposes and functions of the Police Service. Examination of the facts and arguments in this case will reveal that too little attention has hitherto been given to these considerations.

The work carries the risk of psychological injury and that risk cannot be reduced to zero. The work place of a police officer (or ambulance officer/paramedic or fire fighter) cannot be made safe.  But all an agency such as NSW Police or Queensland Ambulance can do is put in place reasonable measures to respond to officers in need.

That response requires those officers to disclose their symptoms or to at least answer honestly when asked.  Supervisors cannot compel people to take advantage of the support services offered and cannot intrude into people’s personal lives to investigate their state of mental wellbeing.   As was said in Hegarty:

Employees may well regard such an intrusion as an invasion of privacy. Employees may rightly regard such an intrusion as a gross impertinence by a fellow employee… Employees … might rightly be deeply resentful of suggestions which reflect an adverse assessment of the employee’s ability or performance and prospects of promotion… A conclusion that an employee [sic; I think this should say ‘employer’] has acted unreasonably in failing to recommend psychological assessment and treatment cannot be made without recognising that the employer’s decision must be made in a social, economic and legal context which includes these considerations.

On behalf of the community I think the officer the subject of this case, and Mr Hegarty for their service and recognise the terrible price they have paid for that service.  But that price does not mean that their employer was negligent.

Discussion

Identifying that a person is at risk or is suffering psychiatric injury requires consideration of matters of utmost privacy.  If the employee does not take advantage of assistance that is on offer, or fails to disclose or worse, lies about their situation, there is little an employer can do.  We can recognise that there are cultural barriers to such disclosure and that is something the employer should seek to negate (as they did here, see [178]).  Given that it is not reasonable or possible to require an employer to ‘ensure’ that a person seeks assistance or takes advantage of that assistance.

 

 

 

Categories: Researchers

Duty to provide first aid when working in someone’s home

This interesting question relates to a duty to provide first aid or at least to contact the emergency services.  A first aid instructor was asked:

… in a first aid course a question relating to legal responsibility to render first aid. As per the ARC guidelines and previous posts of yours, I teach that you have a responsibility ‘in the workplace (WHS laws) and anyone under the age of 18 in your care’. An electrician then asked where he stood doing work in a private residence. It is his workplace, but he is also in a private residence. I then considered if I was teaching a first aid course at a client’s workplace – am I the visitor or is it temporarily my workplace?

My understanding is that rendering assistance can simply be phoning for help. This is the reply I gave.

It’s true, and said often enough, that there is no general duty to rescue (Stuart v Kirkland-Veenstra [2009] HCA 15; the Northern Territory is the exception to that rule, see Criminal Code (NT) s 155 and NT police officer gaoled for failing to render assistance (October 31, 2016)).  More accurately thought the rule is that there is no duty to rescue a stranger.  A person for whom we have a responsibility (assumed or imposed) is not a stranger.

Under Work Health and Safety laws, a workplace must have first aid and emergency arrangements in place (see, for example, Work Health and Safety Regulation 2017 (NSW) rr 42 and 43).  An electrician’s work place is wherever he or she is required to work so the employer (or the self-employed worker) should have plans in place for first aid to be delivered to the worker if required – in that case it’s probably not much more than a first aid kit in the car and requiring or supplying a mobile phone.

With respect to others at the workplace, in this case the homeowner, the electrician (and his or her employer if there is on) has an obligation (Work Health and Safety Act 2011 (NSW) s 19) to

… ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

The critical issue here is that the other person, is not put at risk from the electrician’s work, not that the house is risk free.

So the first issue we need to consider in order to answer the question asked, is why does the homeowner need assistance? If they’ve just been electrocuted because they touched an unsafe appliance and the electrician either made it unsafe, knew it was unsafe but hadn’t taken steps to warn the resident or isolate it, or even if they had been called into repair it and hadn’t arranged matters so the resident was aware that he or she shouldn’t be there or at least shouldn’t touch anything, then the person has been put at risk from the electrician’s conduct.  It doesn’t take much imagination that an electrician in those circumstances can’t just keep going with the work and when finished leave the home, making sure to lock the door, and leaving the customer dead on the floor.  In those circumstances there has to be a duty to render assistance even if that assistance is to do no more than call triple zero.

If the homeowner has just collapsed for reasons unrelated to the task that brought the tradesmen there, that is a different issue and I can’t see the work health and safety laws are relevant. But that doesn’t mean there is no duty. These people aren’t strangers, the tradie has been invited into the customer’s home and they have some relationship.

I’ll segue here to a case that may not seem relevant. In R v Taktak (1988) 14 NSWLR 226 the accused was convicted of negligent manslaughter. Taktak was ‘described in evidence as being a drug addict and the deceased, who was a prostitute and was aged fifteen, was a user of heroin.’  The gist of the Crown’s case was that Taktak arranged for the deceased and another prostitute to attend a party.  At some point he was rung and asked to collect the deceased.  He went to the address and found her ‘sitting on the floor, with her back against the wall… she couldn’t speak she was only moaning.’  Taktak then took her to an apartment.  The following evidence was given during the trial:

Q24. What happened then? A. I threw a jacket over her and a blanket, she smelt a lot, of vomit.

Q25. When you put her on the bed how was she lying? A. She was lying on her back. I turned her on her side and she started to be sick on the towel.

Q26. What did you do then? A. I spent a few hours trying to wake her up. But nothing happened she wouldn’t wake up.

Q27. How did you try to wake her up? A. I slapped her face a couple of times, washed her face with cold water, pumped her chest, gave her mouth to mouth but she wouldn’t wake up.

Q28. What did you think was wrong with her? A. Too much tablets, barbiturates.

Q29. Did you seek any medical attention for her after she wouldn’t wake up? A. Not till after Zouhier came to the shop, after ten o’clock.

Q30. Did she take any drugs or anything else at any time while you were with her? A. No, she was unconscious…

Q33. Can you tell me why you didn’t seek any medical attention for her? A. Because I thought that when she got over the dose she had she would be alright.

Q34. What time did the owner of the shop Mr Rabih contact you this morning? A. About half past nine, he rang the shop, I spoke to him but I didn’t tell him about the girl.

Q35. What happened then? A. Rabih came to the shop just after ten and when he saw the girl he tried to wake her up but he couldn’t so he went straight to the doctors.

Q36. What happened next? A. Rabih came back to the shop, but when the doctor didn’t come soon I went back to the doctor, twice, and the second time he came back with me.

Q37. What happened when the doctor arrived? A. The doctor checked the girl and said she has gone and he gave me the number of the ambulance and I rang them and told them to come straight away.

In his statement to the jury, Taktak:

… said that he never thought that the girl’s life was in danger at any time;  that he had no medical training; that he was a heroin addict… [H]e took her inside, put her on the bed, covered her, “had my hit of heroin”, and shortly thereafter fell asleep. He claimed that when he got up he felt her pulse, which was absent, and there was no noise to be heard when he placed his ear upon her chest. He turned her on her back and she vomited, and he tried to give her mouth to mouth resuscitation. He himself became sick and confused. He said: She must have been dead when I gave her mouth to mouth, or she must have died in the taxi, I wouldn’t have a clue, and just before ten o’clock Rabih came to the shop and thereafter they decided to call the doctor. …

The critical issue for our purposes was that to be guilty of manslaughter by negligence Taktak had to be under a duty to do something, and his failure had to be so far below the standard expected of a reasonable person as to warrant criminal punishment.  Did Taktak have a duty to the late Miss Kirby?  To answer that the court had to consider ‘the circumstances in which a person is under a duty which obliges him to care for another’.

Yeldham J quoted Stephen’s History of the Criminal Law of England (1883), vol III at 10-11, which said:

“… A number of people who stand round a shallow pond in which a child is drowning, and let it drown without taking the trouble to ascertain the depth of the pond, are no doubt, shameful cowards, but they can hardly be said to have killed the child.

…By the law of this country killing by omission is in no case criminal, unless the thing omitted is one which it is a legal duty to do. Hence, in order to ascertain what kinds of killing by omission are criminal, it is necessary, in the first place, to ascertain the duties which tend to the preservation of life. They are as follows: — A duty in certain cases to provide the necessaries of life; a duty to do dangerous acts in a careful manner, and to employ reasonable knowledge, skill, care, and caution therein; a duty to take proper precautions in dealing with dangerous things; and a duty to do any act undertaken to be done, by contract or otherwise, the omission of which would be dangerous to life. Illustrations of these duties are the duty of parents or guardians, and in some cases the duty of masters, to provide food, warmth, clothing, etc, for children; the duty of a surgeon to employ reasonable skill and care in performing an operation; the duty of the driver of a carriage to drive carefully; the duty of a person employed in a mine to keep the doors regulating the ventilation open or shut at proper times. To cause death by the omission of any such duty is homicide…

In Archbold, Criminal Pleading Evidence and Practice, 42nd ed (1985), under the heading Gross negligence as recklessness, it is said (par 20-59 at 1637):

“If a grown-up person chooses to undertake the charge of a human creature helpless either from infancy, simplicity, lunacy or other infirmity, he is bound to execute that charge without gross neglect; and if he lets the person whose charge he has undertaken die by gross neglect, he is guilty of manslaughter. The neglect has been described as being such as to satisfy a jury that the defendant was reckless whether such person died or not … If a person has the custody of another who is  helpless and leaves that other with insufficient food or medical attendance, and so causes his death, he is criminally responsible ….”

In Gillies, Criminal Law (1985) at 32 it is said that at common law a person not in general incur criminal liability for a failure to intervene and prevent, or attempt to prevent, the occurrence of harm. In this context the person who sees a building on fire and fails to call the fire brigade, or a person who sees a strange child drowning in a shallow pond and fails to rescue the child, does not incur criminal liability. It is stated as a general proposition that at common law there is no liability for inactivity, and a number of cases are cited in a footnote in support of this general proposition. Exceptions to the rule are then dealt with, the first concerning situations where a person is under a common law or statutory duty to act, and the second concerning offences which are, expressly, ones of omission. In the same work (at 510- 511) the author says:

 … The spectrum of legally recognised duties grounding liability for an omission is an open-ended one, given that such duties can arise from statute as well as the common law. Standard common law duties grounding liability for manslaughter by omission include that which is vested in the parent of a young and dependent child, or one in loco parentis, and that which is vested in the person who voluntarily assumes responsibility for the care of an adult who is physically or mentally incapable of caring for himself or herself….

See also Howard on Criminal Law, 4th ed (1982) at 105-106; and Russell on Crime, 11th ed (1958) vol 1 at 454 ff. In Russell, after dealing with the duty of a parent to maintain children and to provide such medical aid as may be necessary, the author, under the heading Duty of Persons who have Undertaken Responsibility, deals with the responsibility of a master for apprentices and servants, responsibilities arising from employment, and “Responsibility for the helpless or infirm”. Under the latter heading it is said:

“A person is criminally responsible if, having undertaken to provide necessaries for another who is so aged and infirm that he is incapable of doing so for himself, he neglects such undertaking, with the result that death ensues; or if having confined another he neglects to supply him with necessaries, whereby the other dies.”

What distinguishes Taktak and all the cases cited above, from the question asked, is that the electrician in the home hasn’t voluntarily taken on the care of a person – he or she hasn’t ‘undertaken to provide necessaries for another’, they’ve undertaken to do electrical work and the person has collapsed.   But like Taktak’s case the person is in a place where if the electrician doesn’t get them help, no-one is going to.  If Taktak had left Miss Kirby on the street others may have been able to assist her but by removing her he ensured that without his assistance there would be no assistance.  Again the electrician the subject of our discussion hasn’t moved the person to a place where others can’t rescue him or her, but the electrician does know that if they don’t call for help, no-one is going to because no-one else knows that help is required.

Yeldham J went onto consider

… R v Shepherd (1862) Le & Ca 147169 ER 1340. There the prisoner had failed to procure the aid of a midwife for her daughter, who was eighteen years of age, during childbirth. A difficulty occurred and death ensued. The prisoner’s conviction for manslaughter was quashed on the ground that there was no legal duty binding her to procure the aid of a midwife. Erle CJ said (at 155-156; 1343):

“… The cases where the person, whose death is caused, has been brought into circumstances where he cannot help himself, as by imprisonment, by the act of the party charged are clearly distinguishable. There the persons imprisoned are helpless, and their custodians, by the fact of their being so, have charged themselves with the support of their prisoners. The case of parent and child of tender years is also distinguishable, as are the other cases where such a duty is imposed by law or contract, as in the case of master and apprentice. Here the girl was beyond the age of childhood, and was entirely emancipated. Then, being in the prisoner’s house, she is brought to bed, and the mother omits to procure her a midwife. I cannot find any authority for saying that that was such a breach of duty as renders her, in the event which ensued, liable to the consequences of manslaughter.”

This is akin to the story we’re discussing. The electrician hasn’t imprisoned nor have a duty imposed by law or contract (unless the injury was casued by the electrician’s work, discussed above).

In R v Joukhadar (Court of Criminal Appeal, 13 June 1975, unreported, cited in Taktak), McAlvay CJ said:

“The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter … This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death … Although the literature upon the subject is quite meager and the cases few, nevertheless the authorities are in harmony as to the relationship which must exist between the parties to create the duty, the omission of which establishes legal responsibility. One authority has briefly and correctly stated the rule, which the prosecution claims should be applied to the case at bar, as follows: ‘If a person who sustains to another the legal relation of protector, as husband to wife, parent to child, master to seaman etc, knowing such person to be in peril, wilfully and negligently fails to make such reasonable and proper efforts to rescue him as he might have done, without jeopardizing his own life, or the lives of others, he is guilty of manslaughter at least, if by reason of his omission of duty the respondent person dies. So one who from domestic relationship, public duty, voluntary choice or otherwise has the custody and care of a human being, helpless either from imprisonment, infancy, sickness, age, imbecility, or other incapacity of mind or body is bound to execute the charge with proper diligence, and will be held guilty of manslaughter if by culpable negligence he lets the helpless creature die’.”

Of course the electrician is not in ‘the legal relation of protector’ other than he or she, alone, knows of the person’s need.

To return to Taktak’s case, Yeldham J concluded:

The question whether, by taking her to Rabih’s premises and dealing with her as he did, rather than leaving her to lie in Liverpool Street, he thereby assumed a duty to care for her, is one which must be decided by the application of principles already summarised… Although, if not taken by the appellant to Rabih’s house, the deceased may well have remained where she lay in the foyer of a building in Liverpool Street and later died. Equally she may have been seen by another or others who were prepared to and did obtain speedy medical assistance for her. This chance was denied to her by the appellant when he took her away. This is a factor which, in some of the cases (eg, Jones v United States of America) is regarded as significant.

In the result I have come to the conclusion, although not without hesitation, that in the circumstances …  there was evidence that the appellant did assume a duty to care for the deceased girl, who at the time was helpless, and by so doing removed her from a situation in which others might have rendered or obtained aid for her.

Carruther’s J didn’t share Yeldham J’s concerns.  He said:

To my mind the evidence led by the Crown was capable of satisfying the jury beyond reasonable doubt that the appellant owed a duty of care in law to Miss Kirby. That duty flowed from his taking her unconscious body into his exclusive custody and control and thereby removing her from the potentiality of appropriate aid from others…The legal principles are, I think, conveniently stated in 40 Am Jur 2d, par 90 at 383:

“Generally speaking, the affirmative legal duty which is the vital element of a homicide charge based upon failure to supply medical or surgical attention may exist, first, where a statute imposes a duty to care for another; second, where one stands in a certain status or relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and has so secluded the helpless person as to prevent others from rendering aid.”

To return to the problem at hand, the electrician is not a mere stranger.  There is a relationship even if it’s tradesmen/client and that does not impose any duty with respect to medical care it does mean that there is some pre-existing relationship, they are not just strangers.

Loveday J said ‘The conduct of the appellant on the evening before and during the period immediately preceding Miss Kirby’s death was so morally reprehensible that he evokes no sympathy. However, in my view the evidence fell short of establishing negligence of the degree required to justify a conviction for manslaughter. I agree with the orders proposed by Yeldham J and with his reasons therefor.’

At the end of the case, Taktak was acquitted.  Although the three judges agreed that he owed a legal duty to Miss Kirby, his conduct, incompetent as it would sound to any reader of this blog, was not sufficiently gross as to warrant conviction for negligent manslaughter.  We need not consider that issue of breach further.

Discussion

As noted the electrician is not like Taktak in that he or she has not taken the person in need of care and secluded them. Nor are they like the cases involving parents and partners who have a duty to care for others.  But they are not a stranger.  One could apply the Tabloid Press test – how would anyone react to a tradesperson who saw their customer collapse and who simply did nothing?  Who continued their business and then left?

The cases, above, don’t directly address that but I don’t think it would be hard stretch to find that there was a duty of care.  There has to be a duty of care where it is the tradies work that caused the injury – eg where the customer is electrocuted; but one would also argue that presence of the tradie in the person’s home, under a contractual arrangement, also gave rise to a duty.  IF we think of it the other way round, if a homeowner invites a tradesperson into their house and the tradie is injured or falls ill, the homeowner as the occupier of the property, and given the relationship would certainly have a duty to the tradesperson to do something.  They couldn’t just let him or her die on the floor.  If that is the case (and I have no doubt it would be) then why would the duty not be reciprocal?

Conclusion

From that discussion I would conclude that in the example given, ‘An electrician … doing work in a private residence’ would owe a duty to provide some assistance to the customer if they collapsed or were injured.  The duty would certainly arise if the cause of the injury was the very work that the tradesperson was doing but I would think it could be extended to a general duty.  The duty may indeed be nothing more than a duty to ring triple zero or a family member to assist, but he or she could not simply ignore their customer’s needs.  Whether they would or could be civilly or criminally liable would depend on all the circumstances and the eventual outcome, but I think there would be a duty to do something.

The other question

The other question was if I’m ‘teaching a first aid course at a client’s workplace – am I the visitor or is it temporarily my workplace?’ The answer is yes – so as it is your workplace you have to ensure that your work and work practices don’t expose others to unreasonable risks to their health and safety; and the client has to ensure that they don’t expose you to unreasonable risks to health and safety.

 

 

Categories: Researchers

Using two-way radios and mobile phones whilst driving in Queensland

Today’s question relates to the use of radios and telephones whilst driving.  A correspondent, from Queensland, asks

A debate that often comes up is about using CB radios or Mobile phones while driving.

I believe but without any reference to written acts that if the user has an accident then they would be charged with “Failure to drive with due care and attention!”

Is that true?

Is that what the offense is called?

Please use Qld as a reference if your wish.

It’s not true that ‘if the user has an accident they will be charged with …’  What a person is charged with, after an accident or even whilst driving, depends on what the police think they can prove.  A person who has an accident whilst using their phone may be charged with anything ranging from negligent driving to manslaughter depending on the circumstances and the consequences.

It is however an offence to use a mobile phone whilst driving.  The Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) is the law that adopts the National Road Rules in Queensland.  It says (at r 300)

The driver of a vehicle (except an emergency vehicle or police vehicle) must not use a mobile phone that the driver is holding in the driver’s hand while the vehicle is moving, or is stationary but not parked.

The maximum penalty is a fine of 20 penalty units.  A Queensland penalty unit is $126.15 (Penalties And Sentences Act 1992 (Qld) s 5A and Penalties And Sentences Regulation 2015 (Qld) r 3) so the maximum fine is 20 x $126.15 which equals $2523.00.  If dealt with by way of infringement notice (ie on the spot ticket) the penalty is 3 penalty units or $378.45 (State Penalties Enforcement Regulation 2014 (Qld) Sch 1). The offence also attracts 3 demerit points or, if it is a second offence within one year, 6 demerit points (Transport Operations (Road Use Management–Driver Licensing) Regulation 2010 (Qld) rr 75 and 78A).

It should be noted that the rule does not apply to the driver of an emergency or police vehicle. Social media loves photos showing a police officer on the ‘phone usually with commentary about ‘one law for them and another for us’.  As r 300 shows, there is indeed one law for ‘them’ and another for people who are not driving an emergency or police vehicle.

It should also be noted that r 300(2) says ‘mobile phone does not include a CB radio or any other two-way radio’ so it is not an offence to use your two-way radio whilst driving.

It is also interesting to note that r 300 (2) says:

use, in relation to a mobile phone, includes any of the following—

(a) holding the phone to, or near, the ear, whether or not engaged in a phone call;

(b) writing, sending or reading a text message on the phone;

(c) turning the phone on or off;

(d) operating any other function of the phone.

A mobile phone does not include a radio, but what it does include is not defined.  I have an ipod in my car which I can use as a GPS, to play music, and to send messages.  I can’t use it to make a phone call.  It is a ‘mobile phone’?  Literally I don’t think it is but I think a court, having to interpret the Act and considering the mischief that it is meant to avoid would say that it is.  One reason is that if the Act meant literally a phone, then excluding CB radios would not be necessary.  If ‘mobile phone’ means ‘a telephone with access to a cellular radio system so it can be used over a wide area, without a physical connection to a network’ then a CB or two-way radio is not a mobile phone so specifically excluding them from the definition is unnecessary.  The fact that the Parliament did expressly exclude them, means that they intended or understood ‘mobile phone’ could be more than what is technically a mobile phone.  It’s an argument I’ll try to avoid having.

As for driving without due care and attention, that is an offence under the Transport Operations (Road Use Management) Act 1995 (Qld) s 83.  That section says:

CARELESS DRIVING OF MOTOR VEHICLES

Any person who drives a motor vehicle on a road or elsewhere without due care and attention or without reasonable consideration for other persons using the road or place is guilty of an offence.

The maximum penalty is 40 penalty units ($5046.00) or 6 months imprisonment.

It should be noted that because that offence is in the Transport Operations (Road Use Management) Act 1995 (Qld) the exemptions for the drivers of emergency and police vehicles set out in the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) rr 300 (discussed above), 305 (Exemption for drivers of police vehicles) and 306 (Exemptions for drivers of emergency vehicles) won’t be relevant.  So a police or emergency services officer could be charged with careless driving for using a phone, even though he or she could not be convicted of the specific offence of using a mobile phone whilst driving.

Conclusion

One can’t ever make a definitive statement such as ‘if the user has an accident then they would be charged with “Failure to drive with due care and attention!”.’  What a person may be charged with, after an accident, would depend on all the circumstances.  Both careless driving and using a mobile phones are offences contrary to Queensland law and there are equivalent offences in every other state and territory.

Categories: Researchers

First aid on an aircraft

I’m not sure, but I suspect this question may have been prompted by this news story –

  • Graeme Powell, ‘Qantas passenger left with second-degree burns after flight to Gold Coast’, ABC Radio Perth (0nline), 24 April 2018; and
  • James Carmody, ‘Qantas apologises after passenger suffers second-degree burns on flight to Gold Coast’ ABC News (Online), 1 May 2018.

That story reports on an incident where a passenger says:

… a flight attendant was handing her a cup of tea when the woman spilt boiling water on her legs…

“I asked for a cup of tea and she passed it over to me and it spilt onto my lap,” she said.

“I was in shock and a lot of pain.

“I was standing up to try to dry it, but she [the flight attendant] had already moved on to the next row of people and I got no medical assistance, no help throughout the entire flight.”

Blistering set in before landing

[The passenger] said she later mentioned she had burns to the flight attendant, and was unimpressed with the response.

“She went ‘oh’, and that was all she said,” Karina said.

“I kept trying to tell the flight attendants what had happened, but again they didn’t do anything [to help me] on the flight.

“By the time I got off the plane everything had already started to blister.”

… she went straight to hospital and medical staff told her that if she had received treatment for the burn immediately it would not have been as severe.

As I say I don’t know if today’s question was inspired by that story but even if it wasn’t it’s good context for the question which arose when my correspondent was:

Discussing duty of care with someone in regard to the delivery of first aid on a domestic air carrier.   Do staff have a DoC to deliver first aid if a passenger is injured or falls ill whilst in the plane?

The answer is clearly ‘yes’.   A passenger on a plane is not a stranger to the airline but a customer.  Further they are vulnerable in that they are subject to the direction and control of the crew.  If there’s an injury they can’t access the first aid equipment, they can’t call for assistance etc. They depend on the crew to manage the incident in the air.  The cabin crew may spend most of their time serving tea and coffee but their real job is to provide for the safety of the passengers.

There are also prescribed obligations upon the airlines with respect to first aid (see Accessing medical supplies on an aircraft (August 9, 2017)).  The aircraft is also a work place and work health and safety laws require that a workplace have appropriate first aid plans in place and that they are activated when required – see Work Health and Safety Regulations 2011 (Cth) r 42 ‘Duty to provide first aid’.

Conclusion

It is axiomatic that aircrew of a domestic airline have a duty to deliver first aid if a passenger is injured or falls ill whilst in the plane.

 

Categories: Researchers

RPL when converting from paramedic diploma to degree – but do you even need a degree?

Today’s question relates to qualifications for paramedics and a more complex issue of university regulation.  Today’s correspondent is:

…  in a similar situation to many other practicing paramedics. We have completed either a private or public ambulance service diploma in paramedical science. The private using a VET [Vocational Education and Training] stream. I joined a bridging program at ECU [Edith Cowan University, Western Australia] to bridge to the degree but have found myself repeating copious amounts of information, and that adds expense and time off work to the bridging process. I have raised this concern with the process at the university to the course director.

The ECU bridging program was chosen ahead of other university courses on its strength at the time having a relationship with SJA WA [St John Ambulance Australia (Western Australia)]. The university lost that relationship, and so quite a few students (with diploma’s and already practicing) only had an option to change university to work again on road as a Curtain University [also in Western Australia] designated student AO [Ambulance Officer].

That required a further 6 months minimum of full time study and 12 or more part time study for this group. Neither university accepts each other’s courses as equivalent. The accreditation for a 2012/13 Diploma apparently holds less RPL [Recognition of Prior Learning] than a current Diploma (that is my VET Diploma dated 2013 is not recognised by the university as equivalent to a VET Diploma in 2018).  When I applied for 2 additional units of advanced standing, that request was denied. I am in one of those units now, and quite frankly, this is a waste of time and money. I covered this over 5 years ago in as much detail. A delay in processing my application meant I also missed entry into the first unit that looks not to be a copious repeat of info. Other universities UTAS [University of Tasmania], UVIC [I assume this means Victoria University, Australia; not University of Victoria, Canada], CQU [Central Queensland University] all have shorter better aligned bridging programs. Universities have a rule of only accepting 150 credit points for RPL. So I have progressed beyond that and so changing university would be another setback, even for a short course.

For a mature age student, not living at home off the subsidy of parents, it appeared worth the trade-off. Having lost the SJA relationship contract, it has damaged our position. Come time of registration this year, I fear we may not even be able to work. We will go from practicing AO’s with 10 years’ experience, working at paramedic level for 5+ years, to University students in a course that discriminates against out group.

An AO by national standards means a Cert IV in ambulance. Which I had in 2007. There is no grandfathering clause here.

I have raised this concern. I have cited estoppel as a potential worthy area of law, and I am seeking some understanding of my legal position. The course has been changed to our detriment, with no grandfathering clause. The course is not the promise that it was, and raising concern of repeating copious amounts of information and training at significant cost, has effectively caused damage to my professional position as a paramedic. Can you help me understand the situation legally? Has the University breached any laws?

This is an unfortunate position(though perhaps not as unfortunate as those students who enrolled in James Cook University’s Bachelor of Health Science (Physician Assistant) – see Michael Atkin ‘Why have a course where there’s no outcome?’ James Cook University under fire for healthcare degree, ABC News (Online) 8 Feb 2018)).

Let me deal with my correspondent’s concerns in turn.  First the claim that the course ‘discriminates’ against the group.  I’m not sure what that means or what type of discrimination is meant.  To say something discriminates against a group implies that it treats people who are relevantly alike, differently.  I can’t see that ECU is ‘discriminating’ against one group of students ie treating one group differently to another as I don’t know what the ‘other’ group may be.  That different universities have different rules isn’t ‘discrimination’ it’s the market and the design of the ‘product’.   In any event discrimination is unlawful only if it’s on prohibited grounds (gender, sexual preference, age, marital status, religious beliefs etc).   My correspondent’s used the term ‘discriminate’ but I don’t think that’s relevant.

University rules

The university sector is largely unregulated.  Universities are privileged to be self-accrediting that is they determine what goes into their courses.  Some courses such as law and medicine do have to be endorsed by professional bodies in order to allow the graduates to seek professional registration but others do not.

The Council of Ambulance Authorities has accredited paramedic degrees to say that the degrees will be accepted for employment by the member agencies (see http://www.caa.net.au/paramedic-education).  This is not the same as accrediting course for registration as that will be a matter for the Paramedicine Board – (Health Practitioner Regulation National Law s 48).

There is some regulation of universities.  The Tertiary Education Quality and Standards Agency Act 2011 (Cth) says that a higher education provider must be registered and courses of study must be accredited, but Australian universities ‘are authorised to self-accredit their courses of study’ (s 4).  The Tertiary Education Quality and Standards Agency [TEQSA] does publish standards including a standard on ‘Student Participation and Attainment’. That standard says (at [1.2]):

TEQSA supports granting of credit for prior learning, and will need to be satisfied that this is guided by institutionally approved policies and evidence-based procedures that are applied transparently and consistently, with explicit (written) outcomes for credit decisions provided to students… We expect providers to take a positive attitude to the award of credit wherever practicable, but we must also be satisfied that the granting of credit will not disadvantage students (e.g. by admitting students who are insufficiently prepared to undertake the level of higher education required) or diminish the integrity of the qualification awarded. This could occur, for example, where the award of credit would result in a disproportionate amount of the program representing levels of education/experience below that of the qualification offered, such as a Masters degree program comprising, in effect, predominantly undergraduate content.

There is also a standard on ‘Representation, information and information management’.  This standard is intended to asses:

  • whether the providers’ representations (whether directly or through other parties) about themselves and the course(s) of study they offer are accurate, ethical and not misleading in their claims (7.1)
  • whether there is sufficient publicly available information to assist students in making informed choices about selecting a course of study, to enable effective and informed participation in a chosen course of study and to resolve grievances if necessary, including the particular needs of international students studying in Australia (7.2)

The Australian Qualifications Framework [AQF] is meant to set out minimum standards for qualifications ranging from Certificate I to Doctoral degrees.   According to the AQF:

The purpose of the Certificate IV qualification type is to qualify individuals who apply a broad range of specialised knowledge and skills in varied contexts to undertake skilled work and as a pathway for further learning…

Certificate IV qualifications must be designed and accredited to enable graduates to demonstrate the learning outcomes expressed as knowledge, skills and the application of knowledge and skills specified in the level 4 criteria and the Certificate IV descriptor. Certificate IV.

A Bachelor’s degree is a level 7 qualification.

The purpose of the Bachelor Degree qualification type is to qualify individuals who apply a broad and coherent body of knowledge in a range of contexts to undertake professional work and as a pathway for further learning…

Bachelor Degree qualifications must be designed and accredited to enable graduates to demonstrate the learning outcomes expressed as knowledge, skills and the application of knowledge and skills specified in the level 7 criteria and the Bachelor Degree descriptor.

There are different expectations with respect to knowledge, skills and ability to act autonomously with level 4 and level 7 qualifications (see Australian Qualifications Framework Council, Australian Qualifications Framework (2nd ed, January 2013), pp. 12-13).

What follows, and consistent with the TEQSA standard on Student Participation and Attainment, universities must carefully consider whether learning for a level 4 qualification equates to the standard required for a level 7 qualification and must not give credit where to do so would ‘diminish the integrity of the qualification awarded … for example, where the award of credit would result in a disproportionate amount of the program representing levels of education/experience below that of the qualification offered’ in this case by offering a Bachelor’s degree that was made up, in effect, of predominantly Cert IV content.  Making those assessments is a matter for each university.

It is also true that universities impose limits on the amount of credit for prior study that will be granted.  A university does not want a student to complete all but one unit of a degree at another institution and then transfer to complete one unit and get a degree badged from a more prestigious institution so whether that’s transferring from a lower ranked regional university to a ‘Group of 8’ institution (recognising at once that university rankings are pretty meaningless except to universities that rank well and also acknowledging that I work at a ‘Group of 8’ member institution) or from a VET course to a Bachelor’s degree.

It follows that I can’t comment on whether ECU’s approach to RPL for diploma studies is reasonable or not.  What I can say is that ‘explicit (written) outcomes for credit decisions’ must be provided to students.

I also note that a major factor in choosing ECU was their link with St John (WA) that no longer exists.  That does not mean there was inaccurate or misleading material at the time my correspondent enrolled but it does meant that there will need to be some alternative placement program to allow students to complete the requirements of the degree.

Universities are, like any industry, also bound by general legal principles including contract law and can be held to account if they fail to deliver the product that they promise with professional care and skill.

What’s to be done

There is lots that can be done.  Where there is a written decision on RPL that can be appealed.  There will be appeal processes in the university rules to review decisions made by university officers.  It’s a matter of finding those rules and following them.  There will also be provision for external review.  If it were in the ACT I would suggest starting with the Australian Capital Territory Civil and Administrative Tribunal (ACAT).  I don’t know the jurisdictional rules of the State Administrative Tribunal (SAT) in Western Australia but that would be a good starting point.

TEQSA can receive complaints by domestic students (https://www.teqsa.gov.au/complaints-domestic-students) where there is an alleged breach of the Higher Education Standards Framework (which includes the standards quoted above).

For the best way to deal with it my correspondent needs legal advice from a Western Australia lawyer with knowledge of the tertiary education sector.  The starting point should be the ECU Student Guild.

Do you actually need a degree?

That review of tertiary regulation is required to address my correspondent’s concerns, but the more interesting question is why does a person ‘with 10 years’ experience, working at paramedic level for 5+ years’ think they need a degree?

My correspondent says:

An AO by national standards means a Cert IV in ambulance. Which I had in 2007. There is no grandfathering clause here.

But if ‘here’ is Western Australia there is no ambulance or paramedic legislation at all.  The qualifications to practice as a paramedic are determined by the employers, that is they can employ whoever they want.  It may be that my correspondent’s employer has determined a degree is required but that is not a general rule, others may take a different view.

I note that St John (WA) says that for employment as a student ambulance officer one needs to be eligible to enter the Curtin University program.  For graduate employment a candidate needs a ‘Bachelor Degree of Health Science – Major in Paramedicine or equivalent’.  Whether they entertain the notion that a Cert IV and experience is equivalent is a matter for them.  Other jobs listed on seek.com don’t require a degree for a paramedic.

The inference is that my correspondent wants to work for St John (WA) and for that position a degree is required.

Here registration may help.  Once registration is in place one would anticipate that the qualifications for employment will be that the candidate is registered or eligible to be registered as a paramedic.  Paramedic registration does have grandparenting provisions.  For the first three years after the introduction of registration, a person will be eligible for registration if they:

… satisfy the [Paramedicine] Board that you are qualified or competent to be registered by:

holding an adequate qualification or having completed adequate training

or

holding a qualification and have also completed further study, training or supervised practice required by the Board

or

completing five years of acceptable practice in the last 10 years.

The grandparenting clause does not say that after three years only the approved degrees will be required for further registration. It says that these no-degree qualifications will be accepted for general registration for the first three years.  A person who is registered in that time will be able to renew their registration without having to obtain an approved degree qualification: see Paramedicine Board Regulation of paramedics under the National Scheme (13 April 2018), in particular the answers to ‘How will ‘grandparenting’ of existing paramedics work?’ and ‘What happens if I am granted registration under the grandparenting provisions but I let my registration lapse?’  See also:

So there may not be ‘grandparenting’ provisions in WA today, but there will be once paramedic registration is in place.

It’s not for me to say whether my correspondent will satisfy the Board that he or she is eligible for registration but one would expect that with their claimed qualifications and experience that they would be, in which case the degree is irrelevant.

Conclusion

I can’t say whether the university has breached any laws simply on the basis of the information I have been given.  I can say that there are ways to seek review of the University’s decisions and to raise concerns with the University and an agency such as TEQSA.  My correspondent should seek specific advice from a WA lawyer or the ECU Student Guild.

The more interesting question is why a person ‘with 10 years’ experience, working at paramedic level for 5+ years’ think they need a degree.  The grandparenting provisions in the Health Practitioner Regulation National Law are intended to ensure that ‘… a person who is working or has worked as a paramedic’ can be registered ‘even if the person does not hold an ‘approved qualification’ for registration’.  As the Paramedicine Board says:

The intent of having grandparenting arrangements is to ensure that practitioners who are legitimately practising the profession have a way of seeking registration and are not disadvantaged because they are not recent graduates. This is especially important because no state or territory in Australia currently has a registration system in place that could ‘automatically’ transition state and territory registered paramedics into the National Scheme.

My correspondent should carefully consider whether or not he or she will need a degree for registration purpose.

Categories: Researchers

Vicarious liability for volunteers

Michael Eburn: Australian Emergency Law - 23 April, 2018 - 11:00

In my response to my post Statutory protection, or not, for QFES (April 18, 2018) I received this comment/question by email:

As a volunteer i.e. not an employee, the principle of vicarious liability for an employee’s negligent acts or omissions wouldn’t apply, so where does that leave a volunteer who is judged to have been negligent while acting under Chapter 3?

I disagree that the principle of vicarious liability does not apply to volunteers. In my post Vicarious liability for the actions of fire wardens (March 5, 2016) I said:

The justification for vicarious liability is not easy to explain – as the judges of the High Court of Australia noted in Hollis v Vabu (2001) 207 CLR 21 ‘A fully satisfactory rationale for the imposition of vicarious liability in the employment relationship has been slow to appear in the case law’ ([35], Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ). Some justifications are that the point of liability is to ensure that a person who is injured is compensated. The ‘person’ that can best ensure that happens, either because they have the funds or the insurance policy, will be a person running a business not their employee. If a person is running a business and employs someone the business owner reaps the rewards of the person’s labour, they pay the wages granted but the employee is acting in the employer’s interest not their own. As the employer gets the benefit so too they should take the risk. The employer is also responsible for selecting employees, training them, building the relevant culture that may or may not prioritise safety etc. All things that a person who engages with the business has no control over. So the employer is liable but he or she or it can do much to limit that liability by the way they run the business.

Whilst it’s true that Hollis v Vabu was about the employment relationship the discussion of the policy reasons behind vicarious liability for employees are equally applicable to volunteers. I have no doubt that agencies are vicariously liable for their volunteers at least volunteers that are incorporated into their operations as closely as uniformed members of the emergency services. For a detailed discussion of the principles see Michael Eburn, Emergency Law (4th ed, Federation Press, 2013) pp26-31.

One reason why there aren’t cases to resolve that issue is because … volunteers don’t get sued. They don’t get sued because the only remedy in a civil case is money and no-one sues a defendant who doesn’t have money. People usually laugh when I say that in conferences, but it is absolutely true. Imagine you go to a ‘no win no fee’ lawyer. That lawyer doesn’t get paid unless you get paid. That lawyer is not going to invest his or her time and money pursuing someone who isn’t going to be able to pay. If a volunteer is alleged to have been negligent the lawyers are going to sue the agency because any other route is a pointless waste of everyone’s time, effort and money.

Goodhue v Volunteer Marine Rescue Association

The issue has been tested in Queensland in Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QDC 29 (at first instance) and on appeal as Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QCA 234 (see also Volunteer liability put to the test (August 3, 2010)).  In this case it was alleged that the plaintiff’s boat and slipped free of its mooring and was posing a threat to other vessels.  It was re-secured by the Volunteer Marine Rescue Association (VMRA) however it was alleged that the volunteer with the Marine Rescue Association had been negligent in the way he had secured the plaintiff’s boat with the result that the boat ran aground and suffered damage.

Although it was alleged that a volunteer had been negligent, it was the VMRA that was sued.   The volunteer was entitled to rely on the Civil Liability Act 2002 (Qld) s 39. That section says:

A volunteer does not incur any personal civil liability in relation to any act or omission done or made by the volunteer in good faith when doing community work—

(a) organised by a community organisation…

Community organisation means (s 38):

… any of the following that organises the doing of community work by volunteers—

(a) a corporation;

(b) a trustee acting in the capacity of trustee;

(c) a church or other religious group;

(d) a registered political party as defined under the Electoral Act 1992 or the Commonwealth Electoral Act 1918 (Cwlth) ;

(e) a public or other authority as defined under section 34 ;

(f) a parents and citizens association formed under the Education (General Provisions) Act 2006 , chapter 7;

(g) another entity prescribed under a regulation.

It was accepted that the Volunteer Marine Rescue Association was a community organisation. (QFES would also be a community organisation, see s 38(e), above and s 34).

The court accepted that if the Association was liable it was liable because it was vicariously liable for its volunteer. There was no argument that the Association had been negligent in its ‘policies and procedures’, only that a ‘servant or agent’ of the Association had been negligent and therefore the Association was liable ([176]).  The question then, became, if the volunteer was protected by s 39, was the Association also protected or, in other words, if the liability of the Association was vicarious and the volunteer was not liable because of s 39, was the association still liable?

In New South Wales, where a volunteer is protected, so is the agency that uses the volunteers (Civil Liability Act 2002 (NSW) s 3C). There is no equivalent to s 3C in the Queensland Act however Judge McGinness DCJ in Goodhue’s case concluded that the protection offered by s 39 of the Queensland Act extended to the agency. At [172]-[173] Her Honour said:

On its face the section only excludes liability for the defendant’s volunteers. There are two different ways to interpret the section. On one interpretation, it can be read to mean the immunity only applies to the volunteers, that, by implication, it leaves the incorporated associations liable in respect of any negligence of the volunteers. So, effectively, it makes the association liable, rather than the volunteer liable.

The alternative interpretation is that, by excluding the liability of the volunteers, it excludes the vicarious liability of the association…

Her Honour preferred the ‘alternative interpretation’. Because the liability was ‘vicarious’ ie it depended on the volunteers liability being transferred to the agency, where there was no volunteer liability, there was no agency liability.

Her Honour ultimately found, however that there had been no negligence by the volunteer and the claim was dismissed.  It must be stressed the claim was not dismissed because the volunteere wsa protected by s 39, it was dismissed because the volunteer had not been negligent

Goodhue appealed to the Queensland Court of Appeal (Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QCA 234 (McMurdo P, Gotterson JA and Lyons J)).  The appeal court did not deal with the interpretation of s 39.  Gotterson JA (with whom the other judges agreed) said, at [36]:

[The Trial Judge]…  had found that none of the VMR’s authorised agents had acted negligently. She had also found that the VMR did not itself owe any duty of care as pleaded. There is no realistic prospect that any of these liability findings would be overturned on appeal. In these circumstances, neither s 39 nor the other provisions could be engaged.

In other words, in the absence of any negligence there was nothing for s 39 to do, so the Court of Appeal did not have to decide how it would apply if the volunteer had been negligent.

Discussion

There really is no doubt that agencies are vicariously liable for their volunteers. In Queensland and New South Wales a negligent volunteer is protected. Because the liability is vicarious (ie the agency would be required to meet the volunteer’s liability) then the protection of the volunteer also means the agency is not liable (Civil Liability Act 2002 (NSW) s 3C; Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QDC 29).

In the other states and territories, even though the volunteer is protected, the agency remains liable for the negligence of its volunteers –  see Civil Laws (Wrongs) Act 2002 (ACT) s 9; Personal Injuries (Liabilities and Damages) Act (NT) s 7; Volunteers Protection Act 2001 (SA) s 5; Civil Liability Act 2002 (Tas) s 48; Wrongs Act 1958 (Vic) s 37; Country Fire Authority Act 1958 (Vic) s 92; Victoria State Emergency Service Act 2005 (Vic) s 42; Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA) s 7 and Commonwealth Volunteers Protection Act 2003 (Cth) s 7.  The inference from these Acts is regardless of any arguments at common law, the legislature has specifically moved to ensure that an agency is vicariously liable for its volunteers.

It should be noted that a volunteer can lose the protection of these Acts if he or she knowingly acts:

(a) outside the scope of the activities authorised by the community organisation concerned; or

(b) contrary to instructions given by the community organisation.

Civil Liability Act 2002 (Qld) s 42; see also Civil Laws (Wrongs) Act 2002 (ACT) s 8(2); Civil Liability Act 2002 (NSW) s 64; Personal Injuries (Liabilities and Damages) Act (NT) s 7(2); Volunteers Protection Act 2001 (SA) s 4(3); Civil Liability Act 2002 (Tas) s 47(3); Wrongs Act 1958 (Vic) s 38(1); Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA) s 6(3) and Commonwealth Volunteers Protection Act 2003 (Cth) s 6(4).

Those sections do not mean there is no vicarious liability.  If a person acted outside the scope of the activities or contrary to instructions and that, in turn caused damage, the plaintiff would still want to sue the agency.  The failure of the volunteer to restrict their conduct to the scope of activities and to act according to instructions may be the very evidence of negligence needed to establish liability.  As noted with vicarious liability for employees do an authorised act in an unauthorised way (ie acting contrary to instructions) does not deny vicarious liability (New South Wales v Lepore (2003) 212 CLR 511).   Acting ‘outside the scope of the activities authorised by the community organisation concerned’ may suggest the volunteer is on a ‘frolic’ of his or her own but it would depend very much on what the volunteer did, why they did it, to what extent was it a departure from the authorised activities and how clear had the organisation defined what was or was not authorised etc.

In New South Wales and Queensland showing that the volunteer is not protected by the relevant section would remove the volunteers’ protection and would, therefore, also remove the agencies protection.  A plaintiff may want to argue that the volunteer acted contrary to authority or instructions to establish the volunteer’s liability and therefore get access to the agencies funds on the basis of the agencies common law vicarious liability.

That argument would apply with respect to every exemption. If the volunteer was drunk, one would sue the agency both as being vicariously liable for the negligence of its volunteer and for its own negligence in allowing an intoxicated volunteer to remain on duty.  Either way the plaintiff is trying to get to the agency’s funds, or more importantly, the agency’s insurer.  Remember no-one wants to sue a defendant who can’t pay.

Let me return to the question which was:

As a volunteer i.e. not an employee, the principle of vicarious liability for an employee’s negligent acts or omissions wouldn’t apply, so where does that leave a volunteer who is judged to have been negligent while acting under Chapter 3?

An agency is vicariously liable for its volunteers, and, further volunteers are generally protected by the Civil Liability Act 2002 (Qld) and equivalent legislation in each state and territory.  In every jurisdiction, other than Queensland and New South Wales, the legislature has specifically moved to ensure that agencies are vicariously liable for the volunteers.

Conclusion

Volunteers in Australian emergency services really have to stop worrying about being personally sued.  It has not happened and I’m willing to predict it’s not going to happen (unless you’re going to use the authority provided by your uniform to loot a disaster area or sexually assault those you are meant to help).

Categories: Researchers

Industrial manslaughter and QFES driver training

Michael Eburn: Australian Emergency Law - 18 April, 2018 - 16:01

A correspondent has:

… some questions about the recently introduced Industrial manslaughter Laws in Queensland (Work Health and Safety and Other Legislation Amendment Act 2017) and the relationship to Queensland Fire and Emergency Services decision making process regarding driving emergency vehicles.

In particular I would like to ask about the accident in Darwin, Inquest into the death of Kevin Taylor, Lena Yali and Gregory McNamara [2013] NTMC, involving the ARFFS vehicle impacting the vehicle causing death.

  1. If a similar incident occurred in Qld today, would this come under the Industrial manslaughter laws and what might be the result?
  2. Knowing that the QFES does provide training in Emergency response driving (PUAVEH001B) would this affect the decision?
  3. If it was found that the QFES assumes that persons employed ‘can drive a heavy vehicle/Emergency response vehicle’, by virtue of the fact they already have a license but does little to nothing about checking whether they can actually drive, would this change the decision?

Finally, if it was found that delivery of training to achieve PUAVEH001B –  Drive Vehicles Under Operational Conditions was provided by a 3rd party entity, not within the fire brigade, to achieve the outcome in the following manner; Staff are provided a non-accredited course giving them an internal qualification (QFRS Driving Instructor) that allows fire offices to deliver accredited training to both recruit firefighters and auxiliary staff.  The Driver Training is being delivered under a 3rd party agreement by a person who does not hold the qualifications (PUAVEH001B nor is an accredited Driving Instructor) – That 3rd party provider does not hold any qualifications in Training and Assessment. In short, the process involves a 3rd party provider training internal staff, to act as Driving Instructors and sign off on content through that same 3rd party provider using the QFES RTO status to achieve the outcome of the qualification.

4. Would this model, for training of staff in ‘Driving vehicles under operational conditions’ sway the view of any decision made under the same act?

5. Are the QFES instructors actually ‘Driving Instructors’ or just used as a tool to achieve an outcome?

6. Does this ‘Validate someone’s ability to drive and emergency vehicle’ not withstanding any subsequent questioning of the actions of their instructor when doing so?

I can’t get into the details of the way QFES is alleged to conduct the training.  This is not a place for legal advice and my correspondent is putting an interpretation on what is happening which I anticipate QFES would dispute. Further without reference to documents to verify the standing of the ‘3rd party’, the contractual arrangements etc any answer would be merely speculative.  I will therefore limit my answer to the industrial manslaughter issue.

The Darwin incident referred to was a collision involving an Airport Rescue and Fire Fighting (ARFF) appliance.  The matter was subject to a coronial inquest and ARFF was prosecuted for breaches of the Work Health and Safety Act.  The accident and the legal outcomes are discussed in earlier posts; see:

  1. Airservices Australia to be prosecuted over fatal fire appliance accident in Darwin (January 14, 2015); and
  2. Outcome of Airservices Australia prosecution over fatal fire appliance accident (April 24, 2016)

The industrial manslaughter laws were introduced by the Work Health and Safety and Other Legislation Amendment Act 2017 (Qld).  Relevantly the Act inserts a new s 34C into the Work Health and Safety Act 2011 (Qld). The new s 34C says:

A person conducting a business or undertaking commits an offence if—

(a) a worker—

(i) dies in the course of carrying out work for the business or undertaking; or

(ii) is injured in the course of carrying out work for the business or undertaking and later dies; and

(b) the person’s conduct causes the death of the worker; and

(c) the person is negligent about causing the death of the worker by the conduct.

In the context of the Darwin accident the person conducting the business or undertaking (the PCBU) was ARFF.  If we assume a similar accident involving QFES then the PCBU would be QFES.  For s 34C to apply there needs to be a death of a worker.  In the ARFF accident no employee of ARFF was killed. It follows that the answer to the question ‘If a similar incident occurred in Qld today, would this come under the Industrial manslaughter …?’ is no, it would not as there was no ‘worker’ killed.

Assuming that a firefighter was killed then the industrial manslaughter laws may apply if the conduct of the PCBU or a senior officer within the PCBU substantially contributed to the worker’s death (s 34A(2)). That would be a question of fact to be determined in all the circumstances. In a motor vehicle accident the nature of the driver training may be relevant but may be irrelevant depending on the circumstances.  Assume for example that a driver has had no training and the PCBU neither provides nor requires training. That may be a breach of various obligations under the Work Health and Safety Act, but if he driver is killed when a speeding drunk driver collides with the appliance, it would be hard to say that the training (or lack thereof) substantially contributed to the death.

As noted, even without industrial manslaughter laws, ARFF was prosecuted for the way it managed, and trained its staff to respond to, a request for assistance from the Northern Territory Fire and Emergency Services.  It is hard to see what these new laws add where the defendant is a corporate entity as a corporation can’t go to gaol.

The relevance of industrial manslaughter laws is the extension to senior officers (s 34D).  The term ‘senior officer’ does not refer to the ‘officer’ ranks within a uniformed organisation like QFES.  A senior officer of any PCBU is (s 34A(1) definition of ‘senior officer’)

(a) if the person is a corporation—an executive officer of the corporation; or

(b) otherwise—the holder of an executive position (however described) in relation to the person who makes, or takes part in making, decisions affecting all, or a substantial part, of the person’s functions.

Section 34D says:

A senior officer of a person who carries out a business or undertaking commits an offence if—

(a) a worker—

(i) dies in the course of carrying out work for the business or undertaking; or

(ii) is injured in the course of carrying out work for the business or undertaking and later dies; and

(b) the senior officer’s conduct causes the death of the worker; and

(c) the senior officer is negligent about causing the death of the worker by the conduct.

Maximum penalty—20 years imprisonment.

Proving, beyond reasonable doubt, that a senior officer’s conduct substantially contributed to the worker’s death (s 34A(2)) could be difficult.  Where decisions are made at board level then each member of the board has input into the decision and has to exercise ‘due diligence’ to inform themselves of the factors in issue. If, as in this example, the issue is driver training that would require a risk assessment which includes an assessment of the response to the risk. There are a number of options in response to any risk.  Where the board does do the sort of risk assessment anticipated by the Work Health and Safety Act and reaches a decision to, say, engage a 3rd party contractor to provide driver training, it would be hard to prove that the decision was negligent or that any senior officer contributed to the death of a firefighter in a motor vehicle accident; even if a firefighter thought the training was inadequate.

The closer a senior officer is to a decision then the easier it would be to say that his or her action ‘caused’ the death of the worker. So if an executive officer gives a specific direction to a contractor to take a short cut when installing safety equipment and it can be shown that this lead to a failure and a worker dies who would not have died had that action not be taken, then it would be easier to draw the necessary causal link between the senior officers actions and the death.

Let me then return to the questions:

  1. If an incident similar to the fatal ARFF collision occurred in Qld today, would this come under the Industrial manslaughter …? No, it would not as there was no ‘worker’ killed.

The remaining questions assume that the answer to question one is ‘yes’.  Given that it isn’t then the answer to those questions must be ‘no’. But that’s not helpful.  Assume a firefighter is killed then my correspondent is asking if, what’s been described as the QFES diver instructor model would see any liable for industrial manslaughter.  I can’t answer that question even assuming the descriptions given are true. I don’t know:

  • what risk assessment QFES has done;
  • the nature of the contract between QFES and the ‘3rd party’;
  • what’s going on ‘behind the scenes’ that my correspondent also doesn’t know;
  • what the executive have done as part of their due diligence;
  • whether there’s been any fraud or misrepresentation by the 3rd party; and
  • in the absence of any specific accident how much the training, or lack thereof, would be said to contribute to the death. Training doesn’t remove all risks.

These factors would be relevant to any prosecution under the Work Health and Safety Act, whether that is for failing to provide a safe system of work or industrial manslaughter.  It is certainly not as simple as saying ‘if training is as described, then QFES will be liable for industrial manslaughter if a firefighter dies in a collision’.

Categories: Researchers

Statutory protection, or not, for QFES

Michael Eburn: Australian Emergency Law - 18 April, 2018 - 00:38

A member of QFES writes regarding the Fire and Emergency Services Act 1990 (Qld) s 153B(1).  That section says:

No liability attaches to any person for an act done, or omission made, honestly and without negligence under chapter 3.

Chapter 3 outlines the powers and functions of the Queensland Fire and Emergency Service

My correspondent is concerned with ‘what does honestly and without negligence’ actually mean? They say:

For example, if a firefighter manages traffic around an incident to which they have been responded, that is not an authorised action by any of the crew and no training is provided in traffic management by QFES as result. So, if a motorist runs up the back of another vehicle, is injured as a result and sues, the firefighter may have acted honestly, believing it was the appropriate thing to do so as to get people away from the situation e.g. a chemical spill by the roadside, but in acting contrary to their authorisation and training, have they acted negligently? There are many more situations like this that keep coming up and all we keep receiving are broad assurances that the organisation will support you. And in all cases, it is the use of the word “and” that creates the uncertainty as you have a number of possible permutations of outcomes, being an act or omission that:

  • Was honest and not negligent;
  • Was dishonest and negligent;
  • Was honest, but negligent; and
  • Was dishonest, but not negligent.

Clearly, only the first option provides relief from civil liability for the individual firefighters, but what is the legal nature of the other options? In the alternative, does the requirement to act honestly merely support/augment the requirement to not be negligent?

I would appreciate your thoughts on how you think this specific legislation works.

Vaughan v Webb (1902) SR(NSW) 293

To answer that question, we need to go back to 1902.  In that year, in the Supreme Court of New South Wales determined that a fire brigade superintendent, who with the best of intention ordered that a wall be pulled down.   The parties agreed that his actions were negligent but were done in good faith.  Did the fact that he was acting in good faith mean there was no liability for the negligence?  The answer, according to all three judges (Stephen ACJ, Owen and Pring JJ) was ‘no’.  Pring J said (at p 307):

… in my opinion, the words “bona fide” when used to qualify a negligent act are quite meaningless.  A negligent act is one which a man exercising ordinary care and prudence would not commit.  The element of bad faith has manifestly no place in such a definition.  A man may act with the most perfect bona fides and yet be guilty of imprudence or carelessness.

The headnote of the case (that is a little summary to help lawyers decide whether the case is likely to be important to them before they read the whole thing, but which is not part of the case) says:

An action lies for doing that which the Legislature has authorised, if it be done negligently.

The Superintendent of Fire Brigades shortly after a fire pulled down a wall that was dangerous to live and property, and, in so doing, acted negligently, and damaged the plaintiff’s property.  Held, that the plaintiff could maintain an action against him to recover damages for the injury so done.

It was to avoid that consequence that the various sections in Australian fire and emergency services legislation provides that there is no liability for acts done in ‘good faith’, that is the NSW Supreme Court said ‘good faith’ is not a defence, so the legislature in most states set out to change the law to say good faith is a defence.

Queensland’s response

Queensland didn’t use the good faith formula, they used ‘honestly and without negligence’ – see also Ambulance Service Act 1991 (Qld) ss 36V and 41L; Disaster Management Act 2003 (Qld) s 130; Public Safety Business Agency Act 2014 (Qld) s 22 and Public Safety Preservation Act 1986 (Qld) s 8AQ. Those sections deal with quite different issues so won’t be discussed further but they make the point that this particular phrase is common in Queensland legislation.

So what does the section do?  In my view it does nothing at all. 

If the superintendent of the fire brigades had not been negligent there would be no liability anyway.  A person is liable in negligence if they owe a duty of care, they fail to act reasonably to give effect to that duty and as a result that causes another person damage.  If there is no negligence (because there was no duty; or there was no breach; or it did not cause damage) then there is no liability in negligence.  So an action that is not negligent is not protected because protection is not required. An action that is negligent is not protected because the section doesn’t apply if there is negligenceUnder the Queensland formula, Inspector Webb would be no better off as his act, although honest, was not ‘without negligence’.

But there could be liability in other circumstances, eg if the person is not acting honestly, that is for a proper purpose there may be liability for something like malicious damage.  If, for example, a fire brigade captain decides to damage someone’s property, not because it’s necessary but just to make a point (see The cost of parking in front of a hydrant (April 2, 2013)) then negligence is not an issue.   In that case the action (perhaps routing the fire hose through the window of the car) may be an option but if the choice was made to route the hose that way in order to punish the driver, not because it was teh best option, then the action was not done ‘done … honestly … under chapter 3’ (it was done for other purposes of punishment) so s 153B(1) won’t help.  If Superintendent Webb had deliberately set the wall to fall down because he wanted to injure the plaintiff he would not be protected as the Act would not have been done ‘honestly’ even if it may have been reasonable to bring the wall down for the purpose of fighting the fire.

Torts other than negligence

Section 153B may have a role to play if someone is alleging a tort other than negligence, but it’s hard to see what that might be.  But I suppose if someone were to allege battery, or false imprisonment, then provided the Act was done honestly and without negligence for the purpose of the Act then it may be relevant. But if it’s not negligent it’s reasonable and one can use reasonable force anyway – see s 52(2)(l).  I simply can’t think of a situation where there would be a tort other than negligence where s 153B(1) would be relevant.

 When might Fire and Emergency Services Act 1990 (Qld) s 153B(1) apply?

There is one circumstance where the formula might work.  Section 53 of the Fire and Emergency Services Act 1990 (Qld) says:

(1) An authorised fire officer may take any reasonable measure—

(a) to protect persons, property or the environment from danger or potential danger caused by a fire or a hazardous materials emergency; or

(b) to protect persons trapped in any premises or otherwise endangered.

(2) Without limiting the measures that may be taken for a purpose described in subsection (1) , an authorised fire officer may for that purpose do any of the following—

(a) enter any premises;

(b) open any receptacle, using such force as is reasonably necessary;

(c) bring any apparatus or equipment onto premises;

(d) destroy, damage, remove or otherwise deal with any vegetation or any other material or substance, flammable or not flammable;

(e) destroy (wholly or in part) or damage any premises or receptacle;

(f) shore up any building;

(g) close any road or access, whether public or private;

(h) shut off the supply of water from any main, pipe or other source to obtain a greater pressure or supply or take water from any source whether natural or artificial;

(i) cause to be shut off or disconnected the supply of gas, electricity or any other source of energy to any premises or area;

(j) require any person who, in the opinion of the authorised fire officer, is—

(i) the occupier of premises, being the site of or near to the site of the danger; or

(ii) in charge of anything that is the source of the danger or likely (in the opinion of the officer) to increase the danger;

to take any reasonable measure for the purpose of assisting the officer to deal with the danger or answer any question or provide any information for that purpose;

(k) require any person not to enter or remain within a specified area around the site of the danger;

(l) remove from any place a person who fails to comply with an order given pursuant to paragraph (k) and use such force as is reasonably necessary for that purpose;

(m) if unable to identify the person entitled to possession of property found at or near the site of the danger, take possession of the property and retain it for safe custody.

Let us assume that a fire commander decides to take action under s 53(2)(i) that is he or she causes ‘…to be shut off or disconnected the supply of gas, electricity or any other source of energy to any premises or area’.  Let us also assume the area is a commercial area.  We can foresee that the disconnection of power is going to cause losses. Food and other perishables kept in refrigerators and freezers will be lost. But if that decision is made ‘honestly’ that is the commander is doing that as he or she believes that it is necessary for the purposes set out in s 53(1), because shutting off the power or gas will remove a fuel supply and make it safer for firefighters, and that is reasonable in the circumstances (ie not negligent) then by virtue of s 153B(1) no liability attaches to any person (ie the commander, or the QFES) for those actions even though it was foreseeable or even certain that there would be losses.

But, correctly, you point out that I said above, that In my view it does nothing at all and yet I’ve just given an example where it does do something. That’s true, it seems to me that s 153B(1) does have a role to play where a commander takes action knowing that it will cause damage but he or she does so without negligence (ie it’s reasonable) and they are doing it for proper purposes under the Act.  The problem is that is what the common law says too.

Where an authority is exercising a statutory function or power, it has a duty to take care not to injure those affected by that action – ‘persons acting under statutory powers (as well as persons performing statutory duties) might at common law be under a duty of care towards persons likely to suffer damage as a result of their carelessness’ (Council of the Shire of Sutherland v Heyman [1985] HCA 41) but where there is no lack of care, but the damage is ‘an unavoidable or inevitable consequence’ of the action then there is no liability (Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430; see also Mark Aronson, ‘Government Liability In Negligence’ [2008] Melbourne University Law Review 44-82, 53).

To return to Vaughan v Webb, Stephen ACJ said (at pp. 298-299):

I need hardly say that if the Legislature authorises that to be done which must of necessity cause injury, no liability can accrue to the person carrying out the will of the Legislature… So here the defendant would not be liable if the wall could not have been pulled down without injury to the plaintiff.

If a fire commander decides to disconnect the power to premises and that decision is not negligent then there can be no liability for the foreseeable, inevitable and unavoidable losses that are the consequence of that decision.  That is true whether s 153B(1) is there or not.  Section 153B(1) merely restates that common law position but in my view doesn’t add anything.

Perhaps s 153B(1) has a role to play where there is no statutory power, that is in the example given by my correspondent?

… a firefighter manages traffic around an incident to which they have been responded, that is not an authorised action by any of the crew and no training is provided in traffic management by QFES as result.

There they may be acting ‘honestly’ that is ‘to protect persons … otherwise endangered’ (s 53(1)) but with no specific statutory power.  But if the actions were not ‘reasonable in the circumstances’ they were negligent and s 153B(1) won’t help.  And if the actions were reasonable, s 153B(1) isn’t required.

Let me look then at the 4 possibilities suggested and assume the firefighter’s actions, in any example, were:

  • Honest and not negligent – s 153B(1) isn’t required as there is no liablity anyway, though codifying the common law may give some comfort;
  • Was both dishonest and negligent – s 153B(1) doesn’t apply, the action must be both honest and without negligence.
  • Was honest, but negligent – s 153B(1) doesn’t apply, the action must be both honest and without negligence; and
  • Was dishonest, but not negligent – s 153B(1) doesn’t apply, the action must be both honest and without negligence.
Hamcor Pty Ltd & Anor v State of Qld & Ors [2014] QSC 224

As I’ve noted on this blog, often enough, the fire and emergency services are not sued as often as people who read this blog appear to think they are.  There has however been a recent case involving QFES and if s 153B(1) was going to be relevant, it would have been relevant here – see Hamcor Pty Ltd & Anor v State of Qld & Ors [2014] QSC 224 (Dalton J) and my commentary, Queensland Fire and Rescue not liable after factory fire (October 3, 2014).  In my commentary I set out the facts as follows:

A fire broke out at the plaintiff’s chemical factory just after 10pm on 25 August 2005.  The Queensland Fire and Rescue Service (QFRS) responded promptly.  The response, the subject of the litigation, was that the QFRS poured a very large quantity of water onto the fire.  This water mixed with the chemicals and ran off the property causing a hazardous materials incident.  Much of the water soaked into the land with the effect that the land became dangerously contaminated.  The plaintiff was required to clear up the contamination, a clean-up that cost in excess of $9 million, much more than the land was worth.

At the time the relevant protection was found in s 129 of the Fire and Rescue Service Act 1990 (Qld).  That section said (emphasis added):

No matter or thing done or omitted to be done by any person pursuant to this Act or bona fide and without negligence for the purposes of this Act subjects that person to any liability.

To reformat the section, it said:

  1. No matter or thing
  2. Done; or
  3. Omitted to be done;
  4. By any person
  5. Pursuant to this Act; or
  6. Bona fide and without negligence for the purposes of this Act

subjects that person to any liability.

Compare that to the current s 153B(1) that says:

No liability attaches to

  1. any person
  2. for an act done, or
  3. omission made,
  4. honestly and without negligence
  5. under chapter 3.

Under s 129 the action had to be done either ‘pursuant to’ the Act OR ‘bona fide and without negligence for the purposes of this Act’.  In the course of her judgement, Justice Dalton said:

This contest proceeded on the basis, which I accept is correct, that if I found the first defendant owed a duty to the plaintiffs and had breached it, the second limb of s 129(1) would not protect the QFRS because the actions, although bona fide, were negligent.

She did however find that the QFRS did enjoy protection provided by s 129 because their actions were done ‘pursuant to’ this Act, that is they relied on the powers in s 53.  They were not defeated by the finding of negligence as there were two possible limbs of the defence.  They were protected if the acts in question were done pursuant to the Act OR bona fide without negligence.  They were not without negligence but they were pursuant to the Act so the defence applied.

The modern s 153B(1) does not have that ‘or’.  It says the actions in question must be done ‘honestly and without negligence under chapter 3’. I don’t think you can infer that there should be an ‘or’ between ‘negligence’ and ‘under chapter 3’.  In my post on Hamcor’s case I said:

Section 129 said

No matter or thing done or omitted to be done by any person pursuant to this Act or bona fide and without negligence for the purposes of this Act subjects that person to any liability

The Court had to split that section because a section that says there is no liability for an action that is ‘bona fide and without negligence’ is pointless.  Of course there is no liability if the Act is done without negligence.

The Fire and Rescue Service Act has recently been amended and it is now the Fire and Emergency Services Act 1990 (Qld).  Section 153B(1) says ‘No liability attaches to any person for an act done, or omission made, honestly and without negligence under chapter 3.’  If that had been the Act in 2005 it would not have provided a defence as the court found the action of Queensland, through the fire service, were negligent.  I have previously written on the Queensland liability protection provisions.  Although it worked in Hamcor, the reference to ‘without negligence’ at least makes them confusing, at worst makes them a pointless waste of time (see ‘A further review of the Malone Inquiry into the Queensland Rural Fire Brigades’ (11 June 2013)).

Conclusion

It is my view that a section such as s 153B(1) excluding liability only where ‘the act done, or omission made’ was done or made ‘honestly and without negligence’ do nothing at all.  And if it’s any authority (and it’s not) I’ve been saying that since the first edition of my book Emergency Law, published by the Federation Press in 1999.

However, before firefighters get too worried let me again remind them of the concept of vicarious liability.  To again quote from my earlier post on Hamcor’s case:

Firefighters and others often express concern about the risk of personal liability.   All the cases involving fire brigades have involved the State except for the Tasmanian case of Myer v State Fire Commission [2012] TASSC 54 where because of the structure of the Commission, it was the Commission rather than the State of Tasmania that was sued.  But in no case has it ever been suggested that an individual fire fighter could or would be liable for their actions.   Everyone should take comfort from that.

 

 

Categories: Researchers

Treating a professional athlete

Michael Eburn: Australian Emergency Law - 17 April, 2018 - 18:04

This question is inspired by events at the Gold Coast Commonwealth Games. My correspondent works

… for a private event medical provider and we are discussing the liability of a medic who intervenes when an athlete is in dire need of intervention, but this puts them at risk of being disqualified. Some of my colleagues are worried we could be sued. The obvious trigger for the discussion is the Gold Coast marathon runner.   Someone with ataxic movements from heat stroke is probably also cognitively impaired so paternalism may over-ride autonomy.

If people spend their lives worrying that they may be sued, it’s time to find another job.  The law here will be largely as it always is.  A person has a right to refuse treatment but if they are not competent treatment that is reasonably and in their best interests can be administered without consent.

The issues that would add complexity are the terms under which the race is run that not only provides for disqualification but would I suggest also provide for the provision of medical care and may well have various waivers in it, ie the athlete consents to treatment and waives various rights if officials intervene.  Professional athletes may have coaches who may be able to consent on the athlete’s behalf, so if you approach the athlete and the coach says ‘no’ you may hesitate to see what happens, but if it appears the athlete’s life is in danger then again you could step in.

The issue will be judged against what’s ‘reasonable in the circumstances’ which includes the medical response plan for the event and the rules under which the event is conducted which are matters I can’t comment on.

And in any event it will be the organisers, then the employer who would be sued long before any employee.

Categories: Researchers

Paramedics and recording honest advice

Michael Eburn: Australian Emergency Law - 15 April, 2018 - 18:33

Today’s question revisits the role of paramedics in giving honest advice to patients, including advice that they do not need to go to hospital. To a large extent I think it has been answered before – see Transport everyone or act as a professional? A question for paramedics (May 6, 2013) – but it’s worth returning too.  Today’s correspondent says:

Within the Queensland Ambulance Service we use the acronym VIRCA to validate that the decision to not transport a patient is safe for the patient, the paramedic and the organisation.

The components of VIRCA are V – Voluntary, I – Informed, R – Relevant, C – Capacity and A – Advice.

My question to you relates to the component of informed.

When I attend a patient and I provide them with my clinical findings, which may be along the lines that – with the limited tools that I have, I have been unable to find anything life threatening at this time. However, the only option for a more detailed assessment with a higher degree of assessment will be at a hospital emergency department. And then the discussion will generally follow my view that (generally) radiography, pathology and other assessments are generally required to form an accurate diagnosis.

I recently had dealings with a case where a member of the public made a complaint because it was their view that the paramedics should have been trying “to talk the patient into going to hospital” and this got me thinking. If the paramedics provide very clear information that the assessment is not all inclusive, and there may be underlying conditions which cannot be identified in a thorough ambulance assessment and the patient does not appear affected by any illicit drugs or alcohol and they are provided with the finding that the person should attend hospital for further assessment but they continue to refuse and the patient was left with discharge advice to call the ambulance service again if there is any change in the patient’s condition, or they become concerned in any way.

If all these factors have been fulfilled – where does the component of informed end? I have heard some colleagues say that they tell every person who refuses treatment and/or transport, that they may die. Now that could be true of any member of the population, but it does not seem reasonable or responsible in most instances. Do you believe that a line exists between the component of informed – and the thought that we should be talking patients into being assessed at hospital?

With registration for paramedics looming, I am particularly cautious of the cohort of patients who refuse treatment/transport against advice and the possible ramifications in the event that the patient does deteriorate.

I’d welcome your thoughts and advice.

Paramedics are, and certainly with registration will be expected to act as professionals. That means exercising judgment and acting in the best interests of your patient. A paramedic who says to every patient ‘who refuses treatment and/or transport, that they may die’ is not acting as a professional.  They are not acting as a professional because they are putting their own fear ahead of the needs of the patient.  They are not acting in the patient’s best interest.

Nor are they allowing the patient to make an informed choice.  It’s true the patient may die. In fact the patient will die.  It would not be wrong to say to every patient who refused transport ‘you are going to die’ but it’s not informative, particularly if the paramedic thinks there is no reason to suspect that they are going to die soon or from any condition that is currently showing symptoms.

In the days when ambulance services are encouraging people only to call triple zero in an emergency and empowering paramedics to exercise judgment on whether to transport or not, a person who tries to scare patients is not exercising that judgment and is not contributing to a holistic health service.

To be an informed refusal the patient must be competent, have the information upon which to make a decision (including the limitations that the person giving the information faces) and the refusal must cover the circumstances.  If the paramedic’s honest view is that there is no indication that the person needs to go to hospital then that too is part of the information the person needs in order to make an informed choice.

In the case involving the death of Stacy Yean (see No adverse comments regarding paramedics following death of a woman in Ballarat, Victoria (April 3, 2017):

The paramedics took two sets of observations, 10 minutes apart, and concluded that Ms Yean ‘may have a “gastric bug” and [her] presentation did not mandate transport to hospital’.   They offered to take her to hospital but did advise that the hospital was busy and she was likely to face a long delay in being seen.   In light of the advice, Ms Yean declined the offer of transport to hospital…

Ms Yean died later that evening though the exact cause of death was never determined.  The family were necessarily and understandably distraught that the paramedics, in their view talked Ms Yean out of going to hospital.  The paramedics on the other hand, said Ms Yean refused their offer of transport.  The Coroner said neither view was correct. The Coroner said (emphasis in original):

I find the interpretation put on the issue of transportation by both parties, AV and the family interesting. Ms Handley [one of the paramedics] states Ms Yean “refused” the offer of transportation. I would have thought a more appropriate interpretation would be “declined” rather than “refused”.  The family maintain Ms Yean was “talked out” of going to hospital; both interpretations are, in my view, strained.

I do not consider it unreasonable for a paramedic to advise a patient there may well be a significant delay in being seen at an Emergency Department, particularly if that paramedic has observed ambulances “ramped” earlier in the day.  The decision taken, while no doubt influenced by the prospect of a significant delay, ultimately was taken by Ms Yean, I do not accept she was refused transport to hospital.

The bottom line is, the offer of transportation was made, but declined.  Of course no one could have predicted the tragic event which unfolded sometime overnight, at a time I am unable to determine.

Professor Stephen Bernard, Senior Medical Advisor to Ambulance Victoria gave evidence.  He said (again, emphasis in original):

Bearing in mind that the paramedics are the professionals, I suggest that in the final analysis their assessment of the patient, following clinical guidelines, is the appropriate basis upon which a decision is taken to transport, or not.

That was not a position that the Coroner disagreed with.  As I said in that earlier post:

The coroner was not critical of the decision to advice Ms Yean of the likely delay nor of the decision of Ms Yean to choose not to go to hospital.  Paramedics are professionals and are there to exercise their professional judgment.  They could not have foreseen the consequence in this case.

My correspondent however changes the question.  What starts with advice that there is no indication that further treatment is indicated, subject of course to the paramedic’s limitations, becomes:

With registration for paramedics looming, I am particularly cautious of the cohort of patients who refuse treatment/transport against advice and the possible ramifications in the event that the patient does deteriorate

When I read the first part of the question the appearance was that the refusal was not ‘against advice’.  The confusion lies in identifying what is the paramedic’s advice.  If a paramedic forms a professional view that the patient would benefit from transport to hospital then they should give that advice, and if the patient refuses so be it.  If, on the other hand, the paramedic is of the view that transport is not warranted then that should also be the advice.  In that case the patient is not refusing transport against advice, they are declining transport based on that advice (as Ms Yean did).   One should not pretend that advice has been given to every patient and every patient who is not transported has ‘refused’ treatment. That was the perspective put forward by the paramedics who treated Ms Yean and was the perspective that coroner said was ‘strained’. Ms Yean heard the advice of the paramedics and chose not to (not refused) to go to hospital. Nor was she refused transport.

The critical first step then is to be sure what your advice is.  It might range from

  1. ‘There’s no need to go to hospital, transport to hospital would be a waste of everyone’s time” (in which case you would, hopefully decline to transport the person, a health professional should not provide futile treatment); to
  2. ‘There may be value in going to hospital, there are symptoms that I can’t be sure about the causes and transport to hospital may be beneficial, but you may have a long wait, I am unable to find anything life threatening at this time…’ and whatever else your advice may be; to
  3. ‘You are in urgent need of medical attention and I am concerned that if you do not agree to come with me your condition may deteriorate with long term consequences or you may die’.

A patient who chooses not to go to hospital after receiving advice suggested in point 2 above, like Ms Yean, is not refusing treatment against advice and there’s no point pretending that they are.  Pretending that your advice is to always go to hospital, when your opinion is that hospital treatment is not indicated is unhelpful, unconvincing and unprofessional (see also Refusing treatment documentation (June 9, 2016)).

Conclusion

I don’t really understand the question ‘Do you believe that a line exists between the component of informed – and the thought that we should be talking patients into being assessed at hospital?’    But I can say that I disagree with the ‘thought that we should be talking patients into being assessed at hospital’.  If that’s what paramedics are going to do let’s call them taxi drivers.

Paramedics need to give their professional advice subject to the limitations that paramedics face in making judgments about the patient’s condition.  But not everyone who rings for an ambulance needs to be transported to hospital. With registration as professionals paramedics will be expected to be professional and that means put their patient’s interest first. If that means advising them to go to hospital, then say that.  If that means discussing the costs and benefits and allowing them to make an informed choice then say that too.  And if that means refusing to transport then say that.

The patient who refuses treatment against advice is responsible for the consequences of their own decisions (see More on DNR tattoos (January 30, 2018)).  The patient who accepts your advice, or takes into consideration your advice and chooses not to go to hospital does not expose the paramedic to professional discipline.  I’ll leave the final word to Professor Bernard:

Bearing in mind that the paramedics are the professionals, I suggest that in the final analysis their assessment of the patient, following clinical guidelines, is the appropriate basis upon which a decision is taken to transport, or not.

Categories: Researchers

The fire commander v the fire brigades duty of care

Michael Eburn: Australian Emergency Law - 15 April, 2018 - 15:41

Today’s question comes from an officer with a fire brigade, though I don’t know which one.  In any event, my correspondent was

… the OIC at a house fire which had solar panels on the roof. As standard practice we isolate mains power from a building before we commit a crew to an interior attack. Currently our service recommends covering solar panels with a tarp which obviously we can’t do with a going fire underneath. In most circumstances we enter the building without doing anything about solar panels.

Recently I heard about a product that covers solar panels with a dark liquid that can be deployed without having to get on the roof. I’ve approached my service about it but haven’t received a response from them.

  • What is my liability for committing crews to a building with a known electrical hazard that hasn’t been addressed?
  • Should I be restricting operations to external firefighting for buildings with solar systems?
  • If I do commit crews to internal attack (as is normal practice) am I at additional risk because I’ve researched a solution but my service hasn’t implemented it?

I don’t know if this is the product that my correspondent is referring to, but a google search identifies at least one product (http://www.pvstop.com.au/products/) that is intended to act ‘as a liquid blanket to make solar panels safe. In the event of a short circuit or an emergency (such as a fire or flood) solar panels continue to produce potentially lethal amounts of DC voltage… The primary function of PVStop is to render panels to be electrically safe while acting as a fire retardant solution.’

I can’t answer the questions:

What is my liability for committing crews to a building with a known electrical hazard that hasn’t been addressed?

Should I be restricting operations to external firefighting for buildings with solar systems?

I can’t answer those questions as they require technical knowledge of accepted and reasonable practice within the fire fighting community, both on the risks, the best way to address the risk and the cost benefit.  If my correspondent’s fire brigade has provided training and policy direction on how to address these issues then there can be no personal liability on the commander for acting in accordance with that training.  If the training itself, or the procedures are inadequate, or the service has not considered the risk, then any liability falls to the fire service.

In Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356 the issue was the response of NSW Fire Brigades (as they were then) to a silo fire.    Allegations included:

  • Failure to provide safe system of work;
  • Failure to provide information to its employees regarding the risk of spontaneous combustion in stored seed meal, including cottonseed meal;
  • Failure to provide its employees with information regarding the fire and/ or explosion risks associated with the heating and/ or partial combustion of seed meal;
  • Failure to provide its employees with information regarding the chemical characteristics of substances associated with seed crushing plants and, in particular, the capacity of seed cake and seed meal to spontaneously combust, smoulder and give off pyrolytic vapours and gases;
  • Failure to provide its employees with information regarding the chemical characteristics of substances associated with seed crushing plants and, in particular, the capacity of seed cake and seed meal to give off pyrolytic vapours and gases when subjected to heating; and
  • Failure to provide adequate information, instruction and training to its employees with respect to use of the “Dangerous Goods – Initial Emergency Response Guide” book.

There was no suggestion that the firefighters, who had to do the best they could in the circumstances, had any personal liability.  Equally in the context described, it’s the commander’s job to undertake a risk assessment taking into account all the risks including the still active solar panels.  What the right outcome of that assessment is I can’t say.   You need to ask another firefighter ‘Should I be restricting operations to external firefighting for buildings with solar systems?’

As for the question ‘If I do commit crews to internal attack (as is normal practice) am I at additional risk because I’ve researched a solution but my service hasn’t implemented it?’ the answer is ‘No’. No doubt the service has a process to assess new technologies and to decide what to buy and supply, and when.

In WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) [2001] NSWIRComm 90 the NSW Police Service was prosecuted for failing to ensure the health and safety of two police officers who were ambushed and killed when approaching a man who had previously threatened to harm his former girlfriend.  Part of the case against the police force (and not the person who dispatched those officers to the job) was that the police firearms were inadequate. We need not consider the details of what happened or the various issues that arose in that case, but at [15] Hungerford J said to counsel for the police:

Perhaps it’s a matter of degree. This is an area that I’m really troubled about, I have to say to both of you because where is the line drawn? One might say, having in mind quite apart from the terms of the Act, even the common law duty to provide a safe working environment… there seems to be at least an argument supporting the proposition that the employer must provide certain equipment to ensure safety. Perhaps that’s right, but how far does one go? This is what is troubling me. Does one say that the employer has to provide helmets, shields, bullet proof vests, Glock pistols, immediate back up support and so on? It is that question of degree where I’m trying to balance the obligations cast by the section and particular circumstances.

Charges against the police with respect to the failure to provide Glock pistols and rapid reload devices for the service revolvers were dismissed.

Equally for firefighters where is the line drawn?  No doubt there is much more equipment that could be provided, perhaps robots for internal firefighter, more crews for each response, technology that I have no idea about etc.  But just as the police force doesn’t have to make every police car an armoured vehicle (QPS launch new EORT armoured vehicle (March 22, 2017)) not every piece of equipment has to be issued to a fire brigade.  Whether technology such as PVStop should be purchased and issued requires consideration of multiple factors – risk, cost, alternatives etc.

I am lucky enough to regularly attend the annual conference of the Australian Fire and Emergency Services Authorities Council (AFAC).  There is always an impressive trade display of people selling the latest technology ranging from PPE to fire appliances. Imagine a fire commander seeing that the newest appliance has safety features that are not on the appliances currently used by his or her brigade. The Commander can’t be liable because the brigade continues to use the older appliances nor is the Commander required to buy a new appliance for the brigade. You use the equipment you have and the training you have.

What do you do?

Assuming my correspondent’s brigade is from a jurisdiction other than Victoria or Western Australia, there will be a work health and safety Act based on the model act developed in 2011.  In WA and Victoria older style occupational health and safety legislation is in place. In each state and territory that legislation provides for employee consultation on work risks.  A commander who thinks there is a risk (active solar panels) where training is inadequate or available and suitable technology is not be used then there are processes to raise this with the employer.  Ranging from raising it in a W/OHS committee meeting, to bringing in the work cover regulator or issuing stop work notices there are processes in place.  If my correspondent thinks the issue of active solar panels presents a risk to health and safety that is not being adequately addressed he or she should follow those procedures.

Conclusion

There is however no risk of personal liability if the commander does his or her job in accordance with training and with issued equipment.   Part of that training no doubt is to conduct a risk assessment at every job. Part of the risk will be the presence of active solar panels.  What should be the outcome of that risk assessment, ie

  • Should crews be committed to a building with a known electrical hazard that hasn’t been addressed?; and
  • Should I be restricting operations to external firefighting for buildings with solar systems?

Are technical not legal questions.  They only become legal questions if the consensus of opinion of experts in firefighting is ‘no’ and ‘yes’ respectively.

 

Categories: Researchers

ACT introduces emergency service speed limit – and a comparative table

Michael Eburn: Australian Emergency Law - 14 April, 2018 - 19:47

The 40km/h emergency service speed restriction came into operation in the Australian Capital Territory today, Saturday 14 April.

The process of introducing the new rule

The new rule was introduced by the Road Transport (Safety and Traffic Management) Amendment Regulation 2018 (No 1) (ACT).  That Regulation inserted a new r 59 into the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT).  (The Road Transport (Safety and Traffic Management) Regulation 2000 (ACT) is due to be repealed on 30 April 2018.  The rule requiring drives to slow down when approaching or passing an emergency service vehicle will then appear as r 300C in the Road Transport (Safety and Traffic Management) Regulation 2017 (ACT))

The rule itself

The Road Transport (Safety and Traffic Management) Regulation 2000 (ACT) s 59 says:

Approaching and passing stationary or slow moving emergency vehicle etc

(1) This section applies if a police vehicle or an emergency vehicle is—

(a) on a road; and

(b) stationary or moving slowly; and

(c) displaying flashing red or blue lights (whether or not it is also displaying other lights or sounding an alarm).

(2) A driver of a vehicle on the road must—

(a) approach the police vehicle or emergency vehicle at a speed at which the driver can, if necessary, stop safely before reaching the vehicle; and

(b) give way to any police officer or emergency worker on foot near the police vehicle or emergency vehicle; and

(c) pass the police vehicle or emergency vehicle at a speed of not more than—

(i) 40km/h; or

(ii) if the applicable speed limit at the point the driver passes the police vehicle or emergency vehicle is less than 40km/h—the speed limit; and

(d) after passing the police vehicle or emergency vehicle, drive at a speed at which the driver can, if necessary, stop safely, until the driver is a sufficient distance past the vehicle that the increase in speed does not risk the safety of any police officer or emergency worker on foot near the vehicle.

Maximum penalty: 20 penalty units.

(3) Subsection (2) does not apply if the driver is driving on a road that is divided by a median strip and the police vehicle or emergency vehicle is on the other side of the road and beyond the median strip.

What is ‘a police vehicle or an emergency vehicle’?

The Dictionary attached to the Road Transport (Safety and Traffic Management)

Regulation 2000 (ACT) defines a police vehicle as:

…  any vehicle driven by a person who is—

 (a) a police officer; and

 (b) driving the vehicle in the course of his or her duties as a police officer.

A police officer is ‘a member or special member of the Australian Federal Police’ (Legislation Act 2001 (ACT) s 144 and Dictionary, Part 1).

An emergency vehicle is:

… any vehicle driven by a person who is—

(a) an emergency worker; and

(b) driving the vehicle in the course of his or her duties as an emergency worker.

An ‘emergency worker’ is”

(a) a member of the ambulance service rendering or providing transport for sick or injured people; or

(b) a member of the ambulance service, the fire and rescue service, the rural fire service or the SES providing transport in an emergency; or

(c) a person who is declared by the road transport authority under section 66 (1) (g) (Approvals etc by road transport authority) to be an emergency worker.

We can, without tracing all the possible permutations and variations, conclude that the vehicles that are ‘police and emergency vehicles’ for the purposes of the ACT rule are those vehicles operated by the Australian Federal Police, ACT Ambulance, ACT Fire and Rescue, ACT Rural Fire Service or ACT State Emergency Service (see also (Legislation Act 2001 (ACT) s 144 and Dictionary, Part 1).

That means the rule does not apply if the only vehicle on scene is a vehicle from a visiting emergency service eg NSW RFS but that is likely to be irrelevant. A person approaching a scene with emergency service vehicles is unlikely to be able to identify which service they are from so a prudent driver will slow down as if the rule applies.  And there need only be one ACT vehicle (with its blue and red lights on) in a sea of interstate vehicles and the rule does indeed apply.

How can a ‘driver of a vehicle on the road … approach the police vehicle or emergency vehicle at a speed at which the driver can, if necessary, stop safely before reaching the vehicle’ yet still pass the vehicle?

This section is akin to r 79A(1) of the Road Safety Road Rules 2017 (Vic) and s 137A(2) of the Road Traffic Code 2000 (WA).  If you are more than 26m from the emergency vehicle, you can travel at 40km/h and stop in that distance (see Queensland Transport, https://www.qld.gov.au/transport/safety/road-safety/driving-safely/stopping-distances/graph/index.html).

As you get closer, you must be travelling slower to be able to ‘if necessary, stop safely before reaching the vehicle’. When you get to 1/2m from the vehicle you have to be stopped because no speed will allow you stop safely before reaching the vehicle. These sections are therefore meaningless other than if a driver does have an accident when passing a police or emergency vehicle then that would be evidence that they were not travelling at a safe speed and could be charged with this offence. In effect it creates a strict liability offence where you can be guilty regardless of what happened or how the accident occurred.  It is not clear if that was what was intended, in fact it is not clear what is intended by this subsection at all.

Rules 2(b) and (c) don’t appear problematic save that if you comply with 2(a) you can’t pass the emergency or police vehicle at all.

A comparative table

A correspondent suggested that what was required was a matrix explaining the different rules and penalties in each jurisdiction. I have created that matrix and you can access it here – speed limits matrix

Categories: Researchers

Emergency service speed zone announced for the Australian Capital Territory

Michael Eburn: Australian Emergency Law - 9 April, 2018 - 13:51

Further to my post Update on emergency service speed zones (April 8, 2018), I can report that the Australian Capital Territory has also announced the introduction of the 40km/h speed zone with effect from 14 April 2018 (ie next Saturday) – see ACT Emergency Services Agency, New laws requiring drivers to slow down while passing emergency vehicles at the side of the road (Undated)

It would appear, from this announcement, that the ACT rules will be based on the Victorian rules. It appears they will carry over the requirement, that is in both the Victorian and WA rules (Road Safety Road Rules 2017 (Vic) r 79A(1); Road Traffic Code 2000 (WA) r 137A(2)) ‘to slow down to a speed that would enable you to, if necessary, stop safely when approaching and passing police or emergency vehicles’. As noted in my post on the Victorian rules (New speed limit when passing emergency vehicles in Victoria (June 20, 2017)) that rule implies you can’t ever pass a stationary vehicle, but of course that is not what is intended.

It will be difficult for the ACT to have that rule, whilst NSW waits until 1 September.  Drivers from NSW who are made aware of the implementation date in that state may not realise that it will already apply when they drive into the ACT.  If driver’s from the ACT drive into NSW (as we do often) it won’t hurt if they slow down even if not required to (provided the driver behind them is leaving enough room and paying attention to them and not the emergency service vehicle).

And as a resident of the ACT this is the first I have heard of a rule that is intended to come into force at the end of this week!  Hardly time to allow police and the ACT government to ‘educate the community about safe speeds around incidents to prevent the death or serious injury of workers and others at the scene.’

Categories: Researchers

New Victorian Advanced Care Directive legislation and self harm

Michael Eburn: Australian Emergency Law - 8 April, 2018 - 18:44

 

Today’s question relates to advance care directives and suicide.   My correspondent is

… a paramedic in Victoria.

Victoria has had a recent change in law regarding end of life wishes. People can now implement Advanced Care Directives, where one may choose to refuse a medical treatment such as CPR. My understanding is that the Advance Care Directive does not need to be specifically related to a current medical condition.

My question: if a person has an Advanced Care Directive. For example, stating that they refuse CPR, and then self-harms, is this directive still legally applicable?

The change referred to is the Medical Treatment Planning and Decisions Act 2016 (Vic) which came into force on 12 March 2018.   For the purposes of the Act (s 4):

A person has decision-making capacity to make a decision to which this Act applies if the person is able to do the following—

(a) understand the information relevant to the decision and the effect of the decision;

(b) retain that information to the extent necessary to make the decision;

(c) use or weigh that information as part of the process of making the decision;

(d) communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means.

(Note that those tests largely reflect the common law discussed in Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112 which in turn is discussed in many posts on this blog – see https://emergencylaw.wordpress.com/?s=gillick),

Under the Act a person can give an ‘instructional directive’ that is an express statement of treatment that is or is not accepted.   Such a directive ‘takes effect as if the person who gave it has consented to, or refused the commencement or continuation of, medical treatment, as the case may be’.  So an ‘instructional directive’ by a person with capacity that the person refuses CPR would be an effective refusal of that treatment.   A person can also give a ‘values directive’ indicating the sort of factors and outcomes they would want a decision maker to consider when determining whether to provide particular treatment or not (s 6).

The Act does not limit or remove a person’s right to refuse treatment in accordance with the common law (s 10).  The common law has been widely discussed in other posts in this blog – and see for example The doctrine of necessity – Explained (January 31, 2017).

An advance care directive must not

…  include any of the following statements—

(a) a statement that is unlawful or would require an unlawful act to be performed;

(b) statement that would, if given effect, cause a health practitioner to contravene a professional standard or code of conduct (however described) applying to the profession of that health practitioner;

If it does contain any such statement that statement can be severed from the directive and need not be complied with.  That is however not very helpful in this context.  One might think that a professional standard of a doctor or paramedic is to save a person’s life if they can but professional standards do require that treatment is given that is consistent with the patient’s wishes and values.  It is not necessarily ethical to save someone who wants to die.

Section 51 says:

A health practitioner may refuse under this Part to comply with an instructional directive if the health practitioner believes on reasonable grounds that—

(a) circumstances have changed since the person gave the advance care directive so that the practical effect of the instructional directive would no longer be consistent with the person’s preferences and values; and

(b) the delay that would be caused by an application to VCAT under section 22 would result in a significant deterioration of the person’s condition.

(The definition of health practitioner includes ‘a registered health practitioner’ so it will cover paramedics when they are registered under the national health practitioner registration scheme.  The definition also includes ‘an operational staff member within the meaning of the Ambulance Services Act 1986’ so that covers Ambulance Victoria paramedics before national registration).

Finally, s 53 says:

(1) Subject to subsection (2), a health practitioner may administer medical treatment (other than electroconvulsive treatment) or a medical research procedure to a person without consent under this Part or without consent or authorisation under Part 5 if the practitioner believes on reasonable grounds that the medical treatment or medical research procedure is necessary, as a matter of urgency to—

(a) save the person’s life; or

(b) prevent serious damage to the person’s health; or

(c) prevent the person from suffering or continuing to suffer significant pain or distress.

(2) A health practitioner is not permitted to administer medical treatment or a medical research procedure to a person under subsection (1) if the practitioner is aware that the person has refused the particular medical treatment or procedure, whether by way of an instructional directive or a legally valid and informed refusal of treatment by or under another form of informed consent.

To guide practitioners, Victoria’s Health and Human Services have published: Advance care directives and attempted suicides: Medical Treatment Planning and Decisions Act 2016 (Victoria State Government, December 2017).  This is a vague document that again is somewhat unhelpful because, like this blog, it ‘is general guidance intended to help practitioners understand their obligations under the Medical Treatment Planning and Decisions Act 2016. It does not constitute legal advice nor does not take into account individual circumstances.)

Discussion

The Act itself is silent on the issue of self-harm so the fact that the patient has engaged in self-harm does not automatically mean the advance care directive can be ignored.  The question that need to be considered is where they competent at the time the directive was made? (The answer to which may be ‘no’ if they were already suicidal); Have circumstances changed since the directive was made so that one can question whether it still reflects their wishes – did they really want to refuse lifesaving treatment if, when depressed, they tried to kill themselves if when making the directive depression was not something they’d ever experienced?

The guide says ‘…if a person wants to refuse all medical treatment in their advance care directive, a medical practitioner should ask why before witnessing the document. If the person intends to self-harm or is expressing suicidal thoughts, the medical practitioner should refer the person for a psychiatric assessment.’  That is not much help to paramedics who are not going to be witnessing these documents but who have to act on them.

It may be that a person wants to refuse treatment as they are suffering from a debilitating or terminal condition. Their decision to refuse all life sustaining treatment may well be informed and competent.  Further at the time of making it they may not intend self-harm.  If their condition deteriorates over time and they decide, for example, to overdose on medication with the intention of taking their own life, that could be very consistent with both their instructional directive and their values directive.

If a person has a values directive, eg that they do not want to be maintained in persistent vegetative state, and their self-harm has indeed left them in that state, then it would seem consistent and, in my view, appropriate, to honour that directive even if the cause of that injury was their own action.

The critical issue lies in s 52. That says that a health practitioner who, in good faith, acts in  accordance with a directive, is not liable to any civil, criminal or professional penalty.  As the Guide published by Health and Human Services says:

In the unlikely event that a person who has attempted suicide and in those circumstances has a readily available advance care directive refusing all treatment, health practitioners and paramedics should be mindful of the terms of the purported advance care directive and consider their professional obligations and any applicable code of conduct.

And to the extent that they can, the circumstances in which the directive was made and the circumstances of the self-harm involved.

Health and Human Services says:

The Crimes Act 1958 provides that ‘every person is justified in using such force as may reasonably be necessary to prevent the commission of suicide or of any act which he believes on reasonable grounds would, if committed, amount to suicide’. The existence of this section in Victorian law may significantly mitigate against the existence of unprofessional conduct or professional misconduct in circumstances where, despite an advance care directive, medical treatment is administered to save the life of a person who the practitioner is aware has attempted suicide.

They are not prepared to say that this Act would provide a defence and indeed it simply begs the question of what is ‘suicide’?  Note that in Stuart v Kirkland-Veenstra [2009] HCA 15 it was said that the fact that a person was contemplating or attempted suicide was not necessarily proof that they are (or were) mentally ill.  There it was said (at [94]):

Bracton, writing in the 13th century, recognised the complexity of suicide. Bracton contrasted the case of “a man [who] slays himself in weariness of life or because he is unwilling to endure further bodily pain” from one who “lays violent hands upon himself without justification, through anger and ill-will, as where wishing to injure another but unable to accomplish his intention he kills himself”.

Today we may not draw the same analogies, but many people would see a difference between a person, in the final stages of their life seeking to hasten their death rather than face further suffering and ignominy and a young, otherwise fit and healthy person, seeking to end their life whilst suffering from clinical depression or perhaps as Bracton suggests, to ‘get back’ at someone who has rejected them.

Conclusion

There’s no easy answer as each answer will depend on the circumstances.  A health practitioner, including a paramedic who thinks about it and in good faith honours the directive (s 52) or in good faith ignores it (s 51) is protected.

Such conclusions are somewhat unhelpful. Looking simply at the terms of the Act, on balance I would say that the fact that the person’s injuries are caused by self-harm, save in circumstances where they may have already been contemplating self-harm at the time the directive was written, does not invalidate the advance directive.

Categories: Researchers

Compensating volunteer ambulance officers in WA

Michael Eburn: Australian Emergency Law - 8 April, 2018 - 17:28

Today’s question is:

Recently while on duty with St John Ambulance in WA myself and two fellow volunteers were transporting a patient between hospital and a residential care facility. When we arrived at the care facility there was a significant delay while suitable staff were located who were trained to operate the hoisting equipment that they needed to transfer the patient.

While we were waiting one fellow volunteer noted that they were in fact trained to use the hoist, as they also worked in a care facility outside of their volunteering with St John. They were unsure, however, if they were ‘covered’ by St John to use that skill while on duty because they had not been trained by SJA and were not sure if they were ‘authorised’ by SJA to use hoists.

Additionally, the second volunteer I was with noted that in their paid employment with St John as a transport officer they were in fact trained to use hoists by SJA, however they were also concerned that they were not ‘authorised’ in the present context. The concern was raised as to who would be ‘liable’ if an accidental injury occurred while using equipment or skills when St John had not provided training for or ‘authorised’ that equipment or skill.

Perversely, it seemed that we might actually be ‘safer’ transferring our patient using slide boards, rather than a hoist and after quite a long wait we were in fact about to slide the patient, however the care facility found the right staff to hoist the patient just before we did so.

In some other states and territories it seems that volunteer workers are covered by the same kind of schemes that are in place for paid staff who are injured at work. In WA, this seems to be different.

If we had hoisted the patient and a volunteer had been accidentally injured while doing so, would St John have been obliged to cover costs associated with an injury? Does it make a difference if we are trained (by SJA or otherwise) to hoist? Does it make a difference if we are not explicitly authorised to do so? If we are explicitly forbidden to do so?

Very much obliged if you can shed some light on these questions.

First let me note it’s perverse to think one is ‘safer’ not to use a hoist that one is trained to use, and risk injury but be covered for insurance.  Surely it’s better not to get hurt, than to get hurt but hope there’s a workers compensation policy in place.

Second my correspondent’s comment:

In some other states and territories it seems that volunteer workers are covered by the same kind of schemes that are in place for paid staff who are injured at work. In WA, this seems to be different.

Is not quite correct. To take NSW as an example, the Workplace Injury Management and Workers Compensation Act 1998 (NSW) Sch 1, cl 16 says volunteers with NSW Ambulance are deemed employees.  Volunteers with NSW RFS, NSW SES and others are covered for workers compensation by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).

It’s not that volunteer workers, for any agency, are covered by the same sort of compensation scheme that is in place for paid staff.  Rather volunteers for the state-run emergency services are covered by the same (or similar) schemes as the paid staff, but volunteers for other agencies eg a Lions Club, rely on the club’s own policy and insurance schemes.

(I do acknowledge that in every state other than WA and Victoria, there is the model Work Health and Safety legislation.  For that legislation a ‘worker’ includes a ‘volunteer’.  That means in those states a volunteer has to be considered alongside workers when implementing health and safety measures, but the Work Health and Safety laws are not the same as the workers compensation laws.  The fact that a person is a worker for the purposes of the Work Health and Safety Act 2011 (NSW) does not mean that person is also a worker for the purposes of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)).

To turn though, to the subject of the question that is the issue of compensation for St John (WA) volunteers.  By virtue of the Services Agreement Between State of Western Australia and St John Ambulance Western Australia Limited (1 July 2015 to 30 June 2018; cl 7.1(e)) St John is required to maintain:

Personal Accident insurance covering Service Staff engaged by the Provider on a voluntary basis for an amount equal to the current Prescribed Amount under the Workers’ Compensation and Injury Management Act 1981 (WA).

That clause doesn’t say that the insurance has to be in exactly the same terms as no fault Workers compensation only that insurance must cover the ‘prescribed amount’; that is $119 048 as at 30 June 2000 indexed in accordance with the Act (Workers’ Compensation And Injury Management Act 1981 (WA) s 5, definition of ‘prescribed amount’).  Whilst it may not specifically spell it out, the implication is that volunteers are to be insured as if they are employees.

I note that on the webpage offering information for potential regional volunteer ambulance officers, it says:

Volunteers will be informed of the Occupational Safety and Health requirements applicable to volunteers. Safety Injury and Support Services provide extensive information about their services and policies on the intranet.

I don’t have access to the intranet so can’t comment on what safety injury and support services are provided.

Discussion

Workers compensation is a no-fault scheme. One can be disqualified from benefits for ‘serious and wilful misconduct’ (Workers’ Compensation and Injury Management Act 1981 (WA) s 22) but that is not what is being described in the question.  The fact that the hoist was there, and two members were trained in its use, one by St John, would suggest that a prudent employee would use it rather than risk injury by manual handling.  The arrival of the care staff is not going to change the risk to the patient. And there is only one entity, St John (WA) so the fact that a volunteer was trained in the course of his employment with St John means he or she was trained by St John.  Playing semantics as to where the training comes from does nothing to advance either patient or volunteer safety.

Conclusion

Whilst every case depends on its facts it is my view impossible that St John, via the insurance policy it is required to maintain, would not be required to provide injury compensation and rehabilitation services to employees if they were injured in the circumstances described.

 

 

 

Categories: Researchers

Update on emergency service speed zones

Michael Eburn: Australian Emergency Law - 8 April, 2018 - 16:20

In reply to my earlier post – No special speed zones when passing emergency service vehicles except in South Australia (January 4, 2017) I was asked:

I read that the law has changed in Victoria and SA and is about to change in WA. Can we have an update please?

Indeed the law has changed. From 1 July 2017 there has been a 40km/h speed limit when passing emergency vehicles in Victoria – see New speed limit when passing emergency vehicles in Victoria (June 20, 2017).    .

Western Australia also introduced a 40km/h speed limit with effect from 2 March 2018 (Road Traffic Code 2000 (WA) r 137A(4); see also WA Road Safety Commission Emergency and breakdown vehicles: Slow Down, Move Over).   The WA rule applies whenever there is a stationary incident response (not just an emergency services) vehicle that is ‘is displaying a flashing light other than a turn indicator light or hazard warning light’ (r 137A(1)).

It has been announced that the 40km/h rule will be introduced in both Tasmania (Melissa Mobbs, ‘Tasmanian drivers will be forced to slow down when passing emergency vehicles under new lawsThe Examiner (Online) 22 February 2018) and New South Wales (Troy Grant, Minister for Police and Emergency Services, Media release – New 40km hr rule to protect emergency service workers and volunteers, 8 April 2018). The NSW rule will come into effect on 1 September 2018.

The 40km/h road rule has not been introduced in Queensland, the Northern Territory or the Australian Capital Territory but it seems inevitable that it will be introduced at some time.

The law in South Australia remains as discussed in the original post, that is a 25km/h speed limit.

Categories: Researchers

Is there an obligation to call triple zero?

Michael Eburn: Australian Emergency Law - 3 April, 2018 - 14:50

This question is prompted by a news story that came out last week – see Bellinda Kontominas and Lily Mayers ‘Hot air balloon company criticised by police for not calling triple-0 after crash that injured 9ABC News (Online) 30 March 2018.

The gist of the story is that a hot air balloon with 24 passengers and crew ‘crashed after hitting a tree while trying to land in the tourist town of Pokolbin’ (in New South Wales).  Nine people were taken to Cessnock Hospital by private vehicles.  No call was made to either NSW Ambulance or Police.

Inspector Rob Post, from Hunter Valley Police, said he was unsure what processes the company had in place in the event of a balloon crash, but he would have expected them to call triple-0…

He said police were not looking to lay any criminal charges in relation to the company’s failure to report the crash.

With respect to the injured, the story reports NSW Ambulance Inspector Luke Wiseman saying:

… nine people were taken to Cessnock hospital… injuries included suspected broken bones.

Two people with suspected spinal injuries were later transported to John Hunter Hospital in stable conditions for additional testing…

He said in circumstances where people were injured, it was important that emergency services be called so patients could be properly assessed and triaged.

Damian Crock, from the Professional Ballooning Association of Australia is quoted as saying:

“The pilot deemed that there was no need for emergency services to be called.”

“As a precautionary measure, three passengers were transported to Cessnock Hospital after the pilot had enquired into each passenger’s welfare,” he said…

“It’s certainly a regrettable incident and people have been injured, so we can definitely confirm that, but their injuries are not life threatening,” he said.

With respect to the number of patients, it appears nine attended hospital, but the pilot only inquired about three.  It may be that the pilot didn’t know that others were injured and that may be because they didn’t tell the pilot, or the pilot didn’t inquire.  We don’t know those details.

Assumptions

For the sake of this discussion I will assume:

  1. Given that two people ‘were later transported to John Hunter Hospital’ there were at least two serious injuries, but none were obviously life threatening; and
  2. The pilot did not appreciate the serious nature of those injuries.

Given those assumptions, the question I want to consider is: Was the failure to call triple zero illegal?  Is there any obligation to call triple zero?  If the answer to those questions is ‘no’ then it stands to reason that ‘police [are] not looking to lay any criminal charges in relation to the company’s failure to report the crash’ because there would have been no crime committed.

Is there an obligation to call triple zero?

The answer is clearly ‘no’; there is no legislation that says, in these circumstances, a triple zero call must be made.  We can take a broader view here.  The NSW SES are the combat agency for floods and storms, but if my property is affected by a flood or storm I don’t have to call them; I can sort it out myself.  Equally if there is a fire in my home and I put it out I don’t have to call the fire brigade even though Fire and Rescue NSW or the NSW RFS are responsible for providing firefighting services.  And if I want to drive someone to hospital rather than call an ambulance I can.

With respect to ambulance services, they encourage people not to call triple zero.  NSW Ambulance says ‘Save Triple Zero (000) for saving lives and only call in a medical emergency’.  It gives examples of when to call an ambulance such as ‘injury from a major car accident’ or ‘falling from a great height’.  Being a balloon hard landing is not the same as falling from a great height (they didn’t fall from the balloon) but in any event, accepting the advice from NSW on face value, it would have been appropriate to call triple zero for an ambulance, but that doesn’t create an obligation to do so.  In any case, someone has to decide that a person is injured, that is that the accident has caused a medical emergency. If we take (again on face value) the comment that ‘”The pilot [and presumably everyone one else who could have called triple zero] deemed that there was no need for emergency services to be called”’ then there can be no reason to call.  If we’re going to   ‘…only call [triple zero] in a medical emergency’ there can be no obligation to call, and people are in fact discouraged from calling, if they don’t think there is an emergency.

As I argued in a recent article that appeared in Response (a publication of Paramedics Australasia of which I’m a board member; see Michael Eburn and Ruth Townsend, ‘’Save OOO for emergencies’: A flawed approach to reducing demand for emergency ambulance services’ (2017) 44(4) Response 23-26 at p. 25):

Campaigns such as ‘Save 000 for emergencies’ seek to manage demand by encouraging people not to call for an ambulance unless they have accurately assessed that the situation is an emergency.  Campaigns like this are, however, asking the community that is made up of fallible and flawed human beings [and balloon pilots], to make the decision and to accept the risk that they are not in need of urgent care. Asking people not to call unless it is an emergency, and criticising them for getting the assessment wrong, is in our view neither helpful nor professional.

NSW Police say:

If you need police, fire or ambulance in an emergency call Triple Zero (000). Always call Triple Zero (000) in situations where a life is in danger, a crime is taking place, or in time critical situations.

It would appear that no-one believed a life was in danger or that it was a time critical situation.  And if it’s not time critical people are encouraged to ring the Police Assistance Line (131444).

There is an obligation to report motor vehicle accidents to police (Motor Accidents Act 1988 (NSW) s 42) but that’s not an obligation upon the driver but on the person who may be injured and seeks to make a compensation claim.  There is also a duty to provide particulars to police in some circumstances, including where a person is killed or injured (Road Rules 2014 (NSW) r 287). It does mean that if this had been a vehicle accident, rather than a balloon accident, then there would have been an obligation to report it to police but no obligation to call triple zero.

One might think there was some crime with respect to the operation of the balloon but even if that’s true, there is no obligation upon a person to ring triple zero to report that they may have committed a crime. And even reporting a crime should go through the Police Assistance line unless it’s ‘time critical’.

Negligence law

On the Facebook version of this blog, where I first posted a link to this story, one commentator wrote ‘I can’t believe they failed their duty of care like that’.  It may be the case that the failure to ring triple zero and arrange ambulance response was a breach of a duty of care but we can’t say that with certainty.  It rather depends on the situation as observed by the people there and the pilot.  The assessment that the injuries were not life threatening and that the resources of an ambulance was not required may have been reasonable, even if wrong.

Work Health and Safety Act 2011 (NSW)

I assume that the pilot was an employee, and this was therefore a workplace.  My aim here is to consider whether there was any legal obligation on the pilot to call triple zero rather than resolve every legal issue so I’m going to assume, without further discussion, that even though this was an aviation accident the Work Health and Safety Act 2011 (NSW) continues to apply.

Under the Work Health and Safety Act 2011 an event that causes a serious injury (which includes treatment for a spinal injury; Work Health and Safety Act 2011 (NSW) s 36) or a dangerous incident (which includes ‘the fall or release from a height of any plant, substance or thing (s 37) is a ‘notifiable incident’ (s 35).  The person conducting a business or undertaking must report a notifiable incident ‘immediately after becoming aware that a notifiable incident … has occurred’.  That duty may have imposed a duty on the balloon operator to notify SafeWork NSW but that is not the same as a duty to ring triple zero.

Further, s 39 says:

The person with management or control of a workplace at which a notifiable incident has occurred must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs.

It may well be therefore that an offence was committed by removing the balloon before a SafeWork inspector arrived, but again that is not the same as a duty to ring triple zero.

Under the Work Health and Safety Regulation 2017 (NSW) r 43 there is a duty to prepare, maintain and implement an emergency plan.  Emergency procedures are required to provide for

(i) an effective response to an emergency, and …

(iii) notifying emergency service organisations at the earliest opportunity, and

(iv) medical treatment and assistance, and …

Further ‘A person conducting a business or undertaking at a workplace must implement the emergency plan for the workplace in the event of an emergency’ (r 43(4)).

We don’t know, from the story, what the company’s emergency plan was or how they defined emergency.  It may be, however, that if the plan provided that, in these circumstances, the appropriate response was to call triple zero then there may have been an offence if they balloon pilot failed to implement the plan or if the balloon company didn’t have an adequate plan.

Transport Safety Investigation Act 2003 (Cth)

Under this legislation an accident involving a civil aircraft (‘VH’ registration) that causes ‘serious injury to: … (i)  a person on board the aircraft…’ is an immediately reportable event (Transport Safety Investigation Act 2003 (Cth) ss 3 and 18; Transport Safety Investigation Regulations 2003 (Cth) r 2.3).  As a result the pilot (and others associated with the balloon company; see Transport Safety Investigation Regulations 2003 (Cth) r 2.5 definition of ‘responsible person’) may have had an obligation to report the accident to the Australian Transport Safety Bureau (the ATSB) by telephone ‘as soon as is reasonably practicable…’ (Transport Safety Investigation Act 2003 (Cth) s 18 and Transport Safety Investigation Regulations 2003 (Cth) r 5.4) and with a full written report within 72 hours (s 19).

Even if there was an obligation to report this event to the ATSB but again that does not equate to an obligation to ring triple zero.

Conclusion

The stimulus for this question was the quote attributed to Inspector Rob Post, from Hunter Valley Police.

“He said police were not looking to lay any criminal charges in relation to the company’s failure to report the crash.”

The question I set out to answer was ‘Was there an obligation to call triple zero to report the crash?’  If the answer is ‘no’ then of course police can’t lay any criminal charges and it did beg the question of is there an obligation to call the emergency services?  (And let’s be clear, I’m not addressing whether the failure to call triple zero was a good idea, just whether it was unlawful).

It may be that it was negligent not to call for ambulance assistance but we don’t have enough information to draw any conclusion on that point.  Civil negligence is not a matter for the police or ‘charges’.

The clearest obligation to report an accident to police relates to motor vehicles.  Most (but not all) aircraft accidents must be reported to and primarily investigated by the ATSB.  The obligation to ring triple zero, if there was one, may arise under the Work Health and Safety Act 2011 (NSW).

What follows is that there is no obvious legal obligation to ring triple zero, even if like Inspector Post, you ‘would have expected them to call triple-0’.  An expectation does not give rise to a legal obligation.

Categories: Researchers

Legal authority for police to enter a burning house – is it required?

Michael Eburn: Australian Emergency Law - 25 March, 2018 - 19:29

Today’s question relates to police as rescuers.  My correspondent says:

Police in NSW routinely respond to structure fires under lights and siren, often arriving before the fire service. When they do arrive, they often take action that, although well-meaning, can be very detrimental to the operations of the fire service. For example, there are numerous cases of police kicking in doors or breaking windows of houses with the intent of effecting rescue, however this type of uncontrolled ventilation can cause a catastrophic worsening of the fire situation inside the building. These actions are carried out without training, experience or protective clothing and can create a whole new level of complication for fire officers trying to manage the fire.

When questioned about this, police cite a section of the Police Act that empowers them to “protect life and property”.

Considering the risk to the occupants, subsequently arriving firefighters and the police officers themselves, and the fact that these incidents are occurring after a deliberate emergency response (a hazardous activity in itself), can reckless action be justified by a section in an Act of Parliament and do you think that this scenario is a reasonable application of the section cited?

No doubt the relevant section that they have in mind is section 6(2) of the Police Act 1990 (NSW). That section says “The NSW Police Force has the following functions: (a) to provide police services for New South Wales …”  Police services includes ‘the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way’ (s 6(3)).  I don’t think that section authorises any particular action.

But in this context so what? Who needs legal authority to enter a house to try and rescue someone in need?  The answer is ‘no-one’, I could do it, anyone could do it.  If legal authority is required, it’s not the Police Act but necessity.  In New Zealand, Tipping J said in Dehn v Attorney General [1988] 2 NZLR 564 (at p. 580):

A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm.

In the Kuru v State of New South Wales (2008) 236 CLR 1 Gleeson CJ, Gummow, Kirby And Hayne JJ said (at [40]):

The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire fighters, police and ambulance officers will often invoke application of that principle.

If the actions of the police are dangerous and not helpful, then the answer lies in taking it up with the Local Emergency Management Committee or getting FRNSW command to raise issues of training with the police.  The law is not the issue. Anyone, police or anyone else, can kick in the door to try and rescue someone from a burning building if they choose to do so.

Categories: Researchers

Will the law value the decisions of paid staff over volunteers?

Michael Eburn: Australian Emergency Law - 24 March, 2018 - 15:36

Today’s question raises a scenario that’s hard to imagine, and has some misunderstanding, but the substance of the question is ‘regardless of the roles, will FRNSW be held responsible for decisions on the fire ground because their fire fighters are paid, and NSWRFS firefighters are not?’   Put that way the answer is ‘no’.  But let me turn to the question asked:

FRNSW turn up at a job within RFS area – RFS are the incident controller as it is their area- they say what happens and how to do, FRNSW then must do as requested by incident controller (RFS volunteer) and it results in the direction causing a death. Is the NSWFR, as paid professionals then liable for litigation as in the eyes of the law they are the professionals and should have known better.

And what would happen if the NSWFR officers refused to follow the direction as they feel it is not in the best interest of the situation, what action can or would be taken against them?

The first error is the assumption that the Incident Controller (IC) can not only direct FRNSW as to their task but also how to perform it.  AIIMS recognises a difference between command and control. The IC is in ‘control’ of the response so he or she may ‘task’ FRNSW but FRNSW remain in ‘command’ of their own troops and their own actions.  So, if FRNSW are asked to fight the fire burning in area A, it will be up to FRNSW to determine how they meet the controller’s objective.

In that light I simply can’t imagine a situation where a death, or any adverse outcome, can be solely attributed to a direction from the incident controller.  Taking the situation where FRNSW is asked to fight the fire burning in area A, how can that decision lead to a death? And a death of a bystander? A firefighter? Even if the decision means that property in area B is not protected it can’t be said that the decision ‘caused’ the death, the fire did.  So as noted at the start, the question itself is problematic.

What we can say is that people, and agencies, will be held responsible for the decisions and actions they are responsible for.  The IC, and in this context the RFS, will be responsible for the decisions made as IC.  The FRNSW firefighter will be responsible for the decisions they make.  If the question is ‘should FRNSW have been assigned to area A or area B?’ then that is a question to be asked of the IC.  If the question is ‘why did FRNSW do A instead of B?’ then that is a question for the FRNSW commander.

The courts, will in no way, say that FRNSW firefighters are responsible for overseeing, second guessing or somehow responsible for decisions that government policy implemented through legislation and then delegated decision making (so reflected in disaster plans, the adoption of AIIMS etc) has assigned to someone else. But of course if anyone perceives the IC has made an error, made a decision with incorrect information or assumptions, or hasn’t considered an appropriate alternative, that should be brought to the ICs attention.

But, as I said I infer the true question is ‘‘regardless of the roles, will FRNSW be held responsible for decisions on the fire ground because their fire fighters are paid, and NSWRFS firefighters are not?’   And the answer to that question is a categorical ‘no’.

As for the second question:

And what would happen if the FRNSW officers refused to follow the direction as they feel it is not in the best interest of the situation, what action can or would be taken against them?

If the FRNSW officers are tasked with a job but determine that they are not going to do it because it’s too dangerous, they need to communicate back to the IC.  Equally if they determine that another option would be better they also need to communicate with the IC.  Everyone has responsibilities so in context for example the FRNSW have responsibilities to do their own risk assessment as does the IC but the IC may not have the information that the crew on the ground have.  So there has to be communication.

As for a crew who simply decide to ignore the IC then the whole concept of a controlled response to the fire disappears. Instead of a coordinated response there becomes as many responses as there are crews on the ground. In that situation the management is really up to the commanders and ultimately the chief officers of the services involved. If the failure of the brigade to follow the ICs directions can actually be demonstrated to have caused loss or damage and someone seeks compensation (putting aside all the difficulties that would face) then liability would fall to their agency (in the context of this question, FRNSW).

Conclusion

As noted, the question asked didn’t really make sense but the substance of the question is ‘regardless of the roles, will FRNSW be held responsible for decisions on the fire ground because their fire fighters are paid, and NSWRFS firefighters are not?’   The answer to that question is ‘no’.

Categories: Researchers

Leaking government information and the Tathra fire controversy

Michael Eburn: Australian Emergency Law - 24 March, 2018 - 12:01

Today’s question flows on from the disputes about the response to the Tathra bushfires.  My correspondent:

… noticed an article in the Daily Telegraph on 19th or 20th March 2018, where it was claimed that the NSW RFS refused assistance from FRNSW, they had a picture of the FR Call Centre log with the operator’s generic response highlighted when assistance is not required after they have asked.

My question is, would this not have to be obtained through a Freedom of Information request by the reporter or if it wasn’t and it was illegally leaked by a FR staff member, what would the consequence be for both the Telegraph or FRNSW, who I assume would have the responsibility for the procedures for private and confidential information security or using illegal information in their publication?

Since then they have also released voice recording of the calls made between RFS Duty officers and FR Call Centre operators which I again assume breaches other legislation as I don’t believe a staff member or agency would have given their permission to use the recordings. Who would be responsible for a matter such as this given the amount or media it has caused while using illegally obtained information?

The Daily Telegraph articles are generally behind a paywall so I can’t find the exact article.  In another article (Eryk Bagshaw ‘Rural Fire Service slams Tathra bushfire leak as ‘disgusting and disgraceful’Illawarra Mercury (Online) March 20 2018) says the call logs were ‘leaked’ rather than released under any application under the Government Information (Public Access) Act 2009 (NSW) (which replaces Freedom of Information legislation).  Let us assume, for the sake of the argument, that the material was leaked by a member of FRNSW staff.

Under the Fire Brigades Regulation 2014 (NSW) cl 22:

A firefighter must not disclose any information obtained in the firefighter’s capacity as a firefighter unless the disclosure is made:

(a) in the exercise of the firefighter’s functions, or

(b) about factual matters that are generally available to the public, or

(c) by an approved firefighter to media representatives concerning operations at a fire or other incident, or

(d) at the direction or with the permission of the Commissioner, or

(e) with other lawful excuse.

Let us also assume, for the sake of the argument, that the release of the information is a breach of r 22.   A breach of s 22 is not a criminal offence, but may subject the firefighter to disciplinary action (r 13).  A firefighter, as a government employee, may also be subject to obligations of confidentiality under the Government Sector Employment Act 2013 (NSW) and The Code of Ethics and Conduct for NSW government sector employees.  Let us further assume that the release of the information is a criminal offence.

The journalist

What follows from those assumptions is that the journalist has received information about a government agency (but not private information about an individual) that has been provided to him or her illegally.  What are the consequences of the Telegraph in publishing that material?  The answers are ‘none’.

The argument of journalists, and institutions like Wikileaks is that there is no offence in publishing this material even if the person who provides it commits an offence in leaking it.  The freedom of the press to publish material is essential for open government.  Consider the actions recently of the ABC that published details of cabinet documents that were found in a filing cabinet that was sold by a second hand furniture store in Canberra.  The ABC program, ‘Behind the News’, reported

Mr X took the files to the ABC, who read through them and broke some big stories, including the Australian Federal Police losing national security files, laws that were being debated behind closed doors, and important documents at Parliament House ending up in the wrong hands.

But the ABC decided some of the other files were too sensitive to tell us about. In fact, they were so top secret that ASIO, Australia’s National Security Agency delivered a safe to the ABC offices so the files could be protected. The release of these Cabinet Files has come at an interesting time, because there are new laws currently being proposed that could make this kind of reporting illegal. The proposal, by PM Malcolm Turnbull, is aimed at cracking down on foreign spies, but some journalists and lawyers say that could extend to the media too. They argue the journalists who published the Cabinet Files could’ve faced jail time if those laws were in force now.

After some serious negotiating, the files were eventually given back to their original owner, the Department of the Prime Minister and Cabinet.

There was no offence committed by the ABC in publishing the material.  Even if the changes discussed in that article, contained in the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 (Cth) are passed, it will be a defence (cl 122.5(6)):

… to a prosecution for an offence by a person … relating to the dealing with or holding of information that the person dealt with or held the information:

  • in the public interest (see subsection (7)); and
  • in the person’s capacity as a journalist engaged in fair and accurate reporting

The point of that discussion is not to say that these laws apply to this leak but to demonstrate that journalists are not prohibited from publishing confidential information that is leaked to them. That is considered a legitimate journalistic exercise and that is recognised by the Commonwealth that intends to retain that principle even in the attempt to tighten up information security laws.  There can be civil remedies for publication of confidential information ranging from an order for an injunction to stop the publication, actions for defamation and the like. The critical determination requires a balance between the public interest in knowing the information and a private interest in retaining the confidence (see Kathryn Ries, ‘Confidential Information and the Media’ (1999) 15 Queensland University of Technology Law Journal 126).  We don’t need to update that article and its references because we can see there is public interest in the discussion on the response to the Tathra fires, and the call log and audio recordings are not private and confidential information about a person. This sort of material would be released under the Government Information (Public Access) Act 2009 (NSW). So even if it has been released improperly, it would be public information in the event of the correct application, so we can infer, or perhaps assume, that the public interest in not disclosing it is low which creates an equally low threshold for a public interest in publishing it.

FRNSW

As for FRNSW there can’t be any implications either.  As the holder of personal or private information FRNSW, as with any government agency, will have obligations to secure that information and there may be implications if that information is not properly secured.

However, the information of a call log and the audio recording of the conversations would not be private information within the meaning of the Privacy and Personal Information Protection Act 1998 (NSW).  The information is information owned and about FRNSW.  Issues of the staff member’s consent to the use of the recording is irrelevant. If FRNSW wants to release recordings of its radio or telephone transmissions it doesn’t need the approval of each staff member.  It also means that if the information is illegally leaked FRNSW may have rights against the staff member who leaked it (Fire Brigades Regulation 2014 (NSW) cll 13 and 22) and could in some circumstances (but I suggest not these circumstances) have a remedy against the journalist or the paper (see again Kathryn Ries, ‘Confidential Information and the Media’ (1999) 15 Queensland University of Technology Law Journal 126).

Conclusion

The question implied a belief, not uncommon, that the law protects much more than it does.  Journalists regularly publish material that governments, corporations and individuals would prefer was not made public.  They do that in part to sell papers but also because it’s a fundamental role of a free press to hold governments, corporations and individuals to account. There may be remedies where the publication is simply for titillation or gossip but where there is a public interest in the publication that is not only permitted it is endorsed, even by government.

In the circumstances of the Tathra fire and the release of information from FRNSW there may be implications for the staff member that leaked the material, but there would be no legal implications for the journalist or the Daily Telegraph for publishing it or for FRNSW.

Categories: Researchers