Subscribe to Michael Eburn: Australian Emergency Law feed Michael Eburn: Australian Emergency Law
Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
Updated: 10 hours 26 min ago

The doctrine of necessity – Explained

31 January, 2017 - 05:12

I’ve written two ‘omnibus’ posts to review some key legal issues.

In response to the post on driving and rule 306, a correspondent wrote ‘Would you consider a general post about Necessity?’  I’m happy to do that but note that much of the text below does appear in earlier posts and in my book Emergency Law (4th ed, 2013).

Necessity is a common-law doctrine (that is it has been developed by the judges on a case by case basis) rather than the subject of legislation.  The gist of necessity is that where a person is caught on a dilemma of obeying the law and allowing some harm to occur, or to befall them, they can be excused from obeying the law.    The problem with a doctrine put as boldly as that, is that it is a licence for everyone to be judge in their own cause and to decide for themselves if the circumstances warrant disobeying the law.     That cannot be the law so the judges have developed tests as to when ‘necessity’ will apply, usually captured by that difficult concept of ‘reasonable’, to which there is added a concept of ‘proportional’.

Necessity is a defence to both the criminal law and the civil law, that is, if an action was ‘necessary’ to prevent a greater harm, that can be used to avoid both criminal charges and civil actions for negligence.  That can be seen to be relevant in context of this blog.  If necessity applies it can be a defence to criminal charges that might arise if you were to cut the roof off someone’s car, or touch them without consent.  It can also be a defence to a claim for damages arising out of the same conduct.

We can then look at the tests for necessity.

Criminal law

The starting point for most cases appears to be Stephen’s Digest of the Criminal Law (1st ed, 1887).   He said:

An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained.

In R v Davidson [1969] VR 667 Menhennit J said ‘The principle of necessity as stated by Stephen contains within it the two elements of necessity and proportion’.   The accused has to believe, upon reasonable grounds, that it is necessary to take the action and that the harm done is not disproportionate to the harm to be avoided.

In R v Loughnan [1981] VicRp 43 Young, CJ and King, J said:

It will be seen from the statement by Sir James Fitzjames Stephen that there are three elements involved in the defence of necessity. First, the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect… The other two elements involved … can for convenience be given the labels, immediate peril and proportion…

In R v Dudley v Stephens (1884) 14 QBD 273 it was said that ‘necessity’ could not be a defence to murder.  In that case the accused was shipwrecked and along with his ship mates they drew straws whilst on the lifeboat.  The loser was killed and eaten. When the survivors were rescued they had survived because of they had eaten their shipmate but the fact that their death was otherwise imminent was no defence.

Even that rule has been doubted.  In Re A (Conjoined Twins) [2000] EWCA Civ 254 doctors and judges were faced with a dilemma.  Ward LJ described the facts:

Jodie and Mary are conjoined twins. They each have their own brain, heart and lungs and other vital organs and they each have arms and legs. They are joined at the lower abdomen. Whilst not underplaying the surgical complexities, they can be successfully separated. But the operation will kill the weaker twin, Mary. That is because her lungs and heart are too deficient to oxygenate and pump blood through her body. Had she been born a singleton, she would not have been viable and resuscitation would have been abandoned. She would have died shortly after her birth. She is alive only because a common artery enables her sister, who is stronger, to circulate life sustaining oxygenated blood for both of them. Separation would require the clamping and then the severing of that common artery. Within minutes of doing so Mary will die. Yet if the operation does not take place, both will die within three to six months, or perhaps a little longer, because Jodie’s heart will eventually fail.

The court authorised the surgery with the sure and certain knowledge that Mary would die and her death would be sooner than it would be without the operation.  The doctrine of necessity allowed that action in circumstances where the death of Mary would save Jodie but there was no sense of choice.  Whether the surgery went ahead or not, Mary would shortly die.  Without the surgery, Jodie would also die, with it she had good prospects.  This is not a situation like R v Dudley and Stephens where the person to die could have been anyone, and a person is not entitled to put their lives above others, that is no-one’s life in the life boat was more important than anyone else’s.  But where one person is fated to die regardless, hastening that person’s death to save others may be justified.  The court gave some examples. Brooke LJ said:

At the coroner’s inquest conducted in October 1987 into the Zeebrugge disaster, an army corporal gave evidence that he and dozens of other people were near the foot of a rope ladder. They were all in the water and in danger of drowning. Their route to safety, however, was blocked for at least ten minutes by a young man who was petrified by cold or fear (or both) and was unable to move up or down. Eventually the corporal gave instructions that the man should be pushed off the ladder, and he was never seen again. The corporal and many others were then able to climb up the ladder to safety.

In his third lecture, “Necessity and Duress”, Professor Smith evinced the belief at pp 77-78 that if such a case ever did come to court it would not be too difficult for a judge to distinguish R. v Dudley and Stephens. He gave two reasons for this belief. The first was that there was no question of choosing who had to die (the problem which Lord Coleridge had found unanswerable in R. v Dudley and Stephens at p 287) because the unfortunate young man on the ladder had chosen himself by his immobility there.

Robert Walker LJ said:

Of the many real and imagined examples put before the court it is worth mentioning two incidents which really did happen, although neither was the subject of a court decision. One is the awful dilemma which faced the commander of an Australian warship, in peacetime, when a very serious fire occurred in the engineroom. He ordered the engine room to be sealed off and flooded with inert gas, in order to save the ship and the rest of the crew, although the order meant certain death for anyone who was still alive in the engineroom. The other is the equally awful dilemma of a mountaineer, Simon Yates, who held his fellow-climber, Joe Simpson, after he had slipped and was dangling on a rope over a precipice at 19,000 feet in the Andes. Yates held Simpson for an hour, unable to recover him and becoming increasingly exhausted. Yates then cut the rope. Almost miraculously Simpson landed on a snowy ice bridge 100 feet below, and survived. When they met again Simpson said to Yates, “You did right”. This incident is mentioned in Professor Smith’s 1989 Hamlyn Lectures, Justification and Excuse in the Criminal Law, p.79.

At the end of Brooke LJ’s long and detailed judgment, His Honour referred again to Stephen’s text and said:

According to Sir James Stephen, there are three necessary requirements for the application of the doctrine of necessity:

(i) the act is needed to avoid inevitable and irreparable evil;

(ii) no more should be done than is reasonably necessary for the purpose to be achieved;

(iii) the evil inflicted must not be disproportionate to the evil avoided.

The point of this (from an academic point of view) simplified discussion of the principle is to show that it is a principle of law and can be applied to all offences, up to and including deliberate killing.   And although it is impossible to set out with certainty when it applies, the principles from 1887 remain the guide.

Discussion

What does this have to do with the emergency services who do not go around deliberately killing people?  The point of mentioning in Re A is not that the emergency services have such terrible choices (but like the captain of the ship mentioned by Robert Walker LJ they may do) but to confirm that the principle is part of the common law of England and, I suggest, Australia.

And the principles will be relevant.  This often arises in the context of getting children out of locked cars – see Getting Children Out Of Locked Cars (February 23, 2016).  You can see the application.  A child is in a car in 40 degree heat.  Getting the child out is required to ‘avoid inevitable and irreparable evil’ ie the death or permanent injury of the child.  ‘No more should be done than is reasonably necessary for the purpose to be achieved’ which presumably involves breaking a window and unlocking the door, unless the road service organisation are there and can unlock the car.   And damaging the car is not disproportionate to the harm averted.    In that case, there’s a defence even though, prima facie, deliberately breaking someone’s car window is an offence.

For those in rescue squads you should realise that this is the same rule that allows you to cut the roof off the car that’s wrapped around the tree.  The driver isn’t consenting and you’re not allowed to just cut the roof off someone’s car, but if you do it to allow access to save their life all, of those principles again apply. If a child’s locked in a hot car, they need rescue as much as someone trapped in a mangled wreck.

Necessity might also be a defence to blocking a road.  It may be an offence to obstruct traffic but putting your car across the road and telling people that the road’s washed away, or blocked by an accident or fire because such an action is necessary to stop the next driver suffering harm, and the ‘harm’ done (obstructing traffic) is not disproportionate to the harm averted (stopping the driver going off a cliff or whatever).

So necessity is, in the right circumstances, a defence to a crime.

Tort

It is also a defence to a civil claim for damages.   Again it must be shown that there was a real and imminent danger and that the conduct of the defendant was such that “any reasonable man would, in the circumstances of the case, have concluded that there was no alternative to the act of trespass if the property [or life] endangered was to be preserved” (Cresswell v Sirl [1948] 1 KB 241, 247.

The doctrine can be traced back to Maleverer v Spinke (1538) 73 ER 79, 81 where the court said:

Yet we will well agree that in some cases a man may justify the commission of a tort, that is in cases where it sounds for the public good … a man may justify pulling down a house on fire for the safety of the neighbouring houses …

The doctrine of necessity can apply where the defendant reasonably believes that some action is necessary even if it turns out later that it was not. In Cope v Sharpe (No 2) [1912] 1 KB 496 the defendant was not liable for setting fire breaks that were not, as it turned out, necessary to control a fire that was extinguished by others before it got to the breaks.

In Proudman v Allan [1954] SASR 336, the South Australian Supreme Court summed up the application of the principle in cases where a person was taking action to save another’s property and in fact did more damage than would have happened if he hadn’t tried at all. It was said (at p 340):

In principle, there seems no reason why the common law should not recognise an exemption from liability to pay damages for trespass to goods of “volunteers” or strangers who, from no other motive than the same desire to save the property of others from damage or destruction as they would feel if it were their own property which was in jeopardy, take reasonable steps on an occasion of urgent necessity to remove that property out of the way of danger or safeguard it by some other means. It would seem that in principle the present respondent should not be absolutely liable for damage caused by his interference with the property of another when he acted in the reasonable belief that his interference was justified by the necessity of the situation and was intended to benefit the owner.

When the damage to property is necessary to save life, greater damage may be done that would be justified “to prevent mere damage to property” (Watt v Hertfordshire County Council [1954] 2 All ER 368; See also Rigby v Chief Constable [1985] 2 All ER 985, 994).

The safety of human lives belongs to a different scale of values from the safety of property. The two are beyond comparison and the necessity for saving life has at all times been considered a proper ground for inflicting such damage as may be necessary upon another’s property. (Southport Corporation v Esso Petroleum Co Ltd [1956] AC 218, 228).

In New Zealand it was said in Dehn v Attorney General [1988] 2 NZLR 564, 580 (Tipping J):

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 2008 the High Court of Australia (Kuru v State of New South Wales (2008) 236 CLR 1, [2008] HCA 26, [40] (Gleeson CJ, Gummow, Kirby And Hayne JJ) said:

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.

Necessity will justify almost any property damage in order to save life. The cutting up of the car, the entry onto property and the destruction of property can all be justified where that conduct is necessary to save another’s life. The doctrine is not limited to professional rescuers. A person visiting their neighbour who sees that they are lying injured on the floor is as justified in breaking the door in order to render assistance as is the local ambulance or fire service.

The law still requires that any action taken under the doctrine must be reasonable, so that if the rescuer acts in a way that is not reasonable in the circumstances, they may be liable in negligence (Beckingham v Port Jackson and Manly Steamship Co (1957) SR(NSW) 403).  This principle is subject to the rule that in deciding what was or was not reasonable, the courts, given the agony of the moment, are willing to excuse conduct that would be considered negligent in less urgent circumstances, particularly when life (rather than mere property) is involved.  The “agony of the moment” rule says that courts must take into account that where a person has found themselves in a situation not of their making and where immediate action is required, then the person’s conduct is not to be judged as negligent because, in retrospect, it appears that another course of action would have been better (Leishman v Thomas (1958) 75 WN(NSW) 173, 175):

[A] man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called “agony of the moment”, he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise.

A rescuer, “acting under the pressure of emergency, is to be judged leniently as to the reasonableness of his conduct” (Wallis v Town of Albany (1989) Aust Torts Reports ¶80-283, [69,011] (Pidgeon J); Wagner v International Railway Co 133 NE 437 (1921), 437-38 (Cardozo J)).

Necessity and medical treatment

This issue arose in In Re F [1990] 2 AC 1.  In that case the court had to consider whether doctors could lawfully sterilise a developmentally disabled adult.  Her parents wanted the procedure so that she did not have to deal with menstruation and the risk of pregnancy.  F was not competent to give consent and because of vagaries of the English law at that time, her parents could not give lawful consent.  The question was what doctrine could justify such a procedure.

Lord Goff again turned to necessity. The notion of ‘implied consent’ could not justify the action as you could not have implied consent from a person from who you could not get actual consent.    He said:

The basic requirements, applicable in these cases of necessity, that, to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

As Lord Goff said ‘The principle is one of necessity, not of emergency’.  He gave these examples:

Take the example of a railway accident, in which injured passengers are trapped in the wreckage. It is this principle which may render lawful the actions of other citizens – railway staff, passengers or outsiders – who rush to give aid and comfort to the victims: the surgeon who amputates the limb of an unconscious passenger to free him from the wreckage; the ambulance man who conveys him to hospital; the doctors and nurses who treat him and care for him while he is still unconscious. Take the example of an elderly person who suffers  a stroke which renders him incapable of speech or movement. It is by virtue of this principle that the doctor who treats him, the nurse who cares for him, even the relative or friend or neighbour who comes in to look after him, will commit no wrong when he or she touches his body.

The two examples I have given illustrate, in the one case, an emergency, and in the other, a permanent or semi-permanent state of affairs. Another example of the latter kind is that of a mentally disordered person who is disabled from giving consent. I can see no good reason why the principle of necessity should not be applicable in his case as it is in the case of the victim of a stroke. Furthermore, in the case of a mentally disordered person, as in the case of a stroke victim, the permanent state of affairs calls for a wider range of care than may be requisite in an emergency which arises from accidental injury.

Discussion

Necessity is a general and ill-defined doctrine.  It must be ‘ill-defined’ because the circumstances in which it may be applied are undefined.  But the doctrine does exist.  Where a person, whether a professional rescuer or not, believes and has some reason to believe that action is required to avoid an irreparable and grievous harm, they are justified in taking the action that they believe is necessary if they do no more than is required to achieve their objective and the harm done (which may be no more than to technically breach the law) is not disproportionate to the harm to be avoided.

You can see the doctrine’s relevance to the emergency services.  Breaking into a house or car to rescue someone is the example given by the High Court and the New Zealand court.  Providing care to those that cannot consent, the unconscious, children, the mentally ill or disabled etc are all things that the community at large, and the emergency services are called upon to do.   These things rarely get before a court but when they do it is the doctrine of ‘necessity’ that provides a general and broadly applicable doctrine to justify taking action to save a life or prevent harm.

The policy of the law, that when life is at stake it’s better to do something than nothing, is also behind my conclusion that if you have life saving skills you should use them, regardless of what uniform you are in.  It is also reflected in the good Samaritan legislation that was written to encourage people to act.


Categories: Researchers

Suspension from the CFA pending disciplinary action

28 January, 2017 - 21:43

This question comes from a volunteer with Victoria’s CFA.  My correspondent tells me:

I’m a CFA volunteer and I’m currently suspended by the Chief Officer pending cancellation of my membership. I’ve not been charged or been provided with any complaint against me as is required under CFA regulations and dispute resolution; however, I’ve been suspended since November 2016. I believe this contravenes r44 and subsequent regulations of S.R. No. 165/2014. Any advice would be appreciated.

Suspension of members of the CFA is dealt with by the Country Fire Authority Regulations 2014 (Vic) r 47.  This regulation anticipates that a member may be suspended pending both an investigation and final resolution of the allegation.  The regulation says:

(1) At any time before the Chief Officer has caused an investigation to be conducted under regulation 46(1), the Chief Officer or an officer of the Authority nominated by the Chief Officer for the purpose may suspend the member from the member’s brigade until the investigation report concerning the member has been given under regulation 46(2).

(2) At any time after the Chief Officer has caused an investigation to be conducted under regulation 46(1), an officer of the Authority nominated by the Chief Officer for the purpose may suspend the member from the member’s brigade until—

(a) the time for the laying of a charge under regulation 48(2) has expired; or

(b) if a charge is laid, the charge has been dismissed or found proven in accordance with regulation 49(3); or

(c) if an appeal has been made to the Appeal Panel, the chairperson of the Authority has given the appellant written notice of the Appeal Panel’s determination.

Under regulation 46(1) the Chief Officer may appoint someone to conduct an investigation and that investigation must be completed by the investigation ‘as soon as practicable after commencing an investigation’ (r 46(2)).  That is a very vague time frame and note that the time doesn’t ‘run’ until after the investigation is commenced, not from the time the member is suspended.  Regulation 46 sets no time limit to say when an investigation must be commenced if a member has been suspended.   So prima facie, the Chief Officer could suspend a member under r 47 but then wait some significant time before directing an investigation to be commenced under r 46.

Once a written report of an investigation has been received, the member must be charged within 30 days, or not more than 60 days if the Chief Officer so determines (r 48).

My correspondent has been suspended since November 2016.  I do not know if the Chief Officer has instigated an investigation under r 46.  If he has, that investigation must be completed ‘as soon as practicable’. There is then 30 days (or up to 60 days) before a charge must be laid.    Given that it’s now the end of January 2017 one might think that the fact that no charge has yet been laid is, of itself, not contrary to the regulations.  Given that between November and January there has been the Christmas and New Year break, it might be reasonable that no investigation has been completed and even if it has, the time frame for laying a charge won’t have passed.

The bigger issue is if the suspension has been put in place but no further action has been taken, eg no investigation commenced, because in those circumstances the members position can remain uncertain and in effect subject to punishment (suspension) without due process.  The point of allowing suspension pending investigation is to protect the community and the CFA but not to allow the Chief Officer to impose a punishment by, for example, suspending a member without due process and thereby in effect dismiss them from the CFA without regard to the rules on disciplinary hearings.

The crucial question then is what has been happening since November.  If the Chief Officer has appointed an investigator and the investigator is attending to his or her duties with due diligence, the current time frame is probably unobjectionable.  If nothing has happened one would infer that some ulterior motive is being pursued.

What’s the remedy?   To determine the matter would require access to documents and internal records.  If my correspondent is aware that an investigation is in place, eg he or she may have been advised who the investigating officer is, they may have been interviewed and know other people who have been etc, then one might think the process is under way. If on the other hand there is no evidence that an investigation has been commenced it would be appropriate to seek independent legal advice (not from a public blog/commentary) but from a solicitor who can take the matter up with the Chief Officer.  An alternative source of support may be the VFBV but I don’t know if they get involved in these sorts of quasi-industrial issues.


Categories: Researchers

Driving, r 306 and previous posts – explained

24 January, 2017 - 21:48

Usually on this blog I answer questions or discuss legal developments (cases or new legislation) that come to my attention. That means the discussion is about the issue at hand.  Following discussion on advanced first aid skills I wrote a more generic post, a more ‘helicopter view’ of the issues as I saw them.  That seemed to go down well so I’m now going to do the same thing with respect to the road rules.  To make sure this is generic I’ll refer to the Australian Road Rules as published by the National Transport Commission (Australian Road Rules 2012, as amended to November 2015).  As the Commission says, the Road Rules

…  form the basis of Road Rules of each Australian state and territory. Each state and territory has mostly copied the Rules into their own laws, however, not every provision has been copied exactly in each.

By referencing the model document I’m not referring to the law in any particular state.

We know the relevant road rules for this discussion are rules 78, 79 and 306.  They say:

78 Keeping clear of police and emergency vehicles

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

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

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

79 Giving way to police and emergency vehicles

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

Note 2 For this rule, give way means: (a) if the driver is stopped — remain stationary until it is safe to proceed; or (b) in any other case — slow down and, if necessary, stop to avoid a collision;…

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

306 Exemption for drivers of emergency vehicles

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

(a) in the circumstances:

(i) the driver is taking reasonable care; and

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

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

Rule 305 provides a similar exemption for the drivers of a police vehicle.  Rule 307 provides for exemptions from parking restrictions for police and emergency vehicles.   Rule 300(1)(b) provides that the rule against using a mobile phone whilst ‘not parked’ does not apply to the driver of an emergency or police vehicle.

Let us assume that there is an accident between a responding appliance and another vehicle.  The question people want to answer is ‘who is at fault?’.  The answer to that question does not depend simply on those rules above.  We can use as an example the video that’s been doing the rounds on Facebook of a NSW Police car involved in a minor collision – see  https://www.facebook.com/DashCamOwnersAustralia/videos/1308226399236997/.

Fault – criminal law

With respect to criminal law, the issue is not ‘who is at fault?’ but ‘has anyone committed an offence?’   It may be that both drivers are guilty of an offence or neither are.  It’s not a binary choice – it’s one or the other.

The driver of the police car has the warning beacons activated (or at least let’s assume that is the case).  The rule says that in the right circumstances the police driver commits no offence for failing to stop at the stop line and waiting for the red light that is facing him or her to turn green (Australian Road Rules rr 56 (Stopping for a red traffic light or arrow) and 305 (Exemption for drivers of police vehicles)).    But the police driver isn’t exempt those parts of the traffic laws that are not contained in the Australian Road Rules, given this was in NSW, the Road Transport Act 2013 (NSW) s 117 (“A person must not drive a motor vehicle on a road negligently”).  To drive ‘negligently’ means to drive without due care and attention.

The video shows that the driver slowed, waited etc so we can argue whether he or she was driving without due care and attention.  The more general point to make is that even if you have right of way, it doesn’t mean you can go.  Let’s take a more ‘pedestrian’ example – if you are driving along facing a green light and there are pedestrians walking across a crossing, you can’t run into them and argue it’s their fault as you had ‘right of way’.   Even when you have right of way you have to assume others will not honour that and you have to be prepared to avoid the accident.

In Hine v O’Conner [1951] SASR Abbott J said (at pp 4-5):

He [the bus driver] was not, however, entitled to consider himself as having “an open road” across that intersection because a “Stop Sign” is not always obeyed by drivers of vehicles; and, as he admitted in cross-examination, he has himself had the experience of other drivers disobeying such signs … Despite the existence of a “Stop Sign” at an intersection, it may become the duty of a reasonable driver in O’Connor’s situation to “give way” to another vehicle whose driver has disobeyed the “Stop Sign.”

So the mere fact you have ‘right of way’ (as the police car did) does not mean you are not ‘at fault’ in a collision.

What is evident from the comments that follow the video, and the disagreement as to who’s at fault, is there is more to it than the road rules.   Resolving the question of fault depends on what each driver saw and thought.  To go back to that video there would be questions of whether or not the red car was already blocking the police car’s path (note r 79 says the driver has to stop, r 78(2) says that if the driver is in the path, he or she has to move).  Who saw who?  Where was the driver of the police car looking? The issue is not at the time he or she moved over the stop line but at the time he or she drove into the vehicle in front.

Let me take another example, based on an earlier post – Air Horns on A CFA Appliance (January 20, 2017).   The question in essence was whether the use of air horns added anything to the use of beacons and a siren. A commentator on that post pointed out that

Use of an airhorn whilst responding a CFA appliance is covered under CFA SOP 12.04 which states…

Air horns may be used in conjunction with the siren, but shall only be operates in short blasts. Air horns are not deemed to be a siren.

But what does it mean that the CFA have said that ‘Air horns are not deemed to be a siren’?  It means that from the CFA’s point of view, they are not equated to a siren (or alarm) so if the CFA says you have to use your siren, the air horns, alone, aren’t sufficient.  But that won’t answer a legal question.

Assume that an appliance is being driven in an emergency response with lights, sirens and air horns.   At some point the siren stops working but the air horns are still working.  As far as the driver knows the beacon warning lights are still working so he or she continues to respond using the air horns.   A collision occurs.  After the collision an inspection of the appliance reveals that the beacons had also failed due to some fault in the warning device circuitry so when the siren cut out, the lights did too, but there was no indication to the driver of the extent of the failure.  Who’s at fault.

Assume the driver of the other car says ‘yes I saw the CFA appliance, I heard the air horns, but I’m a bush lawyer and I know the road rules and without flashing lights or siren (which the CFA says air horns aren’t) I knew I didn’t have to give way so I didn’t’.   I suspect any police officer or court would say that r 306 requires lights or an alarm, the horns brought the presence of the appliance to the attention of the driver, it was clear the driver of the appliance was seeking to move through traffic, you should have given way – it’s your fault.

Change the story, the other driver says ‘I heard a siren so I was looking for an emergency vehicle, but then the siren stopped.  I saw the CFA appliance but it had no lights or sirens and I could hear the air horns but couldn’t tell where they were coming from so I thought the best thing to do was keep coming’.  In that case questions are going to turn to the driver of the appliance – you knew your siren wasn’t working?  Did you check the lights?  You must have realised that air horns without sirens are not what people were expecting?  Why did you drive on into the intersection.  It’s your fault.

Now it’s not that simple because I haven’t given a story about the appliance driver’s perspective but the point is that by telling the story differently, we might reach different conclusions even though the nature of the driving of the appliance, and the road rules didn’t change.

So who’s to decide?  Again if you read the comments that follow the video some people think the police officer was at fault, others blame the driver of the red car.  Discussion is all well and good but it doesn’t lead to resolution of issues such as ‘who’s going to pay for the damage?’  A decision has to be made and that is what the police and courts are there for.  So don’t blame the police if they charge a driver, or the court for hearing and determining the matter.  Arguing ‘it shouldn’t be in court as the driver had the benefit of r 306’ is just asserting a conclusion you want the court to achieve, that is it is for the court to determine whether r 306 applies.

So what’s the point of r 306?  If you believe r 306 is going to get you out of trouble in a collision you’ve missed the point of the section.  It’s really a section that allows police and the fire service to avoid criticism.  We know that in today’s world, no matter what you do, someone’s there with a camera.  So when someone photographs a police officer using a mobile phone, or a fire appliance have a near miss when going through a stop sign, someone’s going to put that photo on social media and say ‘why don’t they get a ticket, I would’.  These rules allow the police to withdraw infringement notices for camera detected offences and not issue tickets because they point to a law that says ‘it was authorised; it’s not corruption or mates looking after their mates, the law says they’re allowed to do it’.

But rules like r 306 are written very vaguely and if I can steal a phrase from my friend Stephen Carter (of ACT RFS and SES) it’s a ‘self-licking ice-cream’.  It only applies if you’re taking reasonable care, and if you crash, prima facie you weren’t taking reasonable care.  Because even if you have right of way, the overriding obligation is not to crash.  The very act of being involved in a collision is evidence that you were not taking reasonable care.

Now it’s not correct, but it’s not a bad rule of thumb, that in any accident both drivers are at fault.  It’s not correct because some things aren’t ‘accidents’ eg where a driver deliberately rams another vehicle and sometimes one person’s driving is so bad there really is nowhere to go and nothing the other driver can do.    Classically running into the back of a stationary vehicle would be an accident where the person in front is not at fault.  But let’s stick to my rule of thumb – even when every rule is on your side there is still something you can do to avoid an accident – just ask any motorcyclist how much depending on ‘right of way’ won’t keep you alive.   So the collision is evidence (not proof, but evidence) of a failure to take reasonable care and if that’s the case r 306 disappears so as soon as there’s an accident, police and if push comes to shove, a court is going to have to consider whether or not the driver was taking ‘reasonable care’ so once you have an accident you can’t just point to the lights and sirens, you’re going to have to explain your action and possibly get a ticket or worse.

The effect is that r 306 allows the police and courts to lawfully not proceed against a driver who proceeds through a red light or exceeds the speed limit but it doesn’t determine who is at fault if a crash actually occurs.

Civil liability

Fault is a critical issue here, the driver at fault is required to make good any damage done.  In reality it’s their insurance company and in some jurisdictions, personal injuries compensation doesn’t depend on fault.  That’s true in all jurisdictions if the person’s injuries are catastrophic.  In those cases, the compulsory third party scheme will cover the costs of meeting the person’s basic needs but if they can prove fault they may be entitled to recover more for economic losses and general damages.  This is not the forum to consider all the various schemes but to say that the liability doesn’t really belong to the driver.

When considering civil liability, a court doesn’t have to find it was driver A or driver B at fault.  The court can apportion blame – driver A 40%, driver B 60%.  If that is the case and driver A is suing driver B, the court will determine the value of A’s damages according to law, and then order that B pay 60% of that amount.

The road rules are relevant here in that they are factors that the ‘reasonable driver’ pays attention to, but a ‘reasonable driver’ including the driver of a fire appliance knows that if he or she doesn’t pay attention, someone could die.  Even if they don’t crashing the appliance will defeat the purpose of the emergency response so the driver will pay very careful attention.

Case law, such as Hine v O’Conner quoted above, apportion damages when it comes to collisions between emergency service vehicles, but that is not always the case (No Liability for NSW Ambulance Accident (October 19, 2016) but see, contra see Liability For Motor Vehicle Accident – NSW Ambulance On Urgent Duty (July 6, 2015); see also The Motor Vehicle Accident That’s Not Your Fault (October 26, 2016)).   Remember that in all these cases the rules where the same.

Discussion

The Road Rules are merely the starting point.  The presence of r 306 does not give a broad exemption.  It is very narrow, limited only to an exemption from the other rules set out in the Australian Road Rules (not all traffic law) and only if the driver is taking ‘reasonable care’.  It’s the reasonable care that’s critical.   And if you’re involved in a collision, the question ‘were you taking reasonable care?’ has to be asked and answered – and the answer doesn’t come from the driver but ultimately a court (see Road Traffic Exemption – Who Determines if it is Reasonable that the Provision Should Not Apply? (May 22, 2016)).

In any accident, it may be that neither driver was taking ‘reasonable care’ so fault is not a binary choice, it can be shared.     The conclusion that driver A, or driver B was, or was not, exercising reasonable care depends upon the facts of which the presence of lights and sirens, and the road rules are just part of the factual picture.

As a commentator said, in response to an earlier post Your Rights Under Lights and Siren (December 4, 2015) ‘Emergency driving is a privilege, not a right…’.

Conclusion

I can draw three conclusions after running this blog for some 8 years.  My justifications for two of them are summarised in this post and in my other omnibus post, Scope of Practice – Previous Posts Explained (January 21, 2017).  Those conclusions are:

  1. If you have the skills to save someone’s life, use them; and
  2. If you are driving an emergency service vehicle, the most important rule is ‘don’t crash’.

To that I would add a third conclusion which is:

  1. No, you can’t put red and blue lights on your private car.

 

 

 


Categories: Researchers

Delaying the case sheet to respond to an urgent call – NSW Ambulance

21 January, 2017 - 20:52

A paramedic with NSW Ambulance says:

I recall seeing an article from you about the duty of care of Paramedics to complete Clinical Records and provide them to the hospital before departing on another case.  I can’t seem to find it though?

That post is Completing Paramedic Case Records (September 3, 2015).

The reason I ask is, NSW Ambulance has recently revised their clinical record policy which states:

“It is the responsibility of the paramedic to deliver and receive comprehensive clinical handovers wherever patient care changes from one clinician to another, this includes providing complete, legible and accurate documentation of the clinical observations, findings and management of the patient.”

But in another section states:

“Documentation of the clinical care is to occur at the time of, or as soon as practicable following the provision of professional advice, care, observation, assessment, management/treatment. It should include any other matter worthy of note.  However, response to a subsequent time critical incident should not be delayed in order to complete the CR. Records that are not completed contemporaneously with the treatment of the patient may lack in accuracy due to difficulty in recalling specifics of the incident. Where a CR is completed at a later time, a notation is to be made on the CR stating the reason for the delay and actual time the report was completed.”

To me this is a bit ambiguous because NSW Ambulance definition of “time critical incidents” may include someone with a simple cough “coded as Short Of Breath” or a caller with a cut finger who subjectively states the bleeding is “serious”.

That is a bit of a side issue.  Presumably NSW Ambulance define a time critical event as ‘short of breath’ or ‘severe bleeding’. The call taker and the paramedic don’t actually know what’s going on until they get there.  So the fact that it turns out the person had a simple cough or a cut finger, so their issue was not time critical, is not to the point.  The point is that, at the time, the case is prioritised as time critical.

Can I ask this… If a Paramedic delivers a patient to the hospital who has a complex medical condition/complex allergies/required significant active treatment, and that Paramedic was unable to provide a written copy of their clinical record because they were called away for a “time critical case” (as determined by NSW Ambulance), would that individual be liable for any mishaps that occur with the first patient as a result of the lack of documentation, or are they legally  “protected” by this policy which directs them to complete the written handover later?

The first rule is vicarious liability.  If the paramedic is negligent in the course of his or her employment, it is there employer that is liable.  So no, that individual WILL NOT be personally liable for any mishaps that occur with the first patient as a result of the lack of documentation, if there’s negligence it belongs to the ambulance service.  The other reason the ambulance service will be ‘at fault’ is that it’s the ambulance service’s duty to manage its resources and to give paramedics time to complete their tasks.

Managing resources will however always be a balancing act and a risk assessment.  There’s a risk to a patient if the handover isn’t completed with proper case sheet, but that person is already in hospital where others can provide care.  There is also a risk to the person who’s called triple zero and reported difficulty breathing or severe bleeding and the extent of that risk is not known.   The ambulance service has to manage both those risks with the limited resources that it has.

The ultimate issue is however for the paramedic who has to consider those risks. As I said in that earlier post:

… if there was no significant treatment to record on the eARF there may be little risk in leaving it if the paramedics are being asked to clear for an urgent task. On the other hand, if the patient has a life threatening condition and has received extensive treatment, including drug treatment from the paramedics, then ensuring that is recorded and handed over with the patient to allow their ongoing care is critical.   As noted above the ambulance service may owe a duty to get to other 000 callers as soon as possible, but the individual paramedic has a duty to continue to care for the person who is in their care.   Driving off without completing the eARF may be a remiss as simply dropping the patient at the door of A&E and driving away.

As employees’ paramedics are required to comply with the reasonable directions of their employer.  One can’t get into arguments on the spot about ‘what’s reasonable’ so if they are asked to clear for an urgent job but haven’t finished their paperwork and that does cause some problem, the paramedic won’t be liable, even if the ambulance service is.

When paramedics are registered health professionals the issue will change somewhat as the duty on paramedics to act as a responsible professional will be an independent and personal duty.  Liability will still belong to the Ambulance Service, but professional registration will enhance the paramedic’s capacity to say ‘I can’t clear as I need to complete this paperwork’.

Having said that I appreciate the dilemma both for paramedics and the ambulance service and it really does come down to a risk balance.  The problem for the paramedic is he or she knows what’s happening  with their current patient and can make a call on how important it is to their continued care that the documentation is completed.  What’s happening at the next call is at that stage unknown.


Categories: Researchers

Natural justice in, and the jurisdiction of, the CFA

21 January, 2017 - 20:25

The is the second part of a question received from a member of Victoria’s Country Fire Authority (for the first part, see Air Horns on a CFA Appliance (January 20, 2017)).   The relevant questions are set out in bold, below.

One of my brigade members has been suspended as a result of speeding to the station in his private vehicle and complaints from other members about this driving style on the way to jobs. He insists that while driving to the station to respond to alerts he is not answerable to CFA and therefor is not under their control in terms of speed limits etc. My belief is that he is responding as a CFA volunteer and so any directives regarding driving apply. (If he crashed on the way to the station to respond an appliance he would be covered by CFA insurance therefor they have the right to dictate how he should respond.) While he may say “whether I speed or not is up to me and only the police can fine me” it still seems reasonable that if CFA is aware of a member consistently speeding to the station to respond to fires then they have the right to suspend the member from turnouts. Can you clarify this in legal terms?

Related to the actual right of the CFA to take action is the need to grant ‘natural justice’.  I am the brigade delegate to (the) Volunteer Fire Brigades Victoria (association) which purportedly looks after the interests of volunteer brigades. The member detailed in the above called for my assistance. I gave him the advice on who he should talk to about driving and HR issues. Since then I have had a private telephone call from the brigade captain to say that there is no point in the member talking to the people I had recommended as they will not help and that the captain has private channels to ensure that this is the case. This raises the question of ‘is a requirement for natural justice for CFA volunteers?’ There is a disciplinary process called out in the Act and Regulations but it seems that individual brigades and management team can produce their own independent rules which override the regulations. There appears to be nothing to protect individual volunteers from arbitrary justice imposed by “brigade rules”. Is this really the case or do brigades have to comply with some overarching CFA disciplinary process and regulation?

It’s a bit hard to deal with this in detail without access to CFA documents and no doubt they have a relevant code of conduct or ethics.  On this point let me give a public acknowledgment of NSW RFS who put so much of their documentation online (see NSW Rural Fire Service, Service Standards).  I don’t see any reason for agencies not to make this sort of information public but most don’t.  Without reference to any position statement from the CFA this answer will be quite general.

The statement “whether I speed or not is up to me” must be wrong.   The volunteer who receives notice of a fire call and is making his or her way to the station is acting as a member of the CFA.  Consider what would happen if he or she was to crash on the way to the station and cause death or injury?  Everyone, the police, the coroner, the work health and safety inspector and the family of the deceased would want to know what instructions had the CFA given to firefighters to reduce the risk to others.   The CFA has a duty to ensure that its activities don’t pose a risk to people affected by its activities (Occupational Health and Safety Act 2004 (Vic) s 23).  This duty extends to volunteers and others on the road who the volunteer may put at risk when making their way to a fire station.

Further the CFA owes a duty to consider the welfare of its volunteers.  A volunteer who ‘speeds’ to the station, despite instructions not to, is not only putting him or herself at risk of death or injury, they are also putting themselves at risk of legal prosecution.  Their behaviour may well be a symptom that the fire fighter is struggling to cope with or understand his or her duties.  For all those reasons the CFA has a duty to intervene if they are aware of such risk-taking behaviour by someone responding to a call from the CFA.

Finally, to make it clear that the CFA must have an interest, change the facts and ask would the CFA be able to suspend a member who was guilty of murder, or sexual assault, or robbery, or arson or drug dealing?  The argument that ‘I sell drugs in my time, it’s nothing to do with the CFA’ is unlikely to be persuasive to either the CFA, the community or the press.  The CFA must consider whether people are suitable for the work of the CFA and the CFA’s role in the community, so offending even in your own time affects the CFA.

The authority of the CFA is set out in the Country Fire Authority Regulations 2014 (Vic).  Regulation 58 says:

A member who has been charged with an offence punishable by a term of imprisonment may be suspended from membership of the brigade by the Authority until the charge has been determined.

Regulation 58 is not limited to offences committed whilst acting as a member of the CFA.  Whilst ‘speeding’ doesn’t carry a penalty of imprisonment (Road Safety Road Rules 2009 (Vic) r 20), many other road offences do – for example Dangerous Driving (Road Safety Act 1986 (Vic) s 64).

Regulation 44 says:

A member of a brigade is guilty of an offence if the member— …

(d)     commits an act of misconduct; or…

(g)     is guilty of disgraceful or improper conduct.

What is ‘misconduct’ or ‘disgraceful or improper conduct’ is not defined but it would depend on what directions have been given to firefighters. Failing to comply with a policy statement or direction not to drive contrary to the road rules when turning out to the station could well fall within the description of ‘misconduct’.

I therefore agree that ‘if CFA is aware of a member consistently speeding to the station to respond to fires then they have the right [if not a duty] to suspend the member from turnouts’.

There are disciplinary proceedings set out in the Country Fire Authority Regulations 2014 (Vic) ss 44-58.  These provide for the process of investigation matters, suspending members during the period of investigation and ‘charging’ the member with an offence contrary to r 44.  Following an investigation and a decision by a CFA officer to lay a charge, the Chief Officer must hear the matter and determine whether or not the charge is proved.  In conducting the hearing (r 50(4)):

The Chief Officer must—

(a) ensure procedural fairness; and

(b) in making a decision, have regard to the interests of justice and fairness.

Suspension can occur before a decision is made to charge a member – so a member can be suspended during an investigation or whilst issues are dealt with in court (rr 47 and 58).

What follows is that if the formal proceedings are followed there is an obligation to impose natural justice but sometimes the procedures just are not followed – see Natural Justice and the SES (September 28, 2015), which does relate to Victoria SES).   So the question in this case would be has the member be formally suspended or just ‘told’ not to turn out?  In any event he or she can seek advice and it would be wrong for the Captain to use ‘back channels’ to influence that advice but no doubt such things do happen.

The final problem is if there has been a denial of natural justice, what do you do about it?  As my earlier post said:

The Victorian Civil and Administrative Tribunal (VCAT) found that it did not have jurisdiction to review a decision of Victoria SES to suspend four members of the Bacchus Marsh SES unit.

In Castle v Director General State Emergency Service [2008] NSWCA 231 the NSW Court of Appeal held that the Director-General had to hear from a unit controller before deciding to disband the SES unit and terminate the member’s appointment as unit controller.  That’s all well and good but the court did not that hearing from the member may not change the ultimate outcome, and the member, Mr Castle, did have to take the matter all the way to the Court of Appeal which most people can’t afford and couldn’t be bothered with.

Therefore, in the absence of a tribunal that can resolve the matter (such as VCAT) the right to natural justice may be somewhat hollow.   VCAT would have jurisdiction if the Chief Officer failed to give natural justice when hearing a formal allegation of an offence, but less formal actions, such as those taken with respect to the Bacchus Marsh SES unit may well leave the member without an effective remedy.

See also:


Categories: Researchers

Scope of practice – previous posts explained

21 January, 2017 - 05:35

This question was posted as a comment to my earlier post, Volunteering with Advanced Skills (January 18, 2017) but I thought it such a useful question that it warrants a post on it’s own.  I’ll break the question up and put comments along the way.

I know that you have responded to many questions that have a common theme and respond with the notion that individuals are likely to be held to the higher skill and a court would more likely question why something wasn’t done rather than why it was.

It’s true that this question, or variations on it, are asked a lot and my answer is ‘if you have skills that you can use for the advantage of the patient, use them’ but that hides many assumptions and subtleties that this post can bring out.

First, my point is not that ‘a court would more likely question why something wasn’t done rather than why it was’ but that a potential plaintiff would.  Law is not self-executing.  You can do something that’s negligent, or illegal, but legal consequences don’t follow unless legal action is taking.    So, let me try to put that in context.

In most of these posts I actually have trouble trying to think of the sort of thing that might arise.  Imagine a first aider is on duty with an intensive care paramedic and a registered medical practitioner.  They are in a first aid post with a standard first aid kit.  What exactly can the paramedic or doctor do that is going to be so different to the first aider in circumstances where it will make a difference?  The paramedic and the doctor might know more, so they can intervene if the first aider tells the person who is having a heart attack that they are OK to leave, but what actual skills do people have in mind?  And if you can identify skills that they have, that might be called for, and which can be performed in the circumstances, why shouldn’t they do that?

Given I’m not a clinician, let’s make some assumptions.  Let me assume that the relevant skill is release of a tension pneumothorax.  As I say, it’s a long time since I’ve had to treat a patient so I won’t rely on my understanding of what that involves, instead I’ll rely the advice published on a US Emergency Medical Service (EMS) website – Jim Sideras, Tension Pneumothorax: Identification and treatment (EMS1.com, January 17, 2011).  It says

Tension pneumothorax is a life threatening condition that can occur with chest trauma and is more likely to happen with trauma involving an opening in the chest wall.

After discussion about the causes, signs and symptoms and the difference where there is a ‘closed’ or ‘open’ pneumothorax it goes on to discuss when a ‘needle decompression’ is required.  For when a needle decompression is the appropriate treatment, it sets out these procedures:

  1. The following are steps to perform a chest decompression. However, you should follow your own protocols.
  2. Ensure patient is oxygenated if possible
  3. Select proper site
    1. Affected side at the second intercostal space and along the mid-clavicular line
    2. Note: Draw an imaginary line from the nipple up to the clavicle. The needle should not be closer to the middle of the chest than this line
  4. Clean site with alcohol or povidine solution
  5. Prepare needle; if it has a leur-lock or flash chamber, it will need to be removed
  6. Insert the needle into the second intercostal space at a 90 degree angle to the chest, just over the third rib.
  7. Note: There are blood vessels running along the bottom of the ribs. Ensure the needle is closer to the top margin of the lower rib in the intercostal space. This will prevent these vessels from being damaged.
  8. Listen for a rush of exiting air from the needle
  9. Remove the needle and leave the catheter in place, properly disposing of the needle
  10. Secure the catheter in place with tape. Some suggest covering the end of the catheter, but this will depend on the situation
  11. Ensure the tension has been relieved and the patient’s condition improves. If there is no improvement, the procedure will need to be repeated with another needle placed adjacent to the first needle
  12. Monitor, then reassess the patient

Now let us assume that a patient with a tension pneumothorax has presented to the first aid post and for whatever reason the first aid organisation has not endorsed the ‘scope of practice’ for either our doctor, or paramedic, to perform this procedure even though, let us also assume, they are both familiar with the procedure, experienced in doing it and by some bizarre circumstance, the relevant equipment is to hand.

There are not two options.  1) The patient is treated in accordance with the first aid manual that does not provide for the release of the tension pneumothorax, or 2) the doctor or paramedic, or both, release the tension pneumothorax.    Let us assume option (1) and let us also assume she dies and the autopsy reveals that had the pneumothorax been relieved, the injury would not have been life threatening.  Now imagine you are a member of her immediate family, her partner, child or parent.   How do you react to that news, assuming that you now know that the doctor and paramedic were there.  Here is a case where a person came to the first aid post seeking first aid, that is the very service they first aiders, including the doctor and paramedic, were there to provide. The person was vulnerable, in that they were injured, and they turned to the very people who claimed to be there to help and provide care.  And two people in that first aid room could have taken action to save her life, but didn’t.

Now imagine scenario (2), the tension pneumothorax is released, the patient is transported to hospital and has a good outcome.  Now imagine you are a member of her immediate family, her partner, child or parent.   How do you react to that news?  With pleasant joy and a letter to the first aid service thanking them for their professional response.

In which scenario are you more likely to get sued?  In the first the organisation and the doctor and the paramedic may well have a legal argument  – it was beyond our scope of practice and all the patient was promised was a ‘reasonable first aid service’ and that’s all she got.  That argument might even win – but in the first scenario, you might have to spend three years in courts arguing the point, in the second you get a pat on the back and a box of chocolates.

My first point, then, is that it’s not so much the court, but the people who are likely to take action, who are going to ask why things were not done, not why were they done.  It’s a risk – but if you want to take a risk management perspective the risk must be lower to act than not act.

What will the courts do?  The courts will ask ‘was the response reasonable’ that is was there good reason to act, or not act.  The reason to act is ‘we were competent, proficient, experienced, knowledgable, had the equipment at hand, knew of the patient’s need and recognised that without intervention the consequences were life threatening’.  All good reason to do something.

What is the reason to not act?  My agency told me not to do it and that I might not be insured – in other words I want to protect my agency, or myself, not my patient.    In a post on his Fire Law blog, on an unrelated matter (Rope Rescue, NFPA Compliance and Liability (January 11, 2017)), US firefighter and lawyer Curt Varone said:

To me it is not a liability issue. We have to stop thinking about things in terms of liability and do things because it is the right thing to do.

I agree with that sentiment.  If your focus is ‘I’ll get into trouble’ it’s time to stop volunteering.

But that doesn’t mean that there aren’t very good reasons for not acting.  They might be that they don’t have the equipment to hand, that if they release the tension pneumothorax they’ll have to escort the patient to hospital because the attending ambulance crew may not be able to deal with that situation, it may be that the ambulance is in fact only a short distance away and the patient’s condition won’t deteriorate in that time so better to leave it to those that will transport, it may be that the doctor or paramedic are already dealing with other life threatening injuries or multiple casualties and they triage the patient as a lower priority.  None of those apply in the story as I told it, but they might and if they did they would be good reason not to act.  They can be summed up by ‘if there is a clinical reason that says ‘let’s not do this’ then don’t do it’.

Let’s change the story somewhat.  Now assume option (2) that is the paramedic and doctor relieve the tension pneumothorax but for whatever reason the patient still dies.  There seems to be some myth that a person can sue whenever there’s a bad outcome.  I suppose a person can sue but whether it will go anywhere is a different matter but the reality is that a bad outcome does not mean liability.  In any event the patient has died and it’s discovered that the paramedic and doctor acted outside their scope of practice.  But so what? It is not the case that if you can prove any default of divergence from procedure liability will be established.  The divergence must be relevant (I saw someone suggest once that if you can show a nurse was wearing non-approved footwear, they would be liable and that is of course rubbish), and the plaintiff would have to show it made a difference.  In this case they would have to show that the patient would not have died if the paramedic and doctor had not tried to relieve the pneumothorax, so it was their intervention and not the initial injury that caused the death.

Now that might be the case if the person did not have a tension pneumothorax and when trying to relieve it they punctured a blood vessel and the patient bleed to death.  But the issue there is not that they did or did not act within their scope of practice, but that they were, or were not, competent.

Here the issue of vicarious liability may be an issue.  At common law vicarious liability extends to ensure that an employer is liable for the negligence of is employees.  It is not the case that any divergence (go back to the approved footwear comment, above) means that the employer is not liable.  Vicarious liability extends to an employee doing an authorised act in an unauthorised way.  If relieving a tension pneumothorax was within the practitioner’s scope of practice and they puncture a blood vessel, the employer will be liable.  I would suggest that a volunteer doctor or paramedic who is there as a first aider, but who ‘are both familiar with the procedure, experienced in doing it and by some bizarre circumstance, the relevant equipment is to hand’ is still doing an authorised act (providing first aid) in an unauthorised way so I would still expect the employer to be liable.

The situation is not so clear for volunteers.  First the volunteer who has watched too much M*A*S*H (Season 5 Episode 8, ‘Mulcahy’s War’ where Radar performs a tracheostomy using a pen knife and a biro) so decides to ‘have a go’ will certainly be on a ‘frolic of his or her own’.  Second, if we take as our example the Civil Liability Act 2002 (NSW) it says (at s 61):

A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work:

(a) organised by a community organisation, or

(b) as an office holder of a community organisation.

Section 64 goes onto say, however, that

This Part does not confer protection from personal liability on a volunteer in respect of an act or omission of a volunteer if the volunteer knew or ought reasonably to have known that he or she was acting:

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

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

Let us now assume that indeed the doctor or paramedic was sued over the procedure and wants to enjoy protection of s 61.  The plaintiff may want to argue that they are not protected by s 61 because of s 64.  That may be true.  But is that a good reason not to act?

To rely on that, is to say ‘The reason I didn’t relieve the patient’s tension pneumothorax, even though I was ‘familiar with the procedure, experienced in doing it and by some bizarre circumstance, the relevant equipment is to hand’ was because I knew that if I got sued I would not be able to rely on s 61, but if I let the patient die and got sued I could’.    That might be true, but is fear that “I’ll stuff this up and get sued’ a good reason not to act?  Fear that “I’ll stuff this up” is a good reason not to act, if in all the circumstances you think ‘I know what this patient needs but in this setting, in this first aid room, with this lighting, without my usual team about me, I’m not comfortable doing the procedure’ is a clinical reason.  But I don’t think a court would find it ‘reasonable’ to say, again, I was concerned that I would be liable.  But let me accept that it is not an illegitimate concern and it does reflect the notion that agencies that use volunteers must be able to set limits on what those volunteers do and don’t do.

Let me now return to my correspondent’s question which goes on to say:

What I query is that this view / opinion tends to send a message that organisational clinical governance frameworks and process (professional recognition, clinical credentialing and issuance of scope of practice etc) are largely superfluous?

To some extent I agree with that.  I think the issue is particularly true with registered health professionals and I’m going to include state paramedics in that category even though they are not yet registered health professionals.   The critical question will be are the agencies ‘professional recognition, clinical credentialing and issuance of scope of practice etc’ reasonable.  A ‘scope of practice’ that says ‘you must act in accordance with, and only in accordance with the first aid manual’ is easy to write and perhaps enforce, but it’s not reasonable.

For registered health professionals it’s a particular problem as they owe duties to their patients as doctors and nurses.  If the ‘scope of practice’ of the organisation unreasonably restricts their ability to act professionally, that is in a way that is accepted as appropriate by the profession, then they have a fundamental conflict.  If they are not allowed to practice in a professionally responsible way, I would advise them to rethink their volunteering (see ALS Paramedic as Volunteer With St John (WA) (April 5, 2014)).

My correspondent continues:

What if an organisation used a robust clinical credentialing framework to determine the clinical scope of practice of its staff and despite an individual claiming to be qualified / certified in an ‘advanced’ skill(s), the organisation/credentialing process did not include it in their scope of practice?! Hypothetically, where does this leave the individual and organisation.

For a start, we are now assuming that the ‘clinical credentialing framework to determine the clinical scope of practice of its staff’ is ‘robust’ so that it takes into account their professional obligations and the scope of practice of their ‘day job’.   In my view the questions I’ve previously answered have not demonstrated a robust scheme so, for example previous comments have dealt with situations where St John Ambulance (WA) tried to limit the practice of ‘a very experienced paramedic, currently working in a remote capacity in remote Western Australia’ (ALS Paramedic as Volunteer With St John (WA) (April 5, 2014)) or Victoria ambulance tried to limit the practice of one of its own paramedics (‘Just Ridiculous’? When is a MICA Paramedic a MICA Paramedic? (March 28, 2013)) or surf lifesaving trying to restrict the practice of a doctor (Doctor as Volunteer Life Saver and Scope of Practice (February 6, 2015)). Other questions involved paramedic fire fighters where again it was at least inferred that there was no real consideration given by the fire service as to what paramedics who were also volunteer fire fighters might do Victorian Paramedic and CFA Volunteer Assisting with Patient Care (August 25, 2016) and NSW Paramedic and Fire Fighter – When Does One Role Start and Finish? (July 8, 2015)).

That said, those earlier posts have to be read in that context.  If the organisation does have a robust scheme that seriously considers what people do in their ‘day job’ and their professional scope of practice then makes determinations based on that, that is a different matter.  One would expect that whatever the professional scope of practice (and here I’m talking registered health professionals and paramedics) would apply in their first aid volunteering but again there may be good clinical reasons why it doesn’t.  Provided the reasons are based on good clinical governance, not merely convenience and certainly not ‘we’ll all be sued if we let you do that’ then it must be honoured.

As for someone who claims a skill that the credentialing system doesn’t support, that is a different matter.  The person who says ‘I have advanced skills because I’ve got this certificate from Dodgy Brothers First Aid doesn’t have to be recognised.   If the ‘clinical credentialing framework to determine the clinical scope of practice of its staff’ is ‘robust’ there is presumably some Recognition of Prior Learning policy.  So one can ask ‘Is this certificate issued by an RTO or an agency we trust?’ ‘Can the person demonstrate the claimed skills?’   In that case the failure to expand their scope of practice should come with advice that ‘even though you claim to have that skill set, you don’t actually have it’.   Now in the questions I’ve answered I’ve accepted the person has the skill set claimed so those answers are different if they don’t.

That is clearly a problem as the person may not know and this is one of the situations where the legal answer is going to depend on the outcome.  Let’s return to the patient with a tension pneumothorax and the first aid has a Dodgy Brothers Certificate in pneumothorax treatment.  The organisation for which they volunteer has seen it and said ‘that’s rubbish, don’t ever try to do that when on one of our duties’ but here’s the patient in desperate need.    We’re still not in a very different position.  Dodgy releases the pneumothorax, the patient lives, everyone’s happy.  Dodgy doesn’t and the patient dies (remember that law suits against first aiders are virtually unheard of but even so) perhaps the family are upset and they might sue – both Dodgy for not doing it and the organisation for not letting him or her.    Answering whether they’d win or not would depend so much on the facts that I can’t make a prediction.  Or Dodgy does do it and does a bad job and someone sues.

In this case the organisation is going to want to disown Dodgy and if the organisation can point to a ‘robust’ assessment and communication to Dodgy that he or she really wasn’t skilled that will be much stronger than a non-existent process or a simple rule – ‘when you volunteer with us you apply our teaching and forget what you know’.

To repeat, all of my previous answers have been predicated on the unstated assumption that there is not a ‘robust clinical credentialing framework to determine the clinical scope of practice’.  The restrictions that have been imposed have been done due to a misguided legal fear or to avoid paying people for their skills.   If the restriction is evidence based, it’s a different story.

What concerns me is that whilst individuals can only work with the equipment provided, some will use the ‘greater good’ argument to supply their own equipment …

That is both fair enough and relates to the discussion above about ‘professional recognition, clinical credentialing and issuance of scope of practice etc’.   First, if the person starts bringing their own kit they begin to look like they are on a ‘frolic of their own’ that is they are not volunteering for the agency but in their own right.  That could be the case if they start carrying an intubation kit or a kit to release a pneumothorax, it would definitely be the case if they start carrying a drug kit where the lawful authority comes from their status as a registered health professional rather than as a person endorsed by the first aid organisation.  If they are ‘on a frolic of their own’ (as the first aider with the pen knife and biro above) then the agency can argue that they are not vicariously liable for any negligence.

And the problem can be dealt with in this way.   Whilst an agency can’t tell a person ‘pretend you don’t know what you do know’ they can say ‘this is the kit list, this is what is on the first aid post, this is what you can carry if you have our endorsement but don’t bring ‘stuff’ that isn’t on the list’.   In essence if you don’t carry the kit, you don’t have a choice to make.  There can’t be a ‘duty’ to carry the equipment to treat every possible injury because a duty of care is not owed to the world at large – it is owed to actual patient’s not potential ones.  So the mere fact that it is foreseeable that a person may present to a first aid post with a tension pneumothorax does not impose a duty on the event first aider provider to ensure that there is someone there who can treat it. You might also foresee that you might have patients with the bends but that doesn’t mean you must have a decompression chamber.    So the fact that the equipment is not there cannot lead to liability (within reason, there has to be some basic kit that no reasonable first aid organisation would fail to have, but the equipment for relieving a tension pneumothorax probably isn’t on that list).

… and additionally I am concerned (especially with healthcare professionals) that ‘context’ is a large contributor to an individual exercising clinical judgement and undertaking a skill.

Being trained and/or qualified in skills and exercising their judgement in undertaking that skill in their work environment vs in a hostile, minimally resourced mass gathering environ with no similarly or higher skilled clinician for support is a very different shift in context for many clinicians, (I accept for some it will be a comfortable and easy shift but for many (especially doctors and nurses) it’s an unfamiliar one…

That is correct and that is why for example, doctor’s fears of getting sued at an accident are overstated.     So a registered health professional may well be justified, on a clinical basis, in saying ‘I’d do x if I was in my hospital, but I’m not and I’m not going to try it here’.   And that would also be a defence if the injured person (or in extreme cases, the family of the deceased) want to argue ‘you were a doctor you should have done x’ if ‘x’ is what say, an experience emergency physician might have done, but the doctor in question is a city general practitioner with no emergency experience since leaving medical school.  Again, the questions I’ve answered before are predicated on the assumption that the person has the relevant skills.

Another issue to address is that what I’ve been talking about are life saving, time critical issues.  A doctor who volunteers with St John Ambulance is volunteering to do what doctors with St John ambulance do – first aid.  If a person develops a tension pneumothorax and is likely to die within 5 minutes and the ambulance won’t be on scene for 10, acting to relive that is part of providing first aid.  If, on the other hand, a patient comes in with a cut leg and the doctor can see it will need stitches and considers that he or she has a suture kit, there is no ‘duty’ to stitch them up.  St John practice would be to clean and dress the wound and tell them to go to casualty.   They’re not going to die, it’s not going to affect their outcome etc.  Where a relevant duty may arise here is if the volunteer first aider says ‘that’ll be right it won’t need a stitch’.  The doctor may think that as a St John volunteer it’s not his or her place to give medical advice, but as a doctor it would be reasonable to say ‘no, I think it does need stitches, you should go to casualty’ (or, if you prefer, have a quiet word with the volunteer so they can correct their advice).  Again, the doctor can’t not know what he or she knows.

As I said at the start too, I think the situation is mostly hypothetical because it’s difficult to imagine exactly what skill set we are talking about.  When volunteering, health professionals, including paramedics, have knowledge and confidence but what other skills do people think they have that they’ll be able to use, that will make a significant difference to the patient outcome, but which the agency for which they volunteer has said they are not to use?  And if you’re a registered health professional and you seriously think that if it came down to a matter of life and death the organisation would prefer you to let the patient die than do something that you are qualified and competent to do, you need to rethink your volunteering.

Is anyone going to get sued in these cases?  If the patient has a good outcome, no.   And in most other cases, no.  To go back to my starting point, however, if you are worried about risk, the risk is highest if you don’t do what is in the best interests of the patient.

So, should organisations continue to seek to improve clinical governance or is it irrelevant?

Absolutely, because that is the key.  As noted the questions I’ve answered before have implied a failure to have proper clinical governance.  If there is a system that considers each case on its merits, not just a blanket ‘This is Kaos First Aid – We don’t do that here’ (for those that remember ‘Get Smart’) then it is much more likely to stand up to scrutiny.  But any system is going to be difficult to justify if life saving treatment, or treatment that will avoid permanent and/or significant ongoing disability, is withheld by a person capable of providing it on the basis that ‘my organisation said I couldn’t and I didn’t want to be sued if I stuffed it up’.

For a registered health professional, failing to do what they know needs to be done, and is within their professional scope of practice could lead to professional discipline regardless of the edict from their volunteer agency unless, at least, there is an evidence based clinical reason for a decision to restrict their practice.


Categories: Researchers

Contracting emergency response activities

20 January, 2017 - 03:04

An employee of the Port Authority of NSW

… was particularly interested in your article on who is the agency for fighting fires and emergency response on Sydney harbour.

I work in marine operations for PANSW which currently has two fire fighting tugs manned 24/7 365 days a year – the ‘Shirley Smith’ in Sydney and the ‘Ted Noffs’ in Botany.  Both tugs were constructed to comply with the Australian Standard for FFSV.  In case of fire and emergency in Port Botany and Sydney we are the lead agency but take direction from the Fire Brigade for fires once they are on board.

The harbour master of the PANSW is planning to change the role of the FFSV.  These tugs are aging and he wants to replace them. The harbour master is currently negotiating with a commercial tug company to take over the primary role of fire fighting and emergency towage with their vessels by making their tugs captive with a minimum one hour call out time

This will take away the role of PANSW as the primary agency in all emergency plans and leave the PANSW employees without a role that they were trained to do.  The tugs are international standard for fire fighting not Australian standard and do not carry the required amount of foam on board.

Is there any advice you can give as to the legality of such a proposed move?

Is there any legal action that could be taken to stop these plans taking effect?

I can’t answer the specific questions asked as that would require much more detail and no doubt access to tender documents and other commercial in confidence material.  I can however provide some brief comments on the claim that ‘This will take away the role of PANSW as the primary agency in all emergency plans.’

Engaging others to provide services, in this case the commercial tug company, doesn’t necessarily ‘take away the role of PANSW as the primary agency in all emergency plans’. The NSW State Emergency Plan defines the combat agency as ‘the agency identified in EMPLAN as the agency primarily responsible for controlling the response to a particular emergency’.  Combat agencies can, and do, call on others to provide services but they remain ‘in control’.  For example, the NSW Rural Fire Service don’t own or fly all of the aircraft they use for aerial firefighting but the fact that they contract with the operators does not mean that the RFS has vacated its role as the combat agency for bushfires.

As I said in my post Combat Agency For Fire On Board A Vessel In Sydney Harbour (July 20, 2015)

… it is the Port Authority of New South Wales that is the combat agency.  They should appoint the Incident Controller who will set the controller’s intent for the response. Fire and Rescue may well take charge of firefighting operations but that doesn’t deny that the Ports Corporation is the combat agency, in the same way that in other emergencies particular agencies have specialised roles but it is the role of the IC to take overall control of the response.

The Port Authority could contract with the commercial tug company to provide fire fighting and tug boat services but that, on it’s own, doesn’t mean that the Authority no longer remains in control of the operation.

As for advice on the legality of the proposed move or any legal action that could be taken to stop these plans taking effect I would advise my correspondent to contact the relevant employees union.


Categories: Researchers

Air horns on a CFA appliance

20 January, 2017 - 02:24

This question comes from a member of Victoria’s Country Fire Authority.  There were really two questions so I’m going to answer them in two posts.  The first relates to, once again, driving an emergency vehicle.

In addition to the normal vehicle horns on our appliances we have CFA authorised lights and sirens. On a couple of the vehicles we have installed additional airhorns. These were installed on the basis that civilian vehicles often ignored – or did not hear – the sirens. We have had complaints of drivers riding these airhorns as a way to get through traffic. I would be interested in your comments on the issues surrounding this in Victoria. Do drivers have to clear a path for, or can they not enter the path of, an emergency vehicle? If an “emergency vehicle” is displaying lights or sirens does an airhorn count as an emergency warning device? Anything else you can add to the question would be appreciated.

Any guidance you can offer regarding code 1 response driving [i.e. lights and sirens] and approach to intersections, roundabouts, etc. would be appreciated.

Any driver has to give way to, and clear the way for, an emergency vehicle.  In Victoria that is provided for in the Road Safety Road Rules 2009 (Vic).   Rule 78(1) says:

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

Rule 79(1) says

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

The reference in the rules is to ‘an alarm’ rather than ‘a siren’.   What constitutes an ‘alarm’ is not defined.  Vehicles must comply with the standards set out in Schedule 2 to the Road Safety (Vehicles) Regulations 2009 (Vic).  Clause 34 of those standards says:

  1. A motor vehicle must be fitted with at least one horn or other device that can give sufficient audible warning to other road users of the approach or position of the vehicle.
  2. A motor vehicle must not be fitted with a device that can make a sound like the sound of a siren, exhaust whistle, compression whistle or repeater horn.

Clause 34(2) does not apply to, amongst others, police and emergency vehicles (see 34(3)).

The Oxford English Dictionary (online) relevantly defines ‘alarm’ as ‘A warning of danger’ or ‘A warning sound or device’.   So the question becomes, are the air horns ‘an alarm’?

I think they probably would be.  If we go back to rr 78 and 79 drivers have to give way, and make way, to a vehicle that is displaying red/blue lights or sounding an alarm.  The horn, whether it’s the standard horn or an after market air horn is certainly able to warn other drivers so it is a ‘warning sound’ warning of ‘danger’.   If the vehicle is a CFA vehicle with red/blue lights and a siren, the use of the horn (air horn or otherwise) adds to the warning or ‘alarm’.    Equally if the vehicle has red/blue lights flashing whether the horn is an ‘alarm’ or not doesn’t really matter as the obligation on other drivers applies if the emergency vehicle has it lights on, or sounding an alarm.    The definition would only be an issue if the air horn was being used with no siren and no red/blue flashing lights but one would have to ask why anyone would do that?  It might not be ‘reasonable’ given that other drivers may well not understand what is going on, but I imagine most people who saw a CFA appliance trying to push its way through traffic sounding its air horns would probably try to get out of its way, but whether that was sufficient to claim any exemption from the road rules would be debatable.

In summary, I can’t see why an air horn does not fit the definition of an ‘alarm’ but if the appliance driver has the flashing lights and siren activated the question of that definition is irrelevant.  The use of the air horn in those circumstances does however add to the warning function but the exemption under r 306 and the obligations under rr 78 and 79 are triggered without it.  In other words the use of an air horn adds nothing, legally, to the use of flashing lights and siren, but it may add some practical value if it does in fact draw the presence of the appliance to the attention of other drivers.

As for ‘Any guidance … regarding code 1 response driving [i.e. lights and sirens] and approach to intersections, roundabouts, etc’ see https://emergencylaw.wordpress.com/category/driving-and-road-rules/,  and remember the most important rule – ‘Don’t crash’.

 

 

 

 

 


Categories: Researchers

Volunteering with advanced skills

18 January, 2017 - 04:38

This question has come up time and again.  This time it’s from a life saver in WA who says:

I’m employed by St John Ambulance (WA) as an Event Medic and I also volunteer for them from time to time in a similar role. Additionally, I volunteer at a surf club. As a paid/qualified Emergency 1st Aid provider, when volunteering for either organisation can I be held to account given the higher level of skills I’m trained and employed to use or does the Good Samaritan Act apply at the times I’m volunteering? (Our qualification is Cert IV in Ambulance Care equivalent).

For some earlier, related posts, see

The answer is, if you’re providing care to someone, you know what you know and you can do what you can do.  No-one, certainly not the patient or a judge, is going to reward you for pretending that today, you don’t know, or can’t do something that clearly you can.     And certainly they’re not going to reward you for saying ‘I didn’t do everything I could do because I was afraid of my legal exposure or the exposure of your organisation – that I was putting everyone’s interests ahead of the person in need of care’.

A person is entitled to expect ‘reasonable care’, what is reasonable depends on the person’s level of training and knowledge.  If there is something you can do and you identify that it needs to be done, then it would be reasonable do to it.   Imagine the counter example, assume for example you know how to use an epipen and to recognise the need for it.  A patient is having an anaphylactic episode and would benefit from the treatment.  There is an epipen to hand.  But assume you are, at that time, acting as a volunteer surf lifesavers and the use of an epipen is not part of the life saving training.  Do you use it or not?

If you don’t use it do you think anyone is going to thank you for not doing what you could have done?  If you do use it is anyone going to sue you?  (And if they do sue, whether you use it or not, it won’t be you but the organisation for which you volunteer that will wear that burden.  But remember, there are NO cases of law suits in these situations.)  The reality is you are much more likely to be sued for not doing it because here was a person in need, you were providing some care and there was something you could have done but didn’t.  The good Samaritan legislation won’t help with a decision not to act if your motivation is ‘but today I’m a surf lifesaver’ because you are not acting ‘in good faith’ for the benefit of the patient, but to cover your own backside.

This discussion is only relevant if you don’t need special equipment or you have what you need.   If, for example, one of the skills you have is knowledge of how to intubate, but you don’t have an intubation kit with you, then you can’t be expected to intubate the patient nor can you be judged on the basis that if you’d had that kit, you could have done something more for the person.

As for the good Samaritan legislation (in WA, the Civil Liability Act 2002 (WA) ss 5AB-5AE) it says:

A good samaritan does not incur any personal civil liability in respect of an act or omission done or made by the good samaritan at the scene of an emergency in good faith and without recklessness in assisting a person in apparent need of emergency assistance.

A ‘good samaritan’ is any person ‘acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance’.  I don’t think it applies to St John or lifesaving volunteers.  They are at an event or a beach with the very purpose of providing emergency assistance.  The members do not get paid (either by the service or the patient) but they do get other benefits from their membership and their volunteering.   To extend good Samaritan protection to those volunteers would say that those organisations that hold themselves out as being expert at providing that care, do not have to provide ‘reasonable care’ to their patients.  That was not the intention behind the legislation and I don’t think the Act would be extended that far.

In WA the Volunteers And Food And Other Donors (Protection From Liability) Act 2002 (WA) would ensure that a volunteer is not personally liable but that the organisation for which they volunteer (in this case St John (WA) or the surf lifesaving association) would be.  I do not think the Civil Liability Act was intended to defeat the policy in that legislation which is to ensure that people who are injured by a negligent volunteer are not left without a remedy.

It is my view therefore that the ‘good samaritan’ provisions do not apply to a first aid volunteer when ‘on duty’.

Conclusion

Can I be held to account given the higher level of skills I’m trained and employed to use?

Answer: Yes, you have those skills and knowledge.  If you’re going to help someone, do what you can do to help.

As a general observation, if a person is going to volunteer in an emergency service, but is unwilling to do their best for the person who needs help because of some misperceived fear of legal liability – believing that somehow the law would prefer a person not to do whatever they can to help – then it’s time to reconsider that volunteering.

Does the Good Samaritan Act apply at the times I’m volunteering?

Answer: In my opinion, no.  When volunteering, the relevant law is the Volunteers And Food And Other Donors (Protection From Liability) Act 2002 (WA).  Even if the ‘good samaritan’ legislation did apply, it would not justify withholding care that a person can identify is needed and which they can reasonably provide.

 

 


Categories: Researchers

Dealing with traffic tickets and SA Ambulance Service policy

17 January, 2017 - 20:36

In an earlier post, THE PRIVILEGE AGAINST SELF INCRIMINATION AND SOUTH AUSTRALIA AMBULANCE (JANUARY 17, 2017) I responded to a paramedics concerns about the approach of SA Ambulance when dealing with traffic infringements issued after red light or speed cameras detected an ambulance entering an intersection against a red light or speeding.  After writing that post I was sent the actual policy document (headed ‘Processing of Expiation Notices & Alleged Driving Offences’ with an effective date of 12 August 2016).   In that earlier post I responded to what people think the policy says, but what does it actually say and is it unreasonable?

The policy starts by saying ‘There is a presumption of guilt if a vehicle is detected by photographic equipment to be driving outside normal legal parameters.’  I’m not sure who makes that presumption, that is whether SAAS ‘presume’ the driver did the wrong thing, or they think that’s the law.  It certainly isn’t the law.  If a photo detects an offence then the police may issue an ‘expiation notice’, but that does not ‘presume guilt’.  If a driver wishes to deny that they are guilty of any offence they are free to elect to be prosecuted and the matter will go to court and the crown have to prove the case beyond reasonable doubt.  The problem for the driver is that the photo in most cases will be sufficient but not always.  Drivers, even of non-emergency vehicles, may have relevant defences and the burden is always on the Crown to prove the case.   What that statement ‘There is a presumption of guilt …’ means is unclear, but it probably isn’t of any practical importance, given the rest of the policy.

The policy says:

SAAS will review and if necessary seek clarification on an expiation notice when it appears that a vehicle:

  • Is speeding and is not using emergency lights.
  • Is passing a red traffic light to enter an intersection or crossing.
  • Shows a speed or driving behaviour that is / or appears to be not reasonable.
  • Does not demonstrate compliance with applicable SAAS Policy and Procedures.

(An ‘expiation notice’ would be called an ‘infringement notice’ in most other jurisdictions).

The Service has an ‘Expiation Notice Declaration Form’ (ENDF) that, in some cases drivers are asked to complete in order ‘to supply sufficient information, so that it is clear from that documentation that a reasonable cause was present to allow for an exemption’. (I note that I do not have a copy of that form).

In the original post, my correspondent said:

SAAS management, on alleged pressure from SAPOL to better explain our actions, have now introduced policies that requires the driver of the ambulance to disclose additional information in support of SAAS’s claim that they were in fact driving with due care and attention

Readers should note that it is not SAAS that ultimately decides whether the exemption contained in rule 306 of the Australian Road Rules applies but the process has to be that SAAS first has to think the case deserves the exemption, then it’s up to the police to agree (or not) and then, ultimately, a court (see Road Traffic Exemption – Who Determines If It Is Reasonable That The Provision Should Not Apply? (May 22, 2016)).   It is not unreasonable for police to insist that if they are being asked to withdraw a notice that the SAAS, and ultimately the driver, confirm that the circumstances warrant the application of r 306.

With that background the policy goes into more detail.  First [4.3.1] says that if it’s determined that the ambulance vehicle was not responding to an emergency, the driver will be asked to complete an ENDF in order for the notice to be issued to him or her, rather than the Ambulance Service.  There would, presumably, be no need to go into details of the nature of the driving at that point as the SAAS is not going to be asking for a waiver.   If the re was no emergency, then it’s a standard traffic offence and the driver will, presumably, pay the fine or make their own representations to police.

Paragraph 4.3.2 deals with an emergency response.  First SAAS say that where ‘notices that are sent to SAAS that show a speed (up to 30kph above a posted speed limit) or a manner of driving that SAAS considers within normal expectations for an emergency vehicle’ then the SAAS will review the photo evidence.  If the photo shows that the beacons were activated and the records show that this was an emergency (P1 or P2 case), the SAAS will deal directly with SAPOL to have the matter withdraw.  My original correspondent said

…  historically … when an ambulance vehicle was detected by a road side camera to be committing a traffic offence, South Australia Police (SAPOL) would hand over the traffic infringement notice to South Australian Ambulance Service (SAAS) and they would confirm that the ambulance was appropriately ‘responding’.  After this, enquires would stop and the infringement would be written off.

This paragraph says that is still what is happening when the photo evidence supports the application of rule 306.

If the photo does not show that the beacons were on, then SAAS say they will still ‘request SAPOL to withdraw the notice’ but if SAPOL dispute that on the basis that the beacons were not on then the matter will be referred to the driver who will be asked to confirm ‘that the vehicle lights (and siren) were activated’.  Remember rule 306 of the Australian Road Rules requires that ‘the vehicle is displaying a blue or red flashing light or sounding an alarm’.  A photo can’t reveal whether a siren is sounding or not, and presumably may miss the flashing lights given the ambient light, the angle of the camera and because, by definition, flashing lights alternate between being ‘on’ and ‘off’.  Maybe the driver has turned the switch ‘on’ but the lights aren’t working but he or she does not know that.

Now one could take the point and say ‘I’m not going to say anything, the police have to prove their case’ but what would be the point?  The matter would go to court, the police would tender the photo and the driver would have to lead the sort of evidence that SAAS are trying to collect, ie paperwork to show that it was an emergency response and evidence that the lights and/or siren were on etc.  The police would have to prove, beyond reasonable doubt, that some or all of that were not true.  They probably could not so the case would be dismissed but why go through all that hassle rather than provide that information up front and ask SAPOL to withdraw the notice?

So there’s nothing objectionable in asking the driver to confirm that the lights and siren were activated.   If the lights and sirens were not on, the driver’s going to get an expiation notice because without lights or sirens, r 306 doesn’t apply.

Paragraph 4.3.3 is headed ‘Emergency tasking notices (requiring justification)’ and applies when the photo ‘shows a speed or driving behaviour which would not reasonably be expected by the driver of an emergency vehicle.’

To go back to my original post, the correspondent there said

It was only in extreme cases (i.e. excessive speeds and alike), that a crew might be internally disciplined but it was very unlikely that criminal charges would be pursued,

That is again consistent with this policy, though this policy is not referring to ‘internal discipline’ and it is not up to SAAS to determine whether or not criminal charges are pursued, that is a matter for police.

Where the photo shows

a speed (above 30kph over a posted speed limit, but below the internal SAAS speed threshold for justification) or a manner of driving that SAAS considers outside normal expectations for an emergency vehicle.

then the driver will be asked to explain his or her actions.  The policy says that the SAAS team leader and recommend whether or not SAAS should support an application to have the matter withdrawn as well as whether or not as well as whether ‘any further support / actions’ are required. The Team Leader ‘will forward The ENDF to Client Relations. Client Relations will then apply for the notice to be withdrawn.’

This might be an area that reflects the concerns of my original correspondent as it may lead to internal action depending on the reasons given, and here, if the driver agrees that he or she was ‘driving in a manner which could reasonably convict us of driving without due care’ then they may prefer not to give that explanation, for example if the answer is ‘we knew another car from another station was also going to the job and we just wanted to beat them so in effect we were racing’ the driver may prefer not to say that.   That may be an example where the driver choses not to ‘present ‘cap in hand to the executioner’’.  They may prefer to offer no excuse in which case the notice will be issued to them, but they may avoid incriminating themselves in a more serious offence.

Where notices ‘show a speed or a manner of driving that SAAS considers is excessive (above the SAAS internal speed limit threshold for justification) for an emergency vehicle, or three or more “above 30kph” notices in one calendar year’ then the matter will be referred to the Operations Manager who ‘may choose to instigate remedial actions’.  Again that is consistent with my original correspondents comments about internal discipline but note that at this point the driver is not being asked to justify his or her actions or incriminate him or herself.  The matter is being referred to the OM on the basis of the photo evidence and/or the driver’s history.

SAAS has a duty to its staff and the public to ensure ambulance are being driven in a safe way. If the evidence suggests a problem, then it is indeed appropriate for SAAS to consider the circumstances and take ‘remedial actions’ whether they are supportive (for someone who is struggling) or disciplinary for someone who joined the ambulance service because they wanted an excuse to drive fast.  So far nothing objectionable, no provision compelling ‘self incrimination’ and nothing contrary to what was described in the original post as the ‘historical’ position.

What the policy does say is that

The ENDF with cover letter / email will be sent to SAPOL Expiation Notice Branch so that the Manager Expiation Notice Branch can make the determination to withdraw. All other clinical / administrative documentation collated during the review / investigation will be filed with SAAS.

So SAAS is not saying they will send all information to SAPOL, just the ENDF.  If the driver does not want to incriminate him or herself in a more serious matter he or she may put few details on the ENDF.

Similar provisions apply to red light camera detection devices.   Where SAAS can confirm that the driver was responding to an emergency call and entered an intersection at not more than 25km/h, the SAAS will take the matter up with police and the driver ‘will not be required to complete any further paperwork’.

To return to my original post, my correspondent there said

…  historically … when an ambulance vehicle was detected by a road side camera to be committing a traffic offence, South Australia Police (SAPOL) would hand over the traffic infringement notice to South Australian Ambulance Service (SAAS) and they would confirm that the ambulance was appropriately ‘responding’.  After this, enquires would stop and the infringement would be written off. This also typically happened when a camera unit would capture an ambulance driving in manner that could (on face value of a camera’s photo alone) suggest that the ambulance was being driven without due care or attention. It was only in extreme cases (i.e. excessive speeds and alike), that a crew might be internally disciplined but it was very unlikely that criminal charges would be pursued, principally from my understanding, because of a lack of evidence and no incident arising from the drive (i.e. no traffic crash).

I can’t see that the actual policy reflects any change by SAAS.  If the situation fits their defined criteria then they will take it up with SAPOL on the driver’s behalf.  If the situation is outside the parameters or the photos are ambiguous then further explanation is required.  That will no doubt reflect SAPOL’s not unreasonable response that ambulances are not exempt the road rules except as provided for in r 306 so they need some evidence that the requirements of r 306 have been met.  That does not impose the burden of proof on the accused, rather it attributes what we lawyers call an evidentiary burden, that is the accused has to lead some evidence to support their claim (eg the driver says ‘the lights and sirens were, to the best of my knowledge, on’).  The police, on receiving that may well say ‘we can’t prove, beyond reasonable doubt, that those things are not true’ and so the notice is withdrawn.

If we assume that the driver did in fact do all the things required, why would they not say that?  If they don’t explain the position they’re going to get an expiation notice and they’ll either make the representations to police, go to court and ask a magistrate to acquit them, or pay the fine.    Giving an explanation to SAAS and asking them to make representations to SAPOL would seem a more productive use of one’s time and effort.

There is nothing in the policy that I can see that is SAAS demanding information.  They are trying to collect information so that they can make representations to SAPOL and indeed to ensure that policies are being applied, ambulances are being driven with due care, and if a person’s driving is a warning flag of issues in that person’s performance.  Issues like PTSD in emergency services attracts a great deal of attention, if an agency like SAAS tries to ‘not see’ that someone’s actions maybe a problem that is bad for everyone.  But even so there is no ‘demand’, the driver can put as much detail as they want on the ENDF noting that the less detail they put, the less likely it is that the notice will be withdrawn and the more likely it is they will get a notice in their own name that they’ll have to defend or pay.

The previous post, and my comments on it, are only relevant if the driver knows they did the wrong thing. The driver who agrees that he or she was ‘drag racing’ another ambulance or who says “I came to work still hungover and probably still over the limit, I forgot my glasses so couldn’t see properly and I just didn’t see the red light that I went through and nearly collected that group of pre-schoolers”, probably doesn’t want to write that on the ENDF.  If he or she did then they could expect the notice to be withdrawn and a knock on the door from police with more serious charges.  In that case the issue of the privilege against self incrimination is relevant.

But in that case, you may expect other witnesses and when paramedics are registered health professionals, there will be obligations to report impaired performance by colleagues.  The driver who turns up hung-over or drunk should expect that their colleagues will act as will SAAS, but certainly, as a matter of law, they are not required to incriminate themselves.

Conclusion

The actual SAAS policy confirms that in unambiguous cases SAAS will take the issue of traffic infringements up with SAPOL on behalf of the driver.  Where the situation is not clear cut the driver will be asked to provide details because, without them, SAPOL quite rightly are unlikely to withdraw the notice.  This is not demanding that drivers incriminate themselves nor is it unreasonable.

Having said that a driver can chose what he or she writes on the ENDF and is not required to give an explanation that would expose him or her to prosecution for a more serious offence.  But you do have to ask whether someone who is knowingly committing serious traffic offences should be driving an ambulance.

 

 

 

 

 

 


Categories: Researchers

The privilege against self incrimination and South Australia Ambulance

17 January, 2017 - 02:56
WARNING

Since receiving the original email, and posting my thoughts, I have been sent a copy of the actual SAAS policy. I have to say it’s not nearly as draconian as my correspondent described in his original post. It certainly doesn’t refer to legal professional privilege nor does it say that all information given will be passed to police. It does say that in many cases SAAS will respond without referring matters to the driver for example ‘ notices that are sent to SAAS that show a speed (up to 30kph above a posted speed limit) or a manner of driving that SAAS considers within normal expectations for an emergency vehicle’. Even in cases where it appears that the driving was beyond that which might be accepted the SAAS say they will seek information and may still seek to have the matter withdrawn.

In light of the actual policy the discussion, below, is an interesting discussion of the right against self incrimination but as noted, I don’t think the policy is really as described so a SA paramedic who receives a notice should certainly want to read the actual policy rather than rely on what’s written here. The discussion here remains most relevant for the driver who actually thinks he or she was doing the wrong thing.

A driver thinks they were driving without due care and in a manner dangerous to others would be advised to offer to pay the notice, as paying an expiation notice is likely to be a much lower penalty, and cheaper, than being prosecuted and it avoids the issue of having to either lie or make admissions.  A driver who thinks their actions were justified is going to have to explain that to someone. If they don’t give the information to SAAS they’re going to have to make their own application to police to withdraw the notice, go to court or pay the notice. Giving the information to SAAS and getting their help to make representations to police is probably more effective than doing it yourself.

The policy does say 

A driver that is charged has all the rights of any public driver charged with an offence and the staff member would be entitled to seek independent legal representation / assistance prior to answering any of the charge/s. 

That would include getting advice before responding to any SAAS request for information.

The original question and answer

This question relates to procedures for dealing with traffic infringement notices in South Australia.  Today’s correspondent says:

…  historically … when an ambulance vehicle was detected by a road side camera to be committing a traffic offence, South Australia Police (SAPOL) would hand over the traffic infringement notice to South Australian Ambulance Service (SAAS) and they would confirm that the ambulance was appropriately ‘responding’.  After this, enquires would stop and the infringement would be written off. This also typically happened when a camera unit would capture an ambulance driving in manner that could (on face value of a camera’s photo alone) suggest that the ambulance was being driven without due care or attention. It was only in extreme cases (i.e. excessive speeds and alike), that a crew might be internally disciplined but it was very unlikely that criminal charges would be pursued, principally from my understanding, because of a lack of evidence and no incident arising from the drive (i.e. no traffic crash).

However, times have changed. SAAS management, on alleged pressure from SAPOL to better explain our actions, have now introduced policies that requires the driver of the ambulance to disclose additional information in support of SAAS’s claim that they were in fact driving with due care and attention (I.e. dry roads, minimal traffic, well-lit etc). This change in policy has a number of staff concerned for the following reasons;

  1. Right not to self incriminate. If we have been driving in a manner which could reasonably convict us of driving without due care, why would we present ‘cap in hand to the executioner’? Notwithstanding this, if the driving went without incident, could a charge of due care get off the ground based on a photograph alone with the addition of the information we provide? If I was to refuse to give further information to police via my employer, would there be a reasonable chance of conviction?
  2. Right of the employer to demand information from an employee when the employee knows that the employer will provide that information to police as a matter of policy. SAAS informs us that they have sort legal advice (unknown) and from that they say – Legal professional privilege extends to the employee that information given to the employer won’t be handed over to police unless they consider that a breach of their driving policies or the law has taken place.I have a few problems with this… firstly, I thought legal professional privilege only extended to a lawyer that I nominate to represent me. Privilege surely wouldn’t extend to making evidence inadmissible if I provided it to SAAS under the impression that I knew it could fall into the hands of the police.Secondly, for some reason are now casting assertions that I have committed a criminal offence (role reserved for the courts) in which I can be disciplined (using their driver policies). Do I have an obligation to provide my employer with this information even though police might not be interested in pressing criminal charges following its disclosure to them? The reason for giving the information about my driving actions and reasons for my judgements seems so ambiguous. Exactly who am I providing it to?
  3. Finally, like all government services – administrative processes take time and staff can find themselves generally being unable to recall an event. Being presented with a photo of your ambulance speeding past a camera car 3 weeks ago when you have do 30-40 urgent drives since makes it impossible to recall.Do we simply answer with the typically ‘dry roads, clear, no traffic’ or put unable to recall… or do we simply refuse to answer full stop. I’m sure writing lies to cover up a memory loss is also an offence in there somewhere as well.

How would you respond to this policy if you were in my shoes?

The Australian Road Rules are incorporated into the law of South Australia by a regulation that rather unhelpfully is called the Australian Road Rules.  The current, South Australian, version of the rules came into force in 2014, replacing an earlier, 1999 version.     A copy of the 1999 version is not readily available so I can’t comment on whether there was a change in law that changed the practice of SAPOL or SAAS.

Privilege against self incrimination.

The right to refuse to answer incriminating questions is a fundamental part of the common law of Australia:  Azzopardi v R [2001] HCA 25; Petty & Maiden v R [1991] HCA 34; R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1.  The implication is that if a police officer, rather than an officer within SAAS asked the driver of the ambulance to explain the circumstances, that driver would be entitled to refuse to answer those questions.     That means the answer to the question

If we have been driving in a manner which could reasonably convict us of driving without due care, why would we present ‘cap in hand to the executioner’?’

is

If you were properly advised, you wouldn’t.

The next question, to rephrase it slightly, is

If the driving went without incident, could a charge of careless driving (Road Traffic Act 1961 (SA) s 45) or reckless and dangerous driving (s 46) get off the ground based on a photograph alone with the addition of the information we provide?

Answer, yes indeed.  An admission alone can be sufficient to justify a conviction.   A photo may be ambiguous – ie the photo, alone and out of context, may not clearly show that the driver was driving ‘without due care or attention or without reasonable consideration for other persons using the road’ (s 45) or ‘recklessly or at a speed or in a manner which is dangerous to any person’ (s 46) but the admissions by the driver may remove that ambiguity and allow the police to proceed, and a court to convict.

If I was to refuse to give further information to police via my employer, would there be a reasonable chance of conviction?

That would depend on all the other evidence available, eyewitnesses, weather and traffic records, other traffic observed in the photo etc.   The choice of the defendant to remain silent does not mean there cannot be a conviction but it does mean that the accused has not contributed to his or her own conviction.

Legal professional privilege

Legal professional privilege is a privilege that allows people to seek legal advice without fear that what they tell their lawyer will become available to the ‘other side’ (ie it applies in both civil and criminal matters).   In Esso Australia Resources v Commissioner of Taxation [1999] HCA 67; Gleeson CJ, Gaudron And Gummow JJ said (at [35]):

Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court … The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers.

The privilege belongs to the client and only to communication between the client and their lawyer for the dominant purpose of obtaining legal advice.   The client, in this case, is the SAAS.  The client can’t know what happened except by the information from its employees.  It follows that if the client asks an employee to record what happened, and the dominant purpose for doing that is to get legal advice with respect to the client’s position, then privilege would apply.   I would however doubt that this is the case.

The SAAS has received a traffic infringement notice.   It knows that ‘it’ wasn’t the driver and it can identify who the driver was.   To avoid prosecution, SAAS can provide details of the driver (Traffic Act 1961 (SA) s 79B(2)).   It doesn’t need legal advice on that basis and further, the legal advice it would receive would, no doubt, be nominate the driver.

If the SAAS wants to write to police to say that the prosecution should not proceed on the basis that the driver in question was complying with r 306 of the Australian Road Rules, then it may do that and it may seek legal advice on the matter.  In that context, the SAAS wants to know about its legal ‘best interests’ but the best interests of the service may not equate to the best interests of the driver.    If the driver clearly did the ‘wrong thing’ an open and frank disclosure may be best for SAAS, but not for the driver but the lawyer that they get an opinion from is acting for the service, not the driver.

I also query whether the Service is really going to put the driver’s statement before a lawyer for a legal opinion on the matter?   Do they get a lawyer to determine whether it appears an offence has been committed, or does a middle manager make that decision?  If the statement is not put before a lawyer for legal advice, the privilege does not exist.

Finally the privilege belongs to the client (SAAS) so may be waived by the client.   The statement may be obtained from the employee for the purposes of obtaining legal advice and it may be privileged which means SAAS can’t be compelled to reveal what is in that statement, but it doesn’t mean they can’t voluntarily make it available.   My correspondent has said that SAAS promise

… that information given to the employer won’t be handed over to police unless they consider that a breach of their driving policies or the law has taken place.

That suggests that they will voluntarily hand the material to police, and defeats the purpose of the privilege.  The idea, from the driver’s point of view, is you should be able to go to a lawyer and say ‘this is what happened, am I guilty or not?’   And the lawyer tells you.  If the lawyer says ‘on what you have told me, you are guilty and should pay the relevant expiation fee’ (as it’s called in SA) then you have your legal advice.  The lawyer does not then go and tell the police what you said – that’s the point of the privilege – what you told the lawyer, the lawyer cannot tell anyone else.  If SAAS are really saying what my correspondent suggests, then what they are in, in effect saying, is ‘if what you tell us suggests r 306 should apply, we won’t tell police what you said; but if what you tell us suggests you should not enjoy the benefit of that section, then we will tell the police.’   And that is not helpful.  What the driver wants them to do is get legal advice and if the driver’s statement suggests that there has been a ‘breach of their driving policies or the law’ then NOT hand the statement to police, but if it shows that the driver did everything right, hand that on the persuade the police not to proceed.

Do I have an obligation to provide my employer with this information even though police might not be interested in pressing criminal charges following its disclosure to them? 

It’s hard for me to answer that, that is a matter of industrial law.  As a matter of law all employees must obey the reasonable directions of their employer but whether answering questions that may lead to disciplinary action is a ‘reasonable direction’ I don’t know.  Perhaps other lawyers/readers of this blog can answer that question.

Time and being unable to recall an event.

If you are asked by police about an event that you can’t recall there are really only two answers.  Either ‘I can’t recall’ or ‘I don’t wish to answer the question’. Don’t make up answers and don’t lie.  You will get caught out.   So not, don’t ‘simply answer with the typically ‘dry roads, clear, no traffic’’ and don’t make up a story.   If you can’t recall say that or don’t answer the question.

The one golden thread of English (and Australian) Criminal law

The essential rule in a criminal trial was set out in 1935 in the case of Woolmington v DPP [1935] AC 462 where Lord Sankey said:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner … the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

Making assertions that someone has committed a criminal offence is not a role reserved for the courts.  Anyone can make an allegation either to the person alleged to have committed the offence, or to police or other law enforcement agency.  It is the role of the courts to determine whether the allegation is well founded.

If SAAS get a notice from SAPOL that an ambulance vehicle ‘appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of a prescribed offence’ (Traffic Act 1961 (SA) s 79B(2)) then it’s only appropriate that they pass that on.  Whether one thinks that is asserting criminal conduct or not is irrelevant.

If an ambulance vehicle ‘appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of a prescribed offence’ then the SAPOL may issue an ‘expiation notice’.    At first instance that goes to the owner (SAAS) who may ask the police to withdraw the notice, or tell the police who was driving, or both.   No doubt if the police refuse to withdraw the notice, SAAS would then identify who the driver is.    Assuming that the notice comes to the driver, he or she has three sensible options (see also SAPOL, Dealing with a notice (28 August 2014)):

  1. Requestion a review and ask the police to withdraw the notice on the basis that they had an exemption under r 306;
  2. Pay the fine or
  3. Elect to have the matter dealt with in court.

If the police decline to withdraw the notice, then the driver is left with option 2 and 3 above.  If the driver elects to be prosecuted it is the police who must prove that r 306 does not, in all the circumstances, apply.   If all they have is the photo, that is all they have.  If, however, the driver has made admissions to SAAS which SAAS has provided to police, or if the driver made admissions in their request to have the matter set aside then those admissions can be added to the police evidence.

Assuming no admissions have been made, or questions answered and all the police have is the photo.  In that case the driver would want to lead some evidence to suggest that r 306 applies, eg a document to prove that they are (or were at the time) an ambulance paramedic and that they were going to an emergency, eg the relevant case sheets and dispatch logs, but depending on the circumstances they may not want to say anything else.

The final question – How would you respond to this policy if you were in my shoes?

I may have given that away in an earlier post – see Investigating Accidents – Learning or Blaming for NSW SES? (December 10, 2016).  In any event it would depend on the circumstances.  My initial reaction would be to say that all I would want to provide police with is, as mentioned above, dispatch records and the case sheet to show that you were indeed responding to an emergency.     If those records don’t show that, then pay the fine.

I would also want to review the photo before saying anything. If you really were driving with due care and attention, the conditions were in the circumstances safe, and the photo supports that – eg it shows an absence of traffic, that you proceeded through a red light at 3am and that your recorded speed was 20km/h – then point that out.  The sooner you say it the sooner the police may withdraw the matter and if they don’t you can show the court you’ve been telling a consistent story.

If you were been driving in a manner which could reasonably convict you of driving without due care and the photo shows that – eg your recorded speed was 100km/h at 3.15pm outside a primary school on your way to a non-urgent medical transfer, pay the fine.  In more ambiguous cases say as little as possible and leave it to the police to prove their case. If the SAAS policy is really ‘that information given to the employer won’t be handed over to police unless they consider that a breach of their driving policies or the law has taken place’ my response would be to demand to see the photo and then get independent advice from the relevant union or a lawyer before responding in any detail.

 

 

 

 

 

 

 

 


Categories: Researchers

Maximum speed when responding with a trailer in tow, in NSW

16 January, 2017 - 21:13

This question relates to

… the maximum speed at which a trailer can be towed under response conditions SES GLR accredited unit (rule 306). For the purpose of the argument let’s assume that we have level 3 swift water technicians responding to persons trapped by rising floodwater,

The driver is a NSW SES level 3 approved driver (lights & sirens) they are towing a boat on a boat trailer.

At what speed should they respond? One piece of advice that has been obtained is not exceeding the “rated” speed of the trailer, (no rated speed displayed on trailer, possibly contact maker).

Also a similar situation could arise with a vertical rescue unit towing a trailer (with VR gear inside) responding to a call same driver authorisation as the above example.

The reference to rule 306 is a reference to the Road Rules 2014 (NSW) r 306.   This is not a blanket exemption from everything to do with driving.  It is an exemption, to the extent it is an exemption at all, from the other rules listed in the Road Rules 2014 (NSW) and not all the rules relating to driving and vehicles are in the Road Rules 2014.    The Road Rules do contain provisions about towing cars or motorcycles (see for example r 294-3 NSW rule: towing restrictions generally) as well as some provisions about towing trailers.  For example r 294-2 provides that a driver must not tow a trailer or other vehicle

… if the laden weight of the towed vehicle exceeds:

(a) the capacity of the towing attachment fitted to the towing vehicle, or

(b) the maximum laden weight for the towed vehicle.

That says nothing about ‘speed’.

Regulation 21 provides that the maximum speed for a ‘vehicle and  trailer combination with a GCM [Gross Combination Mass] over 4.5 tonnes … is 100 kilometres per hour’.  That appears to be the only relevant speed limit in NSW (see also Road and Maritime Services, Towing (u.d)).

Discussion

If there is a rated speed of the trailer then of course you should not exceed that speed. Remember that the most important road rule is don’t crash and don’t kill anyone.  If there is are ‘persons trapped by rising floodwater’ saving their lives does not justify killing someone else.  And if you crash you’re not going to get there to save their life anyway.   If the trailer has a ‘safe’ speed, exceeding that speed, even if you are lawfully entitled to, would not be exercising ‘reasonable care’.  So if the rated speed of the trailer is 80km/h and the speed limit is 100km/h, you don’t need r 306 to travel at 100km/h but you are not taking reasonable care.  If the rated speed for the trailer is 100km/h and the speed limit is 100km/h, r 306 won’t justify travelling at 110km/h as again you are failing to take ‘reasonable care’.

Remember this case from Victoria – Suspended Jail Sentence for Firefighter Involved in a Fatal Accident (October 24, 2009).  There the driver was travelling under the prescribed speed limit but, according to the sentencing judge, ‘there was an “inescapable inference’’ that [the driver], who knew the truck was top-heavy when filled with water, was driving it ‘‘just too fast’’.

In the context of the question I am considering if the weight, load distribution and recommendations of the trailer and vehicle manufacturer suggest a particular maximum speed then travelling over that speed is ‘just too fast’ regardless of the posted speed limit on the road, or the needs of the people to whom you are responding.

Conclusion

Rule 306 gives some exemptions from the road rules but only when it is safe to do so.  The speed at which you should tow a trailer is a matter of safety.  Driving too fast (taking into account the weight of the trailer, how the load is distributed and recommendations from both the trailer and towing vehicle’s manufacturer), regardless of the posted speed limit, cannot be justified and r 306 will not be relevant.

 

 

 

 

 


Categories: Researchers

4WD Rescue or Recovery

7 January, 2017 - 21:50

This is a long post so I’ve put the relevant questions in bold:

I have a few questions for you regarding the operation of social media organised ‘rescue’ services for off-road enthusiasts. I am not involved in anyway involved with the groups described, nor do I purport to offer such a service.

I’ve been aware of various Facebook groups floating around for a long period in NSW and perhaps other parts of the country that claim to offer ‘rescue’ for stuck off-road 4×4 adventurers. This usually involves requesting help via the Facebook page with their location, to have someone (essentially anyone and/or everyone who responds to the initial request for help) find and pull them out of muddy ruts, swamps, bogs and so on.  As far as I can tell, these groups operate with no financial gain from services rendered.

You can find a couple here, the first one being NSW specific and the second being ‘country wide’:

I have concerns that avid off-road enthusiasts may open many cans of worms if something were to go wrong, especially where these groups claim to offer ‘rescue’ services or seem to operate as a ‘rescue unit’. This seems to contradict quite a few sections of the State Emergency and Rescue Management [SERM] Act 1989 (NSW). I’m unsure of other state legislation equivalent to the SERM Act, though I gather there are similar sections in similar acts.

Most of these off-road ‘rescues’ that I’m aware of seem to be relaxed and non-urgent in nature, which doesn’t strike me as meeting the definition of rescue under s 3 of the SERM Act “the safe removal of persons or domestic animals from actual or threatened danger of physical harm.”   There are undoubtedly instances in off-road touring where danger could be introduced: isolation, extended exposure to extreme temperatures, precariously placed vehicles on a cliff edge and so on.

Where is the line drawn in terms of actual or threatened danger? Could these groups operate legally under the proviso that they don’t assist people subject to “actual or threatened danger” (assuming they then call the relevant authorities)?

Further reading into the SERM Act reveals the following:

“rescue unit” means a unit (comprising a group of persons) which carries out rescue operations for the protection of the public or a section of the public.

Based on this part of s.52, it seems that these Facebook groups (and perhaps groups organised in-person and who meet regularly) are meeting the definition of “rescue unit” for off-road adventurers. Is my interpretation correct?

Section 52 further defines “rescue vehicle” as a

… vehicle that is designed, adapted or equipped for use in rescue work and:

(a) is clearly marked with the word “Rescue”, or

(b) is fitted with warning devices, such as flashing lights or a siren,

or both.

I’ve also noticed that several vehicles have “off-road rescue” clearly written on them (though no red/blue lights or sirens; I’ll give you a break from the Road Rules!), with one group selling stickers that use the word “rescue” in amongst four-wheel drive related terms (see enclosed, I’ve blacked out identifying information which isn’t relevant to the conversation).

My understanding is that most off-road enthusiasts will at least carry a “snatch strap”, an elastic tape like device used by one vehicle for towing another bogged vehicle out of mud or other complication.  Some advanced off-road enthusiasts carry more advanced recovery kit such as an electric winch, ropes, chains, hand winches, high-lift jacks and other gear not dissimilar to what can be found on various off-road equipment providers’ websites, such as: https://www.arb.com.au/products/recovery-equipment/

Some gear, such as an electric winch, is not portable and need to be properly installed on a vehicle. According to s.52, it seems that merely possessing this gear alone does not constitute a ‘rescue vehicle’. That said would applying at least one marking with the word ‘rescue’ such as these stickers to that same vehicle then effectively make it a ‘rescue vehicle’, even if not in the traditional sense? In ‘traditional’ I refer to Fire and Rescue appliances, Volunteer Rescue Association/State Emergency Service appliances and so on?

Can the same be said of that same ‘rescue’ sticker attached on a vehicle, but which only carries a “snatch strap”, still be called a ‘rescue vehicle’?

It seems that these groups, if not complying with the SERM Act, changed their wording to use ‘recovery’ rather than ‘rescue’ would this change their standing under the SERM Act?

Issues of rescue aside, would Good Samaritan provisions in the Civil Liability Act play any part in off-road enthusiasts helping others get out of trouble (not necessarily out of danger)?

First, my correspondent says ‘I’m unsure of other state legislation equivalent to the SERM Act, though I gather there are similar sections in similar acts.’  In fact, the State Emergency and Rescue Management Act 1989 (NSW) is unique to NSW.  I’m not aware of any legislation in any other jurisdiction that regulates ‘rescue’ in the way NSW does.

Where is the line drawn in terms of actual or threatened danger? Could these groups operate legally under the proviso that they don’t assist people subject to “actual or threatened danger” (assuming they then call the relevant authorities)?

The answer to that question is that there is no line.  The Act says what it says. If someone bothered to prosecute one of these organisations for providing an unaccredited rescue unit, and they chose to defend the allegation, a judge would have to make a ruling.  I think the judge could say that this sort of conduct is not the sort of conduct that the Act is aimed at on the basis discussed below.  If the matter was determined at Supreme Court level (or higher) then we’d have a case giving guidance on the ‘line’ but until then, all there is, is an argument.

I would argue that the organisations we are talking about are offering to rescue the vehicle more than the person (though of course they’re related, if the person’s vehicle is stuck, so is the person) and they’re providing a service the Fire and State Emergency Services are unlikely to offer.   If a person has ‘extended exposure to extreme temperatures [or] precariously placed vehicles on a cliff edge’ the ‘rescue’ service will come to get the person, but they are unlikely to take steps to recover the car.  If you ring triple zero and say ‘my car’s stuck but I’m fine’ then I suspect you will not get a fire or SES response.   For that they will say ‘call a tow truck or the local road service organisation’.

It does seem to me that they could make the argument that they are not dealing with the safe removal of a person ‘from actual or threatened danger of physical harm’ rather they are not removing the vehicles, not the person.  If they did say ‘if your vehicle’s about to fall off a cliff – call us’ then they may be sailing to close to the line, but if they say ‘if you’re in physical danger, ring triple zero, but if you’re just bogged and everyone’s safe, call us’ then I don’t think anyone would see that as a breach of the Act.

Do the groups meet the definition of “rescue unit” for off-road adventurers?

I don’t think they do for the reasons given above.  From what I can infer they’re not doing ‘rescue’ as their aim is not to safely remove persons, but safely recover their vehicle.

I agree that simply carrying the various items, even a permanently attached winch does not mean that the vehicle is ‘equipped for use in rescue work’ again given that the intention is salvage of the vehicle, not the sort of work that rescue services do to remove people who at risk of physical harm.   Intention must be relevant, because even a plumber’s truck might be considered ‘equipped’ for use in rescue work given that the tools a plumber has would be useful to help remove a person or animal caught in a drain, but that is not why they carry their kit.  I think the same must be true for people who like off road driving carry kit that can be used to recover their own vehicle and another person’s vehicle.

It seems that these groups, if not complying with the SERM Act, changed their wording to use ‘recovery’ rather than ‘rescue’ would this change their standing under the SERM Act?

The requirement for the offence under s 53 is that the vehicle is both ‘designed, adapted or equipped for use in rescue work’ AND has the word ‘rescue’ on it.  If the words ‘rescue’ are on a vehicle that is neither ‘designed, adapted or equipped for use in rescue work’ then the offence is not made out.  If my argument, above, is correct then the use of the word ‘rescue’ on the stickers doesn’t convert the vehicle to a ‘rescue’ vehicle.

Further one would have to consider whether a car that has the sort of stickers shown here, is ‘clearly marked with the word “Rescue”’.

Even so, I do note that it is not my job to give legal advice to these organisations, but I do agree that the situation would be much clearer if they used the word ‘recovery’ rather than ‘rescue’.

Issues of rescue aside, would Good Samaritan provisions in the Civil Liability Act play any part in off-road enthusiasts helping others get out of trouble (not necessarily out of danger)?

The good Samaritan provisions of the Civil Liability Act 2002 (NSW) would have no application. Those provisions are limited to people ‘assisting a person who is apparently injured or at risk of being injured’ (s 57(1)).  In other states’ the legislation is even more explicit that the aim of those sections is about first aid, not vehicle recovery.   The good Samaritan provisions will apply if, when they get there, they find the person is injured or unwell and they act, but they have no application to the action in recovering the car.


Categories: Researchers

Training in emergency driving procedures.

7 January, 2017 - 21:14

Following my earlier post – Council Lifesavers and Accreditation under the State Emergency And Rescue Management Act 1989 (NSW) (January 7, 2017) a commentator said ‘a competency course is required for anyone who drives a vehicle classed as an emergency vehicle. This certification is required by police, ambulance and fire brigades.’    This question specifically deals with that issue.  This correspondent says:

I’m writing to you this afternoon in relation to a question on the requirement for state government organisations to provide adequate training in emergency driving procedures.

Currently in NSW the only organisation that has a formal driver training program is the NSW Police Force.

I am an emergency vehicle driver for the Newborn and Paediatric Emergency Transport Service. We have constantly asked for advanced driver training in relation to driving under lights and sirens but to-date have been ignored.

There is no specific obligation to provide driving training in emergency procedures that is there is no special licence that requires training and the passing of a relevant competency test.  In other words, a licence to drive an emergency vehicle does not exist like a licence to drive a heavy vehicle (see Learning to Drive a Heavy Vehicle in NSW (November 2, 2016)).

An obligation to provide driver training can be implied in the Work Health and Safety Act 2011 (NSW). That Act requires a Person Conducting a Business or Undertaking (the ‘PCBU’) to undertake a risk assessment and there is no doubt driving a vehicle under emergency conditions is a high risk activity.

The primary duty of the PCBU is to ‘ensure, so far as is reasonably practicable, the health and safety of’ workers and those affected by the business or undertaking (s 19(1)).  One of the things the PCBU is to do is to ‘ensure, so far as is reasonably practicable … the provision of any … training, [or] instruction … that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking’ (s 19(3)(f)).

If the employees identify that emergency driving gives rise to risks to their health and safety, and also risks to others, then it is appropriate to trigger the consultation mechanisms in the WHS Act, including raising matters with Health and Safety Representatives (ss 50-74), Health and Safety Committees (ss 75-79) or relevant trade unions (ss 116-151) to encourage the PCBU to consider and if necessary introduce relevant training or instruction.

 

 


Categories: Researchers

Council lifesavers and accreditation under the State Emergency and Rescue Management Act 1989 (NSW)

7 January, 2017 - 03:31

This question comes from someone involved with a council operated life saving  service who says that the

… Council provides a Lifeguard Service 7 days a week, 365 days a year, and provides an after-hours response to NSW Police and NSW Ambulance if required;

The Lifeguard Unit has two ‘emergency response’ vehicles, fitted with Red lights and sirens as per RMS Vehicle Standards VSI 8, and the vehicles are marked in Red and White chequers with fluro orange and yellow with the Council insignia and LIFEGUARD markings.

Lifeguards are regularly requested due to our proximity to respond to missing swimmers, surfers, kayakers, overturned boats etc. Our Lifeguard Headquarters is based at XXX and our Jet ski is based at XXXX some 2klm away. During summer the response with traffic in this busy coastal area can take up to 15 minutes to travel to the jet ski base.

At present we utilise lights and sirens when we encounter these traffic conditions and apply Rule 307 ARR [I actually think that means r 306 of the Road Rules 2014 (NSW) as r 307 relates to parking], when an emergency arises and when reasonable to do so.

Under the provisions of s53 STATE EMERGENCY AND RESCUE MANAGEMENT ACT 1989, there is an exemption provided under 3(a) A rescue unit is not required to be accredited:

(a)    if it is a unit only engaged in surf life-saving

However, section 2(a) A rescue unit is required to be accredited even though: it is a unit of the NSW Police Force, Fire and Rescue NSW, the Ambulance Service of NSW, the State Emergency Service or any other government agency,

My question relates to what takes precedence, the fact that Sutherland Shire Council is defined as any other ‘government agency’ or does the exemption apply as the Lifeguards are responding to Surf Life Saving based rescues?

My interpretation has been that if directed by NSW Police or Marine Command to attend to overturned boats is under the direction of NSW Police or NSW Ambulance, and if responding to the jet ski base to assist in surf rescue that ARR307 would apply.

This question is really in two parts, it’s about accreditation under the SERM Act, and the Road Rules 2014 (NSW).

The State Emergency and Rescue Management Act 1989 (NSW) – accredited Rescue Units

This Act says, at s 53(1) ‘A person who establishes, manages or controls a rescue unit which is not accredited under this Division is guilty of an offence’.  As my correspondent has noted, s 53 goes onto say:

(2)       A rescue unit is required to be accredited even though:

(a)       it is a unit of the NSW Police Force, Fire and Rescue NSW, the Ambulance Service of NSW, the State Emergency Service or any other government agency…

(3)       A rescue unit is not required to be accredited:

(a)       if it is a unit only engaged in surf lifesaving…

One needs to consider the sort of accreditation given by the State Rescue Board.  Units are accredited in General Land Rescue, Specialist Land Rescue and Maritime Rescue (see State Rescue Board, Rescue Arrangements in NSW (2017)).     Section 53(2) is saying that if one is going to engage in that sort of work then accreditation is required.  Section 53(3) is saying that organisations like a volunteer surf patrol does not require accreditation.

The general rule of statutory interpretation is that a specific provision such as s 53(3)(a) will take priority over a general provision, such as s 53(2)(a) so that if this council ‘unit’ is ‘only engaged in surf lifesaving’ then accreditation is not required.  The fact that they are called out to assist police and ambulance does not change that position.  NSW police are responsible for coordinating rescue (s 50) and they can call on resources other than accredited rescue units (state rescue policy) so if the police want to call on this team because they have specific skills that can be used, they can do so.    Equally NSW Ambulance can call from assistance from anyone they want to.

If however the lifeguard’s patrol, on their own initiative, river beaches and waterways and provide an emergency response to boats in distress, one might question whether they are ‘only engaged in surf lifesaving’.  If it came to be tested, if by some bizarre circumstances someone launched a prosecution for maintaining an unaccredited maritime rescue unit, then it would be up to a court to determine what the intention and purpose of the service was.  If it was intended to be a surf lifesaving unit, but occasionally did these extra duties at the request of the other services, s 53 (3) would apply.  It the reality was that it was more than that and the unit was regularly engaged in rescues at places other than surf beaches (and perhaps was equipped and trained for these other tasks) then it might appear it is not ‘only engaged in surf lifesaving’ in which case accreditation would be required.

The question for a court would be “is the work of responding to missing swimmers, surfers, kayakers, overturned boats etc’ really incidental to the surf lifesaving function or is it an equal or ‘core’ function?”

Road Rules 2014 (NSW)

The other question relates to the road rules.  We’re told that the vehicles are equipped with red lights and sirens and I’ll assume that all the relevant permissions from RMS have been obtained to allow that to happen, and the drivers have been proclaimed to be ‘emergency workers’ for the purposes of the Road Rules 2014 (NSW).    If that’s the case and the crew are responding to an ‘emergency’ and it’s reasonable to be given an exemption and they are taking reasonable care, then yes, r 306 will apply.

If there has been no permission from RMS to install the red lights or sirens or if the team aren’t proclaimed to be emergency workers, then a direction from NSW Police or NSW Ambulance isn’t sufficient to trigger r 306.  It’s RMS that gets to say who has red lights and sirens and who is an emergency worker for the purposes of the Road Rules, not the police.

 


Categories: Researchers

NSW premises made unsafe by storm – obligations of the SES

7 January, 2017 - 03:14

This question comes from a volunteer with NSW SES who has been involved in responding to recent requests for assistance following storm damage.  In one case

… a falling tree had done substantial damage to the roof of a single story house. Due to the lateness of the call, the amount of jobs we had previously completed, the proximity to Christmas and the complexity of the job, we decided to refer the tree to professionals who could not complete the job until about 4 days later (after Christmas.)

While inside the house, we made an assessment that there was structural damage to one room and, after conducting a check for asbestos we decided to no longer enter the house for our own safety.

We had a discussion with the landlady about the structural damage and advised her in a strictly non-professional manner that it was probably ill advised to have the tenants re-enter the house until it had been assessed by an engineer or whoever her insurer wanted to use. We also advised her we had taped over the entrances to the house with SES tape to preserve public safety but that we had no legal powers to require her or her tenants not to enter (she questioned this specifically.)

So my question is: do we hold any liability in the event of secondary collapse and did we have an obligation to pass the structural damage to another agency? The landlady was very reasonable, or so it seemed, but if she wasn’t then she might have refused to offer the tenants alternative accommodation and they may have ended up staying and potentially being injured in a secondary collapse – which is where I see potential liability.

Would it change the answer if we had not taped the area, or if we hadn’t given her any advice regarding the structure?

The team that attended was composed of 6 experienced GLR operators and we’ve all done our USAR [Urban Search And Rescue] upgrade. Does that mean that we have some sort of specialist knowledge and would that impact the answer?

There are several questions here and the starting point is to remember that one is only responsible for things that you are responsible for – that’s cryptic so let’s explore that in more detail by breaking this into separate questions.

First, do we hold any liability in the event of secondary collapse and did we have an obligation to pass the structural damage to another agency?

The State Emergency Service Act 1989 (NSW) s 8 says that the functions of the SES include:

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

(a) …

(b) to act as the combat agency for damage control for storms and to coordinate the evacuation and welfare of affected communities …

The problem with this definition, and the Act generally, is that it gives no guidance on the limits of the SES responsibility.  If people are not protected, that is if someone suffers loss or damage, or injury or death, due to a storm, flood or tsunami, it can’t be that the SES has failed to perform its functions.  For example, putting hurricane rated roofs on every NSW property would ‘protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from … storms’ and so be consistent with the functions set out in s 8(1)(aa) but no-one would seriously argue that there is an obligation upon the SES to do that.   So what is the SES to do to meet its obligations under s 8(1)(aa)?  The answer must be that the SES has to do whatever it thinks appropriate but I would suggest no court would ever accept that s 8(1)(aa) imposes a legal duty upon the SES.  It is merely a description of the parliament’s intention of what the SES is to do, rather than a section intended to give rise to legal rights – see FRNSW and what does it mean to ‘proceed with all speed’? (October 6, 2015).

Equally the response role (s 8(1)(b)) does not explain what the SES is to do.  The obligation to Act as a ‘combat agency’ won’t give rise to a duty to be enforced by an aggrieved person.    We can draw an analogy with NSW Fire and Rescue.   Having put a fire out, the fire brigade are under no obligation to repair the house, and although they have the power to render the premises safe (which they can do by either shoring it up or even knocking it down; Fire Brigades Act 1989 (NSW) s 17) it’s unlikely they would be liable for failing to do so in particular if they can demonstrate that they thought about it and came to ‘good faith’ conclusion that such action wasn’t necessary (Fire Brigades Act 1989 (NSW) s 78).  Equally, the SES has some power to make premises safe from immediate danger and to that end the Commissioner may, during the response to an emergency caused by a flood or storm (ss 19 and 20), take possession of, and remove or destroy anything in an emergency area or ‘part of an emergency area that may be dangerous to life or property’ (s 22A(c)).

Further, it’s not actually true that the SES has ‘no legal powers to require [the tenants or owner] not to enter’ unsafe premises.  Where the emergency is caused by a storm, the Commissioner or an authorised emergency officer may ‘direct, a person … to leave any particular premises and to move out of an emergency area or any part of an emergency area’ (s 22(1)).   Just because the Commissioner ‘may’ do these things (ss 22 and 22A) does not, however, mean that the Commissioner or the SES will be liable if those actions are not taken. The presence of a discretionary power (‘may’) does not give rise to a legal duty to exercise that power.

Where the emergency services have been found to be under a duty of care to those affected by an emergency, it is generally limited to a duty not to make the situation worse, not to make it better (see Liability for Fire – A Review Of Earlier Posts (January 8, 2016)).   Imagine a storm and a leaking roof.  The fact that a person has rung the SES doesn’t make the SES liable for any damage that occurs between the time of the phone call and the time of the response even if that response time is measured in days rather than minutes.    The SES only has limited resources and has to prioritise the responses it receives, whether that’s by some triage process or on a simple ‘first come first served’ basis.   If the SES does turn up and tarps the roof, but does it in such a way that water still gets in, it’s hard to see any liability there either.  The SES didn’t actually cause the damage to the roof.   As with fire brigades I would think the extent of the duty (if any) is not to make the situation worse.  At the end of the day, damage to the property is the property owner’s problem.

In the brief scenario given I can’t see how the actions of the SES has made the situation worse.  My answer to the first question ‘do we hold any liability in the event of secondary collapse and did we have an obligation to pass the structural damage to another agency’ is, unless the SES increased the risk or made the situation worse, no.

Second, what if the landlady was NOT very reasonable and ‘refused to offer the tenants alternative accommodation and they may have ended up staying and potentially being injured in a secondary collapse’?

The relationship between the landlord and tenant is one based on contract and the terms of their lease.   Generally speaking it is the landlord’s duty to provide premises that are safe and habitable.   Whether there would be an obligation upon the landlord to provide alternative accommodation, or simply to terminate the lease on the basis of ‘frustration’ (ie the lease is frustrated if the premises are no longer habitable) would depend on the terms of the lease and the nature of the damage.  Fundamentally, however, it is not the SES’ job to protect tenants from the landlord.

The situation may be different if the SES didn’t warn the landlord of their concerns, or more importantly, gave a positive assurance that the premises were indeed safe (see Liability for Advice on Dangerous Trees (June 13, 2016)) but that was not the case here (and for further discussion on this point, see below).  Where the SES members express their concerns – which were sufficiently serious that the SES refused to enter the premises – then the obligations between landlord and tenant are a matter for the landlord and tenant.   If that were not the case you might get a situation where the SES turns up to damaged property and put a tarp on and leave it at that because the landlord is willing to pay for the tenant’s hotel until the job is repaired, and on another job the SES would end up paying for out of hours trades to come and fix the premises because the landlord refuses to take action and the tenants have no where to go.  It can’t be the law that the decision of the landlord imposes a duty on the SES.

Would it change the answer if we had not taped the area, or if we hadn’t given her any advice regarding the structure?

I think it might if the danger was obvious to the SES and it was clear that the occupants and/or owner didn’t appreciate the danger or were going to act in a hazardous way.  In that case the SES is not responsible for other’s actions but they are responsible for their own, so they are responsible for not sharing their opinion.   If the SES gave a positive assurance that the premises were indeed safe and that it was OK to move back in, it could even be that the SES actions made the situation ‘worse’ particularly if it was clear that the landlord or tenant was relying on the SES advice.  For example, if the landlord said ‘I’ll put the tenants up in a hotel and I’ll get my repairer to look at the premises next week’ and the SES members said ‘no need for that, we’ve made it safe, it will be fine’ so that the landlord and tenants agreed that they will stay in the premises, that then fall down it could be argued that the assurance of safety actually increased the risk and most readers would probably think that no reasonable member of the SES would give advice in those terms.  And if that’s the case, that’s the test for ‘negligence’.

That’s not to say that an overcautious response is called for – ie warn every occupant of a storm damaged house to leave until engineers have inspected it.  The obligation (if there is one) is to act ‘reasonably’ and remember that the occupants are ultimately responsible for the damage and for their own well being.  It’s not the case that the SES are getting sued in these sort of situations and it’s not likely that they will be so it’s not appropriate to make decisions designed to ‘cover your backside’ rather than reflecting a genuine belief in what’s required.

The team that attended was composed of 6 experienced GLR operators and we’ve all done our USAR [Urban Search And Rescue] upgrade. Does that mean that we have some sort of specialist knowledge and would that impact the answer?

It does mean you have more knowledge than someone who hasn’t done the USAR training but I don’t see it affects the answer.  If you think the premises are dangerous you warn the occupants and there’s not much more you can do. If the USAR training means you see danger where perhaps others may not then so be it.

What’s an ‘emergency’?

This is not a question my correspondent asked but it is raised by this discussion and also in the various discussions about the road rules.   As noted above there are powers to compel evacuation and to render premises safe in an emergency.  Is a tree on a house an ‘emergency’?

‘Emergency’ is not defined in the SES Act but words in the SES Act ‘have the same meanings as in the State Emergency and Rescue Management Act 1989, except in so far as the context or subject matter otherwise indicates or requires (State Emergency Service Act 1989 (NSW) s 3).     It follows that the definition of ‘emergency’ in the SES Act is the definition found in the SERM Act.  The SERM Act defines an ‘emergency’ (s 4(1)) as

… an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:

(a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or

(b) destroys or damages, or threatens to destroy or damage, property in the State,

being an emergency which requires a significant and coordinated response.

This begs the question of what is ‘a significant and coordinated response’.  On one view a response that involves a single unit, whether it’s a fire appliance, an SES team or an ambulance is not ‘coordinated’, they just work by themselves.  On another view, any such response is both significant and coordinated.  It’s significant because of the resources that are involved in setting up and training a fire crew, SES crew or team of paramedics. Further it’s coordinated as even a single vehicle response requires the relevant ComCen to be aware of who is going, and being prepared to back them up and otherwise fill gaps left by their response.  When the ComCen dispatches a fire crew, ambulance or SES unit there is a degree of coordination going on.  And for the person with chest pain, or a person who calls the SES for a tree on their roof, it’s their emergency even if it’s ‘business as normal’ for the response service.

A tree on a roof, or a house fire, or a multi vehicle car accident is certainly not the sort of emergency that will trigger the State Emergency Response Plan or even activate the Local Emergency Operations Controller (LEOCON) but that is not the test for what is, or is not, an ‘emergency’.  It would be my view that any response to a triple zero call, at least, is an ‘emergency response’ because the response by a fire brigade or ambulance service is significant and coordinated and the reason they are a triple zero service is because they are there to respond to events that without a timely response can lead to death and/or widespread property damage.    Equally the response by the SES to rescues, including flood rescue, would be an emergency response.  I’m not sure about a response to a tree on a roof, even if it’s a ‘significant and coordinated’ response a tree on a roof has already done the damage and the SES isn’t under an obligation to make good the damage done by a storm, any more than a fire brigade is under an obligation to make good the damage done by fire.    And a fire brigade going to inspect a fire ground where the fire has been extinguished is not going to an emergency.   The fire brigade are there to put the fire out – to remove the hazard.  Having done that it’s the property owner’s problem.  It may be an emergency response for the SES to go to stop a tree falling on a house, but once it’s fallen, the emergency is over.

A final word

Like most of discussions on this blog, it’s all very interesting from a theoretical perspective but not really a problem.   Remember the emergency services are not regularly sued over their response.  In the situation described the damage done to the building was done by the storm.  If there is a further collapse that is also caused by the storm.  It’s only if the SES made the situation worse that it could be said to be caused by the SES.  If the SES take control of the premises and, say knock it down (relying on s 22A) then any damage is deemed to be damage caused by the storm (s 25A).  Further the SES and its members are not liable for ‘good faith’ decisions (s 25) so if they, in good faith, determine that the premises were rendered safe by taping it up and warning the landlord, there can’t be liability for not taking further action such as ordering an evacuation or knocking the building down.

Conclusion

The only way I could see liability in the scenario described would be if the SES positively assured the home owner that the house was safe and not going to fall down in circumstances where it was obvious that the occupants were relying on the advice of the SES.   In most cases, if people were to ask ‘is it safe’ the SES would say something like ‘we’ve done what we can to stop the rain coming in but we don’t know what damage the tree has actually done to the structure of the house’.    And in this case where the SES has made a decision that the premises are too unsafe for the SES to enter, then communicating that seems reasonable.  What people do in response to that advice is a matter for them.


Categories: Researchers

When is a member of the emergency services an ‘emergency worker’ for the purpose of the Road Rules 2014 (NSW)?

5 January, 2017 - 16:36

Yesterday’s post – No Special Speed Zones When Passing Emergency Service Vehicles Except in South Australia (January 4, 2017) – has inspired a NSW RFS volunteer to write:

There are a number of definitions of emergency worker and these definitions are used in other legislative provisions.  My interest is as an officer of a Rural Fire Brigade in NSW, but I suspect that the issues apply to other emergency services in NSW and other jurisdictions.

For example, the rule 306 of NSW Road Rules 2014 provides exemptions from other provisions of the Road Rules for drivers of emergency vehicles.  Rule 307 similarly provides exemptions from parking and stopping rules in those Road Rules.  Both of these rules apply to a “driver of an emergency vehicle”.  Emergency vehicle is a defined term and means “any vehicle driven by a person who is an emergency worker, and driving the vehicle in the course of his or her duties as an emergency worker”.  Emergency worker is also a defined term and means (relevantly for the RFS) “a member of a fire or rescue service operated by a NSW Government agency … providing transport in the course of an emergency”.

Additionally, I note that NSW RMS Vehicle standards information VSI 8 provides:

“The use of blue, or blue and red flashing lights is intended to advise other road users that the vehicle displaying them is responding to an emergency situation. They must only be used when the vehicle is being used for police operational functions or urgent purposes arising from an accident, fire or other emergency.”

So it appears to me that the following situations arise as a consequence of these definitions:

  1. Only vehicles going to an incident while it is still an emergency can “respond” (ie with lights and/or siren and the benefit of rule 306) and additional crews “proceed” (ie without lights and/or siren and complying with all the road rules). In my experience, this is well understood and applied – generally only one or two RFS vehicles will “respond” to a small incident with subsequent vehicles “proceeding”;
  2. Those subsequent vehicles, and probably the original vehicles from the time the incident is “contained”, no longer have the benefit of rules 306 and 307 and therefore need to comply with all of the road rules, including needing to be parked legally, and turn off flashing lights;
  3. There is no clear exemption from Part 14 of the Road Rules (Rules for Pedestrians), for emergency services personnel (unless the exemptions for drivers still apply when the driver is on foot, in which case the driver could legally walk in a no pedestrian area and other crew members could not).
  4. If the same definitions of emergency vehicle and emergency worker applied in South Australia, what would be in impact on the reduced speed limits in “emergency service speed zones” if as soon as an incident is no longer an emergency, the vehicle is no longer an emergency vehicle and can no longer display flashing lights?
  5. Finally, I relate this to the unfortunate situation of the F3 where an RFS vehicle was moving from one completed incident to another to collect its crew and was involved in a fatal accident. Given the second incident was no longer an emergency, would it have been legal for the RFS vehicle to have parked on the edge of the freeway (in a no standing or no stopping zone) to collect crew and equipment? Would displaying red/blue flashing lights been legal or made any difference to the legality of stopping on/beside the freeway?

I don’t think there is any fundamental flaw in the reading, the flaw is in the absence of a definition of what constitutes an emergency for the Australian Road Rules and the Road Rules 2014 (NSW) in particular.

In the case of the RFS driver convicted of negligently driving causing death, the trial judge looked to the definition of emergency in the State Emergency and Rescue Management Act 1989 (NSW).  I have argued elsewhere that I don’t think that can be the relevant definition of ‘emergency’ for the purposes of the Road Rules – see RFS Response to Volunteer’s Conviction for Fatal Traffic Accident (October 13, 2016).  In that case, however, the judge didn’t really need to define ‘emergency’ as whatever definition one used, this wasn’t one.   Even if the judge was prepared to infer that there had been an emergency on the first response, at the time of returning to collect the crew ‘there was no emergency, or even urgency…’

The essential issue of an emergency must be a threat to life, property or the environment where time is of the essence in the response.    Further definition is harder to come too so it must, to a large extent, be up to the emergency services to determine when ‘response’ driving is warranted – see Road Traffic Exemption – Who Determines if it is Reasonable That the Provision Should Not Apply? (May 22, 2016).

Implications

1)         Point 1, above appears well founded.  Assume there is a triple zero call and the fire brigade respond.  It’s up to the first attending brigade to report back to the ComCen on the state of the fire, if further resources are required, but time is not of the essence (and one has to ask how much time is saved by response driving – particularly in country areas) then there is no need for further units to ‘respond’.     If time is critical and it will make a difference to the response time, then presumably it’s still an emergency.

2)         Point 2 is more controversial.   Assume the RFS is at the scene of a grass fire that does not poses a threat to property (other than the grass) but the brigade have to fight the fire else it may well develop into a significant threat.  Is that an emergency?  In one sense it’s not, perhaps the further or relieving crews can simply proceed to the scene and there’s no reason to invoke rule 306.  But if rule 307 didn’t apply then they couldn’t park near the scene to actually stop a fire becoming an emergency.

I think the answer here lies in the requirement in both rule 306 and rule 307 that the exemption only applies ‘it is reasonable that the rule should not apply’ (r 306(a)(ii) and r 307(1)(b)).     So a judge could come to the conclusion that the grass fire is an ‘emergency’ but given time is not of the essence it is not ‘reasonable’ to apply the exemption contained in r 306  But it might be reasonable to give the driver the exemption from the parking rules.  In other words an emergency may be an emergency that justifies illegal parking, but not response driving.

3)         As for point 3 there is an exemption for pedestrians.  Rule 308 says:

A provision in Part 14 does not apply to a police officer or emergency worker acting in the course of his or her duty if, in the circumstances:

(a) the police officer or emergency worker is taking reasonable care, and

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

Part 14 is ‘Rules for Pedestrians’.  If an emergency worker is ‘providing transport in the course of an emergency’ then I don’t think that’s limited to the driver.  The emergency worker who is walking is transporting him or herself and whatever kit they are carrying.

4)         For what it’s worth, an emergency worker, in South Australia, includes ‘members of an emergency services organisation within the meaning of the Fire and Emergency Services Act 2005’ (Road Traffic (Road Rules–Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) r 54) so a member of the CFS is an ‘emergency worker’ whether there’s an emergency or not, so the issues being discussed here don’t arise in that jurisdiction.

5)         It would not be legal for an RFS vehicle to have parked on the edge of the freeway (in a no standing or no stopping zone) to collect crew and equipment in the absence of an emergency.  It might be convenient but that doesn’t make it legal as a taxi driver, who cannot refuse a fare, will no doubt discover when they stop to pick up or drop off their passengers.  In the fire context, it might be argued that the presence of the crew itself constitutes an ‘emergency’ given they are at risk by being on the road side.  There is also the doctrine of necessity, a common law rule that says that it can be permissible to break the law in order to avoid a greater harm and the actions are proportionate to the given risk.  So asking the crew to try to get somewhere where the appliance may lawfully stop may be a greater risk than picking them up where they are.

Some reflections

The definition, particularly in NSW, is rather unhelpful because the status of a person and a vehicle changes.  People are an ‘emergency worker’ or driving an ‘emergency vehicle’ only where there is an undefined emergency.   This leaves much scope for debate.  It would be better if the definition defined an emergency worker by reference to his or her membership of an organisation.  That would not give carte blanche to ignore the road rules because the other provisions of r 306 and r 307, namely that the driver has to be taking reasonable care and it has to be reasonable in the circumstances that the exemption applies, would still be the law.  It would however avoid the theoretical possibilities discussed above.

The real impact, in my view, of these rules is not in the protection they give the emergency services but the protection they give the police.    The police can’t have an approach of ‘we let the firies off because they’re good people’, rather we are governed by ‘the rule of law’: ‘Be you ever so high, the law is above you’ (see “Tom Bingham, The Rule of Law”). That includes the driver of an emergency service vehicle who is bound by the law as much as anyone. The reason police, fire fighters and paramedics can drive contrary to the road rules is not because they are exempt from the law, but because there are specific laws to allow them to do those things, but they must comply with that law – this is fundamental to the issue of the rule of law.

The presence of rr 306 and 307 means that a police officer who sees a fire appliance at the side of the road whilst the crew are fighting the fire can say to anyone who asks ‘they’re allowed to do that’, but that same officer, who thinks it’s not safe or they don’t need to be where they are can direct them to move the vehicle or issue a ticket.

The same for a judge.  If the judge, looking at all the facts, thinks that what the driver did was reasonable he or she can acquit them and point to the law as justifying that conclusion.   I think that’s what would happen in the scenarios above, if on all the facts, a police officer or judge thought the actions of the emergency worker were justified either in parking by the side of the road or crossing the road against a red ‘don’t walk’ light they can take no action and justify that to the community as being consistent with the law, not just a decision on a whim.    And if they do issue an infringement notice, the person who receives it has an opportunity to challenge that decision and make an argument that is more than just ‘but this is silly’. They can actually point to the law.

Ultimately these clauses are very, and I would say deliberately, imprecise to give flexibility to the RFS (and other emergency services) the police and the courts. If, in all the circumstances, the way the vehicle is driven, or parked, is reasonable then the police and courts can ‘let you off’ not on the basis of hidden discretion but because the law says they can; if it is not reasonable then you can still get a ticket.

The issue really becomes when are the police going to issue a ticket?  One circumstance will be automatic detection devices (red light and speed cameras) that will ‘ping’ an emergency service vehicle and may require the driver to address the issues in r 306.  But again, because it’s the law, if the driver can show that the circumstances prescribed by the rule apply, they are entitled to have any allegation withdrawn, it’s not merely a matter of the police ‘turning a blind eye’ but applying the law.

The most likely time issues will arise is when there is an accident.  It reinforces the rule of thumb said before, both by me and commentators on this blog – the most important rule is don’t crash.  If you crash your fire appliance, or someone runs into it when you’re fighting a fire (given the RFS could choose to close the road (Rural Fires Act 1987 (NSW) s 24) that’s when difficulties are most likely to arise because once there has been an accident it’s very difficult (but, granted, not impossible) to argue that the driver was taking reasonable care, because, if they were, the accident wouldn’t have happened.


Categories: Researchers

No special speed zones when passing emergency service vehicles except in South Australia

4 January, 2017 - 16:15

I received this question from a correspondent who came across my blog through

…  Google (of course), after a fairly fruitless effort on my part to find out actual legislation/law/legal requirement for the speed limit when driving past accident scenes. From what I gather, your site isn’t geared for civilian advice, but it seems you might know where to look better than I seem to be able to. My searches give me “pull over and let emergency services vehicles have right of way” for the most part.

A post I came across on Facebook, originating from South Australia, says SA has implemented a flat rate 25kph when civilian vehicles are passing a scene in which there are stationary emergency service vehicles. Google verified this on government web sites.

I did some research trying to find out if the remaining states and territories ALSO have this rule. The best I could find were two articles from April for Victoria, and July for Tasmania that says speed limits when passing a scene *might* be implemented. I’ve looked in QLD, NT and WA road rules hand books, and can find no mention of this. Tasmania goes so far as to say to slow down to 40kph when there are flashing *yellow* lights (on school buses/school crossings), but nothing for red and blue flashing lights.

I haven’t given up yet. I haven’t ruled out emailing the various Transport Departments individually to gather this information.

Is this information something you can come up with? Is it worthy of a post (so Google searches can find it)?

My site is for answering questions about the law and Australia’s emergency services and emergency management. It is not ‘intended’ only for members of the emergency services (though I have no doubt they are the largest group of readers).   The law applies to and affects everyone, whether they are responders, interested citizens or those that have or will be affected by an emergency or call on the emergency services.  So the advice I give is advice on the law, not advice for ‘responders’ or ‘civilians’ but anyone who wants to ask.

Now to the point:

South Australia is the only jurisdiction that has a special speed limit when passing emergency vehicles (rather than an accident scene) – see ‘Emergency Service Speed Zones’ in SA from 1 September (March 21, 2014).    No other state or territory has followed SA’s lead and implemented an accident or ‘emergency service speed zone’. The reason my correspondent hasn’t been able to find ‘actual legislation/law/legal requirement for the speed limit when driving past accident scenes’ in the other jurisdictions is because there isn’t anything to find.

For the actual legislation in South Australia see the Road Traffic Act 1961 (SA) s 83.


Categories: Researchers

2016 in review

4 January, 2017 - 15:56

In previous years WordPress has produced an automatic report at the end of each year.  This hasn’t happened for 2016 so I’ll have to write my own.

In 2016 this blog had:

  • 160 posts and
  • 103 999 visitors who viewed
  • 178 056 pages and made
  • 441 comments (including my own comments in reply).

In the life of the blog there have been 669 posts which means that 160/669 or 24% of all the posts on this blog were made in 2016.

The five most popular pages were:

  • Home page/archives (30 988 views);
  • The CFA Enterprise Bargaining Dispute (4 659);
  • Good Samaritan Legislation and scope of practice (3 780);
  • Australian Road Rules and emergency vehicles (3 318); and
  • RFS Firefighter Sentenced Over Fatal Collision (2 736).

The most popular day, ever (ie since the blog began in January 2009) was 5 December 2016 when there were 2476 views.   On that day, I put up two posts, they were:

  • New Bushfire Legislation in the Northern Territory; and
  • RFS Firefighter Sentenced Over Fatal Collision.

 The top 5 countries for visitors were:

  • Australia (165, 195);
  • The USA (5 241);
  • The United Kingdom (1 666);
  • New Zealand (965); and
  • Canada (716).

That’s a big year!

 

 

 

 

 

 

 

 

 

 

 


Categories: Researchers

Is there any obligation to implement recommendations from post event inquiries?

2 January, 2017 - 16:27

These questions come from a member of one of Queensland’s emergency services:

  1. Could you please advise if there is any obligation by a government/agency/department to implement findings (recommendations) from an inquiry? Or are they just that … recommendations.
  2. Are the entities still empowered with the responsibility and still obligated to act when State governments have changed and agencies and departments have had corporate restructures and name changes? Would the current government or entity still be charged with the responsibility to implement this change if they hadn’t been completed?

    As an example, following the 2011 Flood inquiry the government’s reply delegated responsibility to oversee change to entities that no longer exist (Emergency Management Qld – EMQ – is now called EM and is a service within QFES, the Department of Community Safety – DCS – now subdivided into the following entities QFES, Qld Corrective Services, Public Safety Business Agency – PSBA and Qld Ambulance Service – (which is now part of Qld Health).

Question 1

The answer to this is easy – there is no obligation to implement findings (recommendations) from an inquiry. They are just that … recommendations.

Question 2

Given there is no obligation question 2 may be unnecessary to answer as the obligation to implement measures comes from the government.  First, re-organising government departments may be part of implementing the recommendations, depending on what they say – so for example the abolition of Fire and Emergency Services Authority in Western Australia was giving effect to the recommendations of the report into the Perth Hills Fires of 2011 (Mick Keelty, A Shared Responsibility: The  Report of the Perth  Hills Bushfire February 2011 Review (Government of Western Australia, 2011), Recommendation 46).

Where recommendations relate to a task or function, and that task or function is transferred to a new or restructured agency, one would expect that agency to seek to apply the learning from the inquiry and that the government would require them to implement those recommendations the government had agreed to implement.

Finally in order to give effect to changes in structure, there will be provisions in the legislation that creates the new entity that says, in effect, any reference to the old entity is now taken to be a reference to the new one and things done by the old entitiy are now deemed to be done by the new one.  This is certainly the case with the Queensland emergency services legislation – see Fire and Emergency Services Act 1990 (Qld) Part 5 – Savings and transitional provisions (ss 155-205).

Conclusion

In conclusion, my answers are:

  1. No, there is no obligation to implement recommendations, they are just that, recommendations.
  2. If a government has agreed to implement recommendations, then that would be expected to apply even if the various authorities have changed. How that is done, and whether that can be described as an ‘obligation’ depends on the attitude of the government of the day and the terms of any legislation creating the new entity but generally speaking, transitional legislation does impose obligations and liabilities on the new entity.

 

 


Categories: Researchers