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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
Updated: 9 hours 19 min ago

Accessing a judge or magistrate’s reasons for decision

18 November, 2016 - 08:44

A number of people have referred me to the story of a West Australian firefighter who has been acquitted following a motor vehicle accident that occurred when he was responding to a fire call under lights and siren – see Hannah Barry ‘Firefighter racing to blaze acquitted of dangerous driving chargeWA Today (Online) November 17, 2016 (complete with a photo of a New Zealand fire appliance!)

I make no comment on the actual case, because I have no more details than anyone else.  Which leads me to the actual content of this post.  When sending me a link to the story, one correspondent wrote “With articles like this one where can we, the general public go to gather more information, findings and transcripts on cases like this?”

The answer is, for cases like this, you probably can’t find anything.  Let me explain in more detail.

In each Australian jurisdiction, there is a hierarchy of courts that looks something like this:

The courts at the lower end of the hierarchy are the work horses of the judicial system. Magistrates Courts in particular deal with the most cases.  They are dealt with relatively quickly and generally deal with less complex matters.  The decision of a Magistrate is a not a binding precedent.  Magistrates Courts sit across the state/territory to be close to the communities.  It follows that there are so many decisions being made in Magistrates courts, that do not deal with complex issues of law and Magistrates do not have time to set out their reasons in writing.  Their decisions are usually delivered ex tempore (“at the time”); that is orally and immediately after the hearing.  Although the matters are recorded in case of appeals, there is no readily available transcript of either the case or the Magistrate’s reasons for decision.

Move to the top of the tree, the High Court of Australia, and every case is dealing with a complex issue of law, otherwise it would not have got there.  A decision of the High Court is a precedent that every lower court must follow.   Accordingly for matters in the High Court you can get a transcript of counsel’s arguments and the decision of the 3, 5 or 7 judges (depending on the case) will also be available with a very detailed analysis of the issue, the law and the reasons behind the judges’ conclusions.

The lower the court the less likely you will be able to find details.  A decision from the County or District Court may be available.  A decision of a judge in a Supreme Court (particularly if the case does not involve a jury) is probably available.  The Court of Appeal or the High Court will certainly be available.

Where do you find them?

An excellent resource is the Australian Legal Information Institute (AustLII) – http://www.austlii.edu.au/.   At AustLII you can find the legislation from each jurisdiction and the case law to the extent that the case law is available.  So every decision of the High Court, occasional decisions from a Magistrates court.

If you can’t find something at AustLII there are the court websites.  Sometimes they will provide access to judicial reasons, sometimes they’ll just refer you to AustLII.   NSW has its own website – NSW CaseLaw https://www.caselaw.nsw.gov.au/.  This site provides access to the published judgements from the NSW Courts.  Again every decision of the Supreme Court or Court of Appeal, occasional judgments from Magistrates if it is felt that the Magistrate had to deal with an issue of law and his or her decision warrants publication.

The case of the firefighter acquitted after an accident during a response was heard in the WA Magistrates Court, presumably in the town of Narrogin (ie the report says he was from the Narrogin Volunteer Fire and Rescue Service so I assume the case was heard in Narrogin).    If I go to the West Australian database on AustLII (http://www.austlii.edu.au/au/wa/) I see that AustLII has no decisions from the WA Magistrates Court.

If I go to the website for the WA Magistrates Court (http://www.magistratescourt.wa.gov.au/) there are no decisions published there, either.  (Compare that to the website of the WA District Court http://www.districtcourt.wa.gov.au/c/courtsdecisions.aspx which says “In civil cases, the reasons for most decisions by a Judge, and significant decisions by a Registrar, are published in the form of written reasons for decision.   All published reasons for decision in civil cases from 1 January 2010 are available online…”)

The result is that a decision of a WA Magistrate cannot be easily found.  It may be possible to get a copy of the Magistrates’ decision by making direct application to the court, but that is likely to incur a substantial cost if the court has to find the recording and either provide a copy of the recording or a transcription of the Magistrate’s decision.

POSTSCRIPT

I’ve previously reported on the prosecution of former NSW SES Commissioner Murray Kear – NSW SES COMMISSIONER FOUND TO HAVE ENGAGED IN CORRUPT CONDUCT (May 29, 2014).  We know that Commissioner Kear was acquitted of all charges – see Michaela Whitbourn, ‘Criminal charges dismissed against former SES Commissioner Murray Kear following ICAC probeSydney Morning Herald (Online) (March 16, 2016) – but I’ve never reported on the Magistrate’s findings.  Why?  Because again it was the decision of a Magistrate sitting in the NSW Local Court and the Magistrate’s reasons have never been published in a public forum.  Why do I say this now?  Because it confirms the ‘take home message’ of this post – finding details of proceedings in a Supreme Court or the High Court is easy; in a Magistrate’s court, virtually impossible.

 

 

 

 


Categories: Researchers

ADF medics and drugs

16 November, 2016 - 21:37

This is a long question, so I’ve broken it up with answers and comments along the way.

I have just finished reading serval of your posts relating to “What is a paramedic’s authority to practice”? (19 August 2014) and “Doctors Delegating authority to carry drugs” (20 August 2014).

I found the explanation of “authority to practice’ as defined by the South Eastern Sydney Local Health District very interesting as the definition clearly states that such a document can only be issued by a ‘National Registration Board on a year to year bases.

Yes, but the definition of that health district was quoted to point out that the term means whatever the person using it wants it to mean. The point was that paramedics don’t have a particular ‘authority to practice’ nor do they need it.  As I said in that post, the South Eastern Sydney Local Health District was ‘using the term ‘authority to practice’ as a shorthand or ‘catch all’ phrase to cover the various documents that may be issued for registered health practitioners.  The critical issue here is that paramedics are not registered health professionals.’

Continuing with your article [state employed] paramedic’s are not registered with such a National Board so their ability while on duty to carry and administer scheduled drugs and controlled drugs is derived from the employer and the duty statement the paramedic is employed under.

You also very eloquently explained how private resource paramedic’s are able to with dispensation from relevant State authorities are able to act in a similar capacity as State employed paramedic’s.

In relation to both the private and State employed paramedic’s I identified a commonality that both are not registered with a National Board.

Which is true.  Although it has been announced that paramedics will be brought into the registration scheme established by the Health Practitioner National Law that has not yet happened (see ‘National Registration for Paramedics’ Council of Australian Governments (COAG) Health Council Communique – 7 October 2016).

As a Defence medic (employment category (031-2) Medical Technician (MT)) I am trained and registered as an Enrolled Endorsed Nurse.  To maintain employment in Defence I must maintain the requirements of the civilian National Board.  A MT is employed by Defence to work in both a primary Health facility and in a prehospital care roll. The pre hospital roll requires MT’s to carry and administer medications including s4 and s8 drugs.

Upon receiving such scheduled drugs, the MT is issued an ‘authority to carry and an authority to practices’ from an issuing medical officer (Doctor).

Medical Techs often work independently in remote and isolated locations where they may issue s3-s4 and s8 medication.

When issuing medication, the MT may consult with the issuing Doctor via phone or radio to dispense for an example antibiotics s-4.  There has been no relationship between the Doctor or patient, the patient is not in a medical centre, the issued medication the MT has in possession is not prescribed to the patient on a drug order form. In this instant the MT is acting on behalf of the Doctor.

They are not acting ‘on behalf of the doctor’ any more than a nurse who administers drugs to a patient is acting ‘on behalf’ of the prescribing doctor.    The doctor makes a clinical judgment that the drugs are required, the nurse administers them in his or her capacity as a nurse. In the scenario described the MT makes a decision that a drug is required.  According to my correspondent the ‘the MT may consult with the issuing Doctor’ and I assume the use of the term ‘may’ (not ‘must’) is deliberate.  So there is someone you can ring, discuss the patient’s presentation and confirm the treatment decision.  Each person in that conversation is responsible for their part in it, but the MT is acting as an MT, not as the doctor’s agent.

If “A Doctor has no ability to legally delegate permission to carry and dispense s4-s8 drugs to a Registered Nurse outside of a hospital environment or government sanctioned medical centre for the purpose of providing first aid” and if MTs hold a registration with a national board and this forms the primary function and employment with Defence could this be viewed as breaching registration by administering s4-s8 medications?

Answer – No.   An MT may have to maintain their registration with the Nursing and Midwifery Board of Australia but that is hardly to the point.  The Enrolled nurse standards for practice may set out the minimum requirements for an enrolled nurse but it doesn’t mean that one can’t have other qualifications and skills.  I suppose it is possible that a person could be both an enrolled nurse and a registered medical practitioner.  Their practice as a doctor would not somehow mean they are breaching their registration standards.

More likely there are enrolled nurses who are employed as paramedics.  Their practice as a paramedic, in accordance with the authorities granted to them as paramedics would not be a breach of the minimum standards expected as an enrolled nurse.  The definition of ‘unsatisfactory professional conduct’ that applies in NSW (Health Practitioner Regulation National Law (NSW) s 139B) is “Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner’s profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience”.   An MT that applies his or her training and skills in accordance with the authority granted by the ADF is not acting below, but in accordance with the standard expected of someone with that ‘level of training or experience’.

If their conduct does fall below the expected standard, they can expect to lose both their employment and their registration.  For example, a paramedic who steals drugs or assaults their patient may lose both their job and their enrolment.  But, in context, supplying drugs that one is authorised to supply as a paramedic or MT in accordance with one’s training, skills and authority is providing care beyond or above, not below, the standard of a person who is an enrolled nurse but not a paramedic or MT.  Consider the ‘standards of practice’ as the minimum skill set, not the only skill set one can have.

Secondly MT’s may be issued s4-s8 drugs in one state and then travel to another state to support Military activities.

As you stated that private resource paramedic’s need authorisation from relevant Sate Departments to act in their roll within that state. Would the Defence Force by issuing s4-s8 in for example in South Australia and then transport the drugs to another sate [Queensland] be in breach of that states laws or is there a Federal dispensation allowing such movement solely for Defence.

Answer – No, there is no offence here or alternatively; Yes there is a federal law that allows such movement.  The Australian Constitution, s 109 says that where there is an inconsistency between a valid state law and a valid Commonwealth law, the Commonwealth law prevails.  The relevant Commonwealth law here is the Defence Act 1903 (Cth) s 123(1) which says:

A member of the Defence Force is not bound by any law of a State or Territory

(a)  that would require the member to have permission (whether in the form of a licence or otherwise) to use or to have in his or her possession, or would require the member to register, a vehicle, vessel, animal, firearm or other thing belonging to the Commonwealth; or

(b) that would require the member to have permission (whether in the form of a licence or otherwise) to do anything in the course of his or her duties as a member of the Defence Force.

Where the MT is carrying drugs in accordance with the authority granted by the ADF he or she is not required to comply with state laws with respect to an authority issued by a state health department to carry (s 123(1)(a)) or use (s 123(1)(b)) drugs.

Conclusion

A medic employed by the ADF who is also a registered enrolled nurse commits not breach of the standards expected of an enrolled nurse if he or she uses the skills, training and authority provided by the ADF unless that behaviour is conduct that falls below, not just is different from, that expected of an enrolled nurse.   Having a different skill set and authorisation is not conduct that is ‘below’ that expected of a nurse and applying those skills in a competent way is not going to suggest that the person is not competent as an enrolled nurse.

A medic employed by the ADF is not required to have any authority from a state agency to carry or use scheduled drugs.  Their authority comes from the ADF.
 


Categories: Researchers

A new publication

14 November, 2016 - 11:03

I am pleased to announce the publication of a new text – Disaster Health Management: Primer for Students and Practitioners (Routledge).   As the attached flyer says:

Edited by Gerry FitzGerald, Queensland University of Technology, Mike Tarrant, Queensland University of Technology, Peter Aitken, Queensland University of Technology and James Cook University, and Marie Fredriksen, Queensland University of Technology.

Disaster Health Management is the first comprehensive textbook to provide a standard guide to terminology and management systems across the entire spectrum of disaster health. The textbook provides an authoritative overview of: the conceptual basis for disaster management; systems and structures for disaster management; getting ready for disasters; incident management; recovery; natural disasters; man-made disasters; and strategic considerations. Using examples of broad principles with global application this is an essential text for both undergraduate and postgraduate students, as well as for  professionals involved in all health aspects of disaster management.

I’m pleased to have made a contribution to this text.  Fiona McDonald (Queensland University of Technology), Erin Smith (Edith Cowan University) and I are the authors of the chapter ‘Legal and Ethical Aspects of Disaster Management’.

For those interested, the flyer contains an order form and a code for a 20% discount on the retail price.


Categories: Researchers

Can NSW SES provide event first aid services?

13 November, 2016 - 16:54

This is a question I’ve thought about before, so I’m pleased someone asked.  The question is:

Is NSW SES allowed to be the first aiders onsite at community events/non-emergencies?

Obviously, if NSW SES find an injury they will render first aid. My question relates to a community event where the organisers have requested NSW SES be the first aiders instead of St. John Ambulance or a private group.

Disclosure

Before answering this I should disclose I have been a member of both St John Ambulance (NSW) and NSW SES. In answering this I am going to make some assumptions about skill levels and training that may be a bit out of date, but I’m sure there are plenty of readers of this blog who will correct any errors.

‘Allowed’

To consider that one would have to consider is there a law against it. In my view, arguably there is.  The Health Services Act 1997 (NSW) s 67E(1) says

A person must not:

(a) directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, or

(b) conduct for fee or reward any operations similar to the operations carried on by the Health Secretary under this Chapter,

without the consent of the Health Secretary and except in accordance with such conditions (if any) as the Health Secretary may from time to time impose.

I have previously argued that there is nothing in s 67E that says that ‘transport’ means ‘transport to hospital’.  Any transport, including around the event, is contrary to the section – see:

Let us assume that the SES are not providing any transport (s 1(a)) but they are providing operations similar to operations carried out by NSW Ambulance.  NSW Ambulance provides ambulance services, that is “services relating to the work of rendering first aid to, and the transport of, sick and injured person” (Health Services Act 1997 (NSW) s 3 and Dictionary, definition of ‘ambulance services’).   NSW Ambulance will provide event first aid services, for a fee.  So anyone else doing that is providing operations similar to those of NSW Ambulance.  If the SES are doing it for fee or reward (eg a donation to the unit) then arguably they are in breach of s 67E.

I say arguably because s 67E has been effectively ignored for years and that has allowed the growth of private event first aid services (see again Michael Eburn and Jason Bendall, ‘The provision of Ambulance Services in Australia: a legal argument for the national registration of paramedics’ (2012) 8(4) Australian Journal of Paramedicine, Article 4).   It’s hard to believe NSW Ambulance would actually seek to prosecute or restrain the SES but, at least under current law, it is possible.

The other consideration when considering ‘allowed’ is the State Emergency Service Act 1989 (NSW). This Act, at s 8, sets out the functions of the SES.  They are:

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

(a) to act as the combat agency for dealing with floods (including the establishment of flood warning systems) and to co-ordinate the evacuation and welfare of affected communities,

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

(c) to act as the combat agency for dealing with tsunamis and to co-ordinate the evacuation and welfare of affected communities,

(d) as directed by the State Emergency Operations Controller, to deal with an emergency where no other agency has lawful authority to assume command of the emergency operation,

(e) to carry out, by accredited SES units, rescue operations allocated by the State Rescue Board,

(f) to assist the State Emergency Operations Controller to carry out emergency management functions relating to the prevention of, preparation for and response to, and to assist the State Emergency Recovery Controller to carry out emergency management functions relating to the recovery from, emergencies in accordance with the State Emergency and Rescue Management Act 1989,

(g) to assist, at their request, members of the NSW Police Force, Fire and Rescue NSW, the NSW Rural Fire Service or the Ambulance Service of NSW in dealing with any incident or emergency,

(h) to maintain effective liaison with all emergency services organisations,

(i) to carry out such other functions as may be assigned to it by or under this or any other Act, or by the State Emergency Operations Controller or the Minister.

Clearly the sort of exercise being considered is not a ‘function’ of the SES, that is the SES was not created to do that sort of work; which makes sense. The SES is a state government agency, as is NSW Ambulance. If someone wants the state to provide first aid services, the relevant agency is NSW Ambulance.

Just because it is not a specific function does not mean that the SES can’t do it.  It may be sufficiently related to their functions, in particular as a training exercise to make it legitimate.  There has to be a line – a taxpayer could quite rightly be concerned if, say, the SES started operating a for profit business to raise money for the unit and using SES resources on the basis that was not a legitimate purpose of the SES.  Whether first aid services crosses that line would be a matter in each circumstance.

Liability

The bigger question is not so much ‘is the SES allowed to do it?’; but ‘is it a good idea?’   An event coordinator needs to do a risk assessment as to the level of first aid services that are required taking into account the nature of the event, who might attend, locality and access to the emergency services (including ambulance service) and who might be able to offer assistance – SES, St John Ambulance, private event first aid providers, NSW Ambulance etc.

Now I may be out of date here, but my experience is that every member of the SES is required to do a first aid certificate, and renew it every three years, but that may be their total exposure to first aid.  They may never be called upon to actually use those skills in their work or in their volunteering with the SES.  Even if the SES operates the accredited rescue unit, their actual experience in providing first aid may be very limited. Further, training to meet the functions set out in s 8 would not include training in how to run a first aid room and operate a first aid service.

Imagine a staging area during a major flood, storm or even bushfire operation.  If SES training was sufficient, the SES could say, to any member, ‘today you are the first aid person at this staging post to provide first aid to any injured member of the response agencies and members of the public?’  I doubt they would do that because they would accept that this is a different skill set.  I imagine they would get NSW or St John Ambulance to provide those sort of first aid services because it would be recognised that simply holding a first aid certificate is not sufficient qualification for those purposes.  It is sufficient for what it is – to quote from a recent newspaper story (Benjamin Law: ‘What happens in a first-aid course these days?‘ Sydney Morning Herald Good Weekend (Online) (November 12 2016)):

 We’re not expected to come out of this as medical professionals, Rhonda-Lee [the instructor] clarifies. “First aid is exactly that,” she says. “You’re the first aid until professional help arrives. Keep them breathing; stop them bleeding. Everything else is buttons and bows.”

A first aid certificate may be adequate training to keep someone alive in a sudden and dramatic emergency but is it, on its own, adequate for all the minor injuries, the ambiguous presentations that an event first aid provider might see, and does it allow the provision of care that can actually keep someone out of hospital?

St John used to let members loose on the public with nothing more than a senior first aid certificate but I think that is no longer the case.  As I understand it further training is required before members are allowed to provide first aid without direct supervision. Further, as the St John (NSW) website says “Our committed volunteers are able to receive further training in advanced first aid through courses such as Advanced Resuscitation, Analgesic Gases and Semi-Automatic External Defibrillation”.

If I’m right about the different skill levels, an organiser that calls upon the SES is going to get people who have a senior first aid certificate, they may be quite practical people able to cope in an emergency but with no particular skill or experience in actually administering first aid.  Contacting an event first aid provider (whether St John or someone else) they are going to get someone with more training, actual first aid experience and the possibility that they will also bring oxygen, analgesia and a defibrillator.

One does have to consider what sort of risk assessment would suggest that having the SES to do the first aid is sufficient to address the risk?  For an organiser, or the SES to think they can provide event first aid they must think that event first aid providers (whether St John, another community organisation or a private for-profit provider) bring no more skills or experience to the task.   Those skills and experience are not only clinical but actual operational –how best to actually run a first aid service whether at a small or large event.

So the first question I would want a unit controller to ask, when approached to provide first aid services is ‘are we actually qualified and competent to do this?’    And the question I would ask an organiser who requested ‘NSW SES be the first aiders instead of St. John Ambulance or a private group’ is ‘do you know what the SES does, and why do you think they are appropriate providers?’  My fear would be that they think the SES is better qualified and better equipped than they actually are.  Now that could lead to all sorts of problems.

Let us assume, for the sake of the argument, that the event in question is reasonably high risk, let’s say a ‘rodeo’.   A rodeo rider is injured and the SES come to assist with, let’s face it, very basic skills.   Let us also assume that the low level care and all the circumstances lead to a claim of negligence.  It may be against the event organiser on the basis that they did not do a proper risk assessment and if they had, they would have had more advanced care available on the scene.  The event organiser may, in turn, say ‘but I thought the SES had those skills so they are at fault’.  That could well become a significant argument about who communicated what to whom, what did the SES say they could do?  What did the event organiser ask for etc.

Let us assume that somehow the matter does progress.  The SES might want to rely on the State Emergency Service Act 1989 (NSW) s 25(1) that says:

A matter or thing done by:

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

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

But providing first aid at a community event is not done for the purpose of exercising the functions of the State Emergency Service (though no doubt if the action were endorsed by the SES, even at unit controller level, the SES would be vicariously liable for any negligence by the member).

What of the Civil Liability Act 2002 (NSW) s 57 that says:

A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

I don’t think that in this case the SES or its members are ‘good samaritans’.  They have not just come across the accident, they are on site with the express intention of providing care and are probably getting some reward, eg a donation to the unit.   A person or organisation that offers to provide first aid event services is not providing care as a good Samaritan, but out of performance of the agreement that they have entered and, which no doubt brings some reward.

That’s not to say members would be personally liable.  They would be there in SES uniform engaging in an activity endorsed by the SES (at least at unit level).  They could still rely on the notion of vicariously liability and the volunteer protection provisions in the Civil Liability Act 2002 (NSW) s 61/   But in the wrong circumstances, I don’t think that the members, or the SES could rely on the provisions discussed above.

Conclusion

It is arguable that he SES are not allowed to provide event first aid because such action is, at least arguably, prohibited by the Health Services Act 1997 (NSW) s 67E (at least until that section is amended by the Health Services Amendment (Ambulance Services) Act 2015).    It’s also arguable that they are not allowed because such action is not a function of the SES but in the right circumstances it could be sufficiently related to the functions of the SES as it might provide relevant training and ‘team building’ to allow the SES to meet its statutory functions.

The more critical question is ‘does the SES have the training, skills, equipment and experience to do the task they have been requested to do?’   Given that SES training requires no more than a basic first aid certificate and my understanding is that SES training and equipment does not include oxygen therapy, analgesia and other advanced care skills the answer is probably ‘no’.  No-one organising an event would say to a group ‘you’ve all done a first aid certificate sometime in the last three years; that’s good enough to run a first aid service’ and that’s really what’s happening if they ask the SES.

That could lead to legal issues if it turns out that the SES cannot provide treatment at the level of care that the event organiser or participants expect.  The organiser may have misunderstood what the SES could provide.  Participants, depending on the event in question, may have a reasonable expectation that care is provided at a certain skill level.  Failure to provide that care may be negligence by either the organiser, the first aid providers, or both.

On balance I think the SES are probably ‘allowed’ to do that task; but whether it’s a good idea to do so is a very different question.


Categories: Researchers

Photographing a rescue scene

11 November, 2016 - 09:38

Given this blog’s been going for nearly 8 years, it’s not surprising that issues continue to return.  This question involves taking photos at an emergency scene.   I’ll answer the question briefly but refer to earlier posts for more details and legal references.

My correspondent is from NSW who responded to a motor vehicle accident with persons trapped.  My correspondent asks about:

…   service operators taking photos of the scene. Service operators I define as Police, Fire, Ambulance, SES, VRA etc.

The other day we were called to a MVA persons trapped. A photograph was taken of the overall scene showing the overturned vehicle’s roof an SES vehicle and police rescue truck, no distinguishing features of any of the members present or anything relating to the victim or number plates etc.

  1. Is there a law not permitting this?
  2. Can this photo be published?
  3. Can a phone and the image be subpoenaed (taken) by police on request?

The short answers are:

  1. No, there is no law that says this action is ‘not permitted’. There may be internal agency policy on the matter.  Note in this context the photographic policy in Appendix B to the NSW State Rescue Policy.  That policy says, inter alia “All photographic images taken at a rescue incident are considered to be the property of the NSW Police Force in the first instance.”  It doesn’t say who considers the photo to be the property of the police, but it’s clearly not an accurate statement of the law (see the posts referred to below).
  2. Yes, the photo can be published – again there may be internal policy issues and there could be issues about who owns the photo so if it was taken by a media officer for the purposes of the agency the photo will be owned by the agency, not the photographer (for details of ownership, see, in particular, Taking Photos Whilst On Duty with the NSW RFS – Amended (October 26, 2013)). Putting those issues aside, as a general rule, the owner of the photo can do what they like with it.
  3. A subpoena is a court order directed to a witness requiring them to attend court and give evidence or produce a document. If there are court proceedings the police or Crown (depending on the nature of the offence) could subpoena the person who took the photo and require them to attend court and produce it.  If court proceedings have not commenced, eg the matters still being investigated police can of course ask for the photo but there’s no obligation to hand it over unless they have a relevant search warrant.  Police cannot seize the camera or the photo unless that is required to secure the evidence as a matter of urgency (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 95 ‘Crime Scene Powers’) or the photographer has been arrested (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 27 ‘Power to carry out search on  arrest’).

For more details, see:

  1. FEBRUARY 2, 2016BYSTANDERS PHOTOGRAPHING AN EMERGENCY
  2. SEPTEMBER 25, 2015POSTING PHOTOS ON SOCIAL MEDIA AS A COMMUNITY WARNING (VICTORIA)
  3. FEBRUARY 23, 2015TAKING PHOTOS, RECORDING SOUND
  4. JANUARY 9, 2015TAKING PHOTOS ON THE FIREGROUND IN SOUTH AUSTRALIA
  5. OCTOBER 26, 2013TAKING PHOTOS WHILST ON DUTY WITH THE NSW RFS – AMENDED
  6. AUGUST 24, 2012US LEGISLATION ON TAKING PHOTOS AT EMERGENCY SCENES
  7. AUGUST 6, 2011THE USE OF PHOTOS TAKEN AT ACCIDENT AND EMERGENCY SCENES

Categories: Researchers

Learning to drive a heavy vehicle in NSW

2 November, 2016 - 17:01

A volunteer with the RFS asks a question with respect to driver training:

… at what point is it legal for a person to get behind the wheel of a heavy vehicle and begin learning to drive? Is it before or after a theory and eye sight test at an RMS/Service NSW office?

The current widely accepted procedure is;

  • A member who holds a Class C license to approach his/her district administration office and request a letter stating that this member is granted permission to undertake Driver training in a service vehicle. This letter also exempts the member from certain fees at the RMS office.
  • The member then takes this letter to the RMS office and then undertakes a Heavy Vehicle Knowledge Test appropriate to the vehicle class they wish to learn on.
  • When they pass the test they undertake an eyesight test, and upon passing that test they receive a log book to record their training hours.
  • At this point they begin learning with a qualified driver (from this step onwards, is covered by RFS SOP) until they are ready to undertake a competency based assessment.

This is fairly straightforward, however we have found some people have a different interpretation, and the RMS cannot clarify the position for us.

The Heavy Vehicle handbook states that there are 2 ways to become qualified/licensed to drive a Heavy Vehicle. One is through a recognised driving school, the other way is through a competency based assessment using an RMS assessor in your own vehicle.

The handbook only says that the Heavy vehicle knowledge test and eyesight test need to be done before the candidate undertakes his/her assessment.

The handbook does not really say when someone can actually get behind the wheel to drive a vehicle for the purposes of learning to drive on a public road.

Is there any information you might be able to add to this discussion?

The principle instrument is the Road Transport (Driver Licensing) Regulation 2008 (NSW).   This regulation provides for a wide range of licences from class C (car) to class MC (multi-combination vehicle licence) plus motorcycle licences (rr 5-7).

Part 3 of the Regulation deals with ‘Learner Licences, Provisional Licences and Heavy Vehicle Learners’.   The provision dealing with a ‘learner licence’ does not say it is limited to a learner licence for a car or a motorcycle.  It does say ‘A person is eligible to apply for a learner licence if the person meets the relevant eligibility requirements set out in this clause…’   The only relevant eligibility requirements are that for a car licence the person must be aged over 16 and for a motorcycle licence that they must be aged over 16 years and 9 months and have satisfactorily completed ‘a learner licence rider training course’.  Given there is no eligibility requirement for a learner licence or a heavy vehicle, the inference must be either anyone can get one, or such a thing does not exist.  It can’t be that anyone can get one (you can’t imagine issuing a heavy vehicle learner licence to a 5-year-old) so it must be that there is no such thing as a ‘heavy vehicle learner licence’.  That interpretation is confirmed by the presence of r 36.

Regulation 36 says:

The holder of an Australian driver licence (other than a learner licence) for a motor vehicle (other than a motor bike or motor trike) may drive a motor vehicle for which a higher class of driver licence is required if:

(a) the higher class is one the holder would be eligible to apply for in accordance with this Regulation, and

(b) the holder is receiving tuition from, and is accompanied by, a person who has held that higher class of driver licence (other than a provisional licence of that class) for a period of, or periods totalling, at least 12 months and is providing tuition in accordance with the laws of this State concerning driver instruction.

The eligibility requirements to apply for a heavy vehicle license are set out in r 38.  To apply for a light or medium rigid licence, the applicant must have held a C class licence (including a provisional licence) for at least 12 months.    For a heavy rigid licence, the applicant must have held a C class licence for at least 24 months.  There are further requirements for heavy rigid, heavy combination and multi-combination licences that I won’t go into.

Let me assume that the applicant wants a LR (light rigid licence).   They can ‘get behind the wheel’ of a vehicle that requires that class of licence provided they hold a class C licence and have held that licence for at least 12 months and it is not a ‘P1’ licence (r 38(5)).  Further they must be ‘receiving tuition from, and is accompanied by, a person who has held that higher class of driver licence (other than a provisional licence of that class) for a period of, or periods totalling, at least 12 months’ – that sounds like normal ‘learner driver’ rules, save that regulation 36 goes on to say that the supervising driver must be ‘providing tuition in accordance with the laws of this State concerning driver instruction.’  The only relevant law on driving instruction appears to be the Driving Instructors Act 1992 (NSW).  Section 4 of that Act does say that a driving instructor is:

… a person

(a) who instructs another person for the purpose of teaching that other person to drive a motor vehicle, and

(b) who receives a monetary or other reward for so instructing (whether from the person under instruction or otherwise).

Section 6 says:

A person must not act as a driving instructor unless the person is the holder of a licence.

But if you are not charging money, you are not acting as a ‘driving instructor’.   It would appear that anyone who has held the relevant licence for 12 months and is providing instruction and supervision is acting in ‘accordance with the laws of this State concerning driver instruction’ provided they are not charging a fee, or if they are charging a fee, they hold the appropriate driving instructor’s licence.

To actually obtain a licence the applicant must demonstrate that he or she meets the relevant eligibility requirements for that class (r 40).  Before granting the licence the RMS may (r 44(3):

… require an applicant for issue or variation of a driver licence to do any one or more of the following:

(a) undergo tests or assessments, or provide other evidence of the applicant’s knowledge of road law, driving ability, training, experience or suitability to hold a driver licence…

All of that is consistent with the Heavy Vehicle Driver Handbook. The Handbook says at p 18

You can learn to drive heavy vehicles on your current licence if you are eligible to apply for the particular vehicle type. …  You must be accompanied and supervised by a person who has held the class of licence for the heavy vehicle you want to drive, or a higher class of driver licence, for one year or more. You may also need a National Driver Work Diary, see section 3 Driver management.

That is what Road Transport (Driver Licensing) Regulation 2008 (NSW) r 36 says.  The handbook goes onto say, consistent with r 44(3):

If you want to upgrade your driver licence you need to:

  • Pass a knowledge test.
  • Pass an eyesight test.
  • Either pass a Roads and Maritime driving test or undertake HVCBA training and assessment.

If an applicant goes down that path, they can drive as soon as they want to and only need to pass the knowledge and eyesight test, and driving test, when they apply to vary their licence to add the new class of licence.

The alternative route, the Heavy Vehicle Competency Based Assessment (HVCBA) is set out in r 49.  That regulation says ‘The Authority may approve a scheme (to be known as “competency based assessment” ) under which a person’s competency may be assessed for the purposes of a determination in relation to an application for the issue or variation of a driver licence held or to be held by a person.’  It is up to the Authority, ie RMS to define the scheme.  The Heavy vehicle driver handbook (p 18) says:

The knowledge test assesses what you know about the general road rules as well as rules which relate only to heavy vehicles. …

You must pass a heavy vehicle road rules knowledge test before you can:

  • Apply for a Heavy Vehicle Competency Based Assessment Learner’s Log Book and undertake HVCBA.
  • Book a heavy vehicle driving test.

If you are learning, you can start to drive straight away on your current licence, however, you must pass the heavy vehicle road rules knowledge test before booking for a driving test or obtaining a HVCBA Learner’s Log Book.

The RMS has, one can infer, when designing the HVCBA scheme determined that passing the knowledge test is a pre-requisite for entering the scheme  but as noted, it is not a pre-requisite for actually learning to drive.

Conclusion

The question was ‘when can someone actually get behind the wheel to drive a vehicle for the purposes of learning to drive on a public road? Is it before or after a theory and eye sight test at an RMS/Service NSW office?’

Answer: Assuming the person wants to obtain a light or medium rigid licence the answer is ‘as soon as they have held a C class licence for more than 12 months, they are off their P1 licence, and they are receiving instruction and supervision from a driver who has held the relevant higher class of licence for at least 12 months.

They only need to pass the knowledge test when they seek to upgrade their licence or enter the HVCBA scheme.   They also only need to pass the eyesight test when they apply to upgrade their licence.


Categories: Researchers

NT police officer gaoled for failing to render assistance

31 October, 2016 - 13:14

A correspondent from the Northern Territory has brought this story from March 2016 to my attention – see Neda Vanovac ‘Former cop jailed over kids’ car crashnews.com.au (March 31, 2016).  Although the defendant was only sentenced in March this year, the accident occurred in 2014 – see ‘Cop charged for leaving scene of car accident in Alice SpringsNT News (May 11, 2014).

It has often been said that there is no general duty to rescue – that is we are not under a duty to go to the aid of a stranger (Stuart v Kirkland-Veenstra [2009] HCA 15) but that is a rule of the common law and can be altered by Act of Parliament. The Northern Territory has a unique provision in the Criminal Code (NT).  Section 155 says:

Any person who, being able to provide rescue, resuscitation, medical treatment, first aid or succour of any kind to a person urgently in need of it and whose life may be endangered if it is not provided, callously fails to do so is guilty of an offence and is liable to imprisonment for 7 years.

In my book, Emergency Law (4th ed, Federation Press, 2013) I said this about s 155:

The obligation is not a general obligation to assist anyone in need. It is limited to cases where the person in need is suffering from “a potential or actual life-threatening injury” (Salmon v Chute (1994) 94 NTR 1, [17]).  It must also be shown that the accused was physically and mentally capable of rendering assistance, they were sufficiently close to be able to provide assistance and they knew that someone was in need of assistance ([19]). Even where all these factors are present no offence is committed unless the accused “callously” refuses to help. To act “callously” requires a deliberate and conscious choice not to assist. That choice must be in circumstances where it would “offend com­mon standards of respect, decency and kindness in the sense that a reasonable person would regard the accused’s failure as callous” ([22]).

In Salmon v Chute the accused was acquitted.

In R v Hettirachchi (Northern Territory Supreme Court, 3 March 2016, Mildren JA) (the case the subject of the news reports, above) former Constable Hettirachchi entered a plea to 5 counts of failing to render assistance as required by the criminal code.

The facts, as reported by the judge, are that at 1.45am Constable Hettirachchi was on duty with Probationary Constable Hicks.  It was the probationary constable’s first shift!  They approached a motor vehicle with 5 young people in it.  It had been reported that the young people had alcohol in the vehicle with them.   The car drove off and Constable Hettirachchi pursued them.   At some point the police lost sight of the vehicle so they patrolled and saw that the vehicle had collided with a tree and was on its side.  Rather than stop and render assistance Constable Hettirachchi drove on and said to the Probationary Constable ‘You didn’t see anything’.   They did a u-turn and drove back past the accident sight and when asked by the Probationary Constable whether she should radio details of the accident he said ‘No, I didn’t see anything’.   Constable Hettirachchi and the Probationay Constable continued their shift until their rostered finish time of 3am.

At 2.16am the accident was reported to police and other police attended the scene and the 5 injured young people were taken to hospital; two with severe injuries and for one of those the injuries were life-threatening.

Some of the pursuit had been captured on CCTV and at least one of the people in the car reported seeing a police car stop but not offer assistance.   Constable Hettirachchi first denied being there, he then admitted to being involved in a pursuit but said nothing further.  Ultimately, in court, he entered a plea of guilty to the five charges (one for each injured person) of failing to stop and render assistance and he also entered a plea of guilty to a charge of attempting to pervert the course of justice by directing the Probationary Constable not to report the accident.

The total sentence was 3 years imprisonment, to be suspended after 12 months.   The judge explained the effect of that order to (now) Mr Hettirachchi as:

… if you commit another offence which is punishable by imprisonment in that two-year period after the date of your release, you will be brought back before this Court and you may then have to serve the whole or some part of that two years of the sentence which remains unserved.

Discussion

In Salmon v Chute the court set out the elements of the offence:

  • The victim is suffering from “a potential or actual life-threatening injury”;
  • the accused was physically and mentally capable of rendering assistance;
  • they were sufficiently close to be able to provide assistance; and
  • they knew that someone was in need of assistance; and
  • They acted ‘callously’ that is ‘a deliberate and conscious choice not to assist … in circumstances where it would “offend com­mon standards of respect, decency and kindness…’

We can see why the Constable Hettirachchi was guilty of the offence.  The judge noted that only two of the victims had serious injuries and only one had life threatening injuries, but Constable Hettirachchi did not know how many people were in the car.  There had to be at least one (someone was driving) and he had reason to think, given what he’d seen and been told, that there was more than one and the ‘potential’ for life-threatening injury was clear.

Constable Hettirachchi was an on-duty police officer.  He was certainly close enough to render assistance and aware that someone was in need.  I suppose in the right circumstances one might argue that an officer involved in pursuit who comes across the crashed car (but didn’t see the crash) was not ‘physically and mentally capable of rendering assistance’.  That might depend on whether it was a close call and perhaps their past experience.  With greater understanding of disorders such as PTSD it may be that an officer finds that they simply can’t respond – but that was not suggested here.

The final element is ‘a deliberate and conscious choice not to assist … in circumstances where it would “offend common standards of respect, decency and kindness…’   In the case of Dr Dekker, a doctor who was charged (but ultimately cleared) of allegations arising from her failure to render assistance at an accident in Western Australia, we might understand that her decision to drive to the police station rather than render help would not be regarded as ‘callous’ (see Further Legal Ruling Affecting ‘Doctors as ‘Good Samaritans’ – Do I Have To Stop?’ (January 3, 2015)).  This case, however, was quite different.  An on-duty police officer drove past the accident site – twice- and directed his probationary, on her first shift, to do nothing.   It’s hard to imagine any conduct that would be more offensive to ‘common standards of respect, decency and kindness…’

As the judge said:

… there must be sentences of imprisonment. General deterrence looms large in cases of this kind, because the public are entitled to expect not only a serving Police Officer but anyone to come to the rescue in situations like this. In your case, you were a serving Police Officer and the public are entitled to expect a lot more from serving Police Officers, whose duty it is to protect the public and to assist in the enforcement of law.

It is also, of course, totally inimicable to your duty as a Policeman to attempt to pervert the course of justice. These are serious matters and there must be suitable punishment.

(General deterrence is the idea that the sentence is intended to communicate to others the seriousness of the offence to ‘deter’ them from doing the same thing; specific deterrence on the other hand, is considering how the sentence will deter this offender from re-offending.  Specific deterrence was not mentioned here but given Hettirachchi was no longer in the police force and would not be in the same position to offend again, specific deterrence was probably not at the forefront of the judge’s mind).

The other tragic outcome of this case is that:

As a result, [Probationary Constable] Hicks resigned and left the Northern Territory Police Force. As I noted earlier, it was her first ever shift after completing her police recruit training.

A question from my correspondent

In drawing this case to my attention, my correspondent asked:

I teach first aid in Old, SA and NT mainly in the remote border areas.  Am I right to inform the students that once they cross over the NT border they then come under NT Law?

The answer to that question is ‘yes’.

 

 

 


Categories: Researchers

How many first aiders need to be on a CFS fire truck ?

30 October, 2016 - 13:21

A volunteer with the South Australian Country Fire Service has:

…  a question in relation to the provision of a qualified first aider in a crew when responding to an incident. Some believe each crew should have at least one member appropriately trained in first aid to the appropriate level. This is not the case at the present time and will not be for the foreseeable future due to very limited resources being allocated to first aid training.

We have referred to the “First Aid in the Workplace Code of Practice” from Worksafe Australia (which we think applies to all workplaces including CFS incidents). Within the code is a requirement to determine the category of risk within the workplace and is quite prescriptive insofar as numbers of first aiders, access of workers to first aid and the equipment to be provided.

The Code also requires consultation between the workers (volunteer CFS personnel in this case) and the “Person Conducting the Business or Undertaking”, in this case the CFS

Our questions are;

  1. Does the Safework Australia “First aid in the Workplace Code of Practice” apply to CFS operations?  Is it mandatory (ie is the law being broken if we do not comply with the code) or is it a simply a roadmap of good practice which can be moulded to fit an organisations resources and culture at a particular time? If the law is being broken, by whom?  The Crew Leader?, Brigade Captain?  ChiefOfficer?
  2. Assuming it is mandatory, the code calls for consultation between the management and the workers to determine requirements. If you were “Management” hauled before an Inquiry or Court, what would be expected of you to show you had in fact complied with the code in all respects, including consultation
  3. So, what does the Law say in regard to first aid provision within CFS crews?

Before we can answer the questions about the Code of Practice, we need to start with the legislation.  As noted in other posts, there is meant to be a nationally consistent scheme of work health and safety (WHS) laws (but like all good national schemes, it’s not quite national – Victoria and Western Australia have still not come on board! See http://www.safeworkaustralia.gov.au/sites/swa/model-whs-laws/pages/jurisdictional-progress-whs-laws).

The relevant law in South Australia is the Work Health and Safety Act 2012 (SA).  As my correspondent has noted, under the Act the term ‘worker’ includes a volunteer (s 7(1)) and the person with the principal duty to ensure health and safety is the ‘person conducting a business or undertaking’ (a PCBU), in this case the CFS.  Section 19 says:

A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

(a) workers engaged, or caused to be engaged by the person; and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

What is ‘reasonably practicable’ requires a risk assessment.  When identifying the response to any identified risk, the PCBU must take into account and weigh up all relevant matters including (s 18):

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

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

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

(i) the hazard or the risk; and

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

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

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

When it comes to assessing the workplace risks and determining what are the reasonably practical responses to those risks, the PCBU must consult with its workers (Division 2).    Consultation can occur in numerous ways (for an interesting segue, see RFS Volunteer Exercising Rights as a ‘Worker’ (August 27, 2016)).

With respect to first aid, the Work Health and Safety Regulations 2012 (SA) r 42 says:

(1)       A person conducting a business or undertaking at a workplace must ensure—

(a) the provision of first aid equipment for the workplace; and

(b) that each worker at the workplace has access to the equipment; and

(c) access to facilities for the administration of first aid.

(2)       A person conducting a business or undertaking at a workplace must ensure that—

(a) an adequate number of workers are trained to administer first aid at the workplace; or

(b) workers have access to an adequate number of other persons who have been trained to administer first aid.

 (3)      For the purposes of this regulation, the person conducting the business or undertaking must have regard to all relevant matters, including the following:

(a) the nature of the work being carried out at the workplace;

(b) the nature of the hazards at the workplace;

(c) the size and location of the workplace;

(d) the number and composition of the workers and other persons at the workplace.

The first thing to note here is that the legislation is NOT ‘quite prescriptive’ with respect to any mathematical formula.  Older legislation used to have prescriptions about how many first aiders were required for the number of employees, the size and contents of first aid kits and the like.  Modern WHS legislation is much less prescriptive leaving it to the PCBU to determine what is required given the risks in the particular workplace.  This imposes a greater burden on the PCBU as they need to show that they have actually considered the risk and come up with a ‘reasonably practical’ response to that risk – they cannot simply point to the first aiders and say ‘we’ve complied’.  It does mean however, that if there is a disagreement between the PCBU and the relevant inspector, it may be up to a judge to determine whether the PCBU did everything that was ‘reasonably practicable’.

To return to first aid the effect of regulation 42 is that a PCBU must ensure that first aid is available to the workers, but exactly how that’s done – what is an ‘adequate’ number of first aiders?  Do the first aiders have to be ‘trained to administer first aid at the workplace’ (eg other RFS volunteers) or ‘other persons who have been trained to administer first aid’ (eg a contracted service)?  These are matters for the PCBU to determine taking into account the factors listed in r 42(3) and determined in consultation with the workers.

With respect to the Code of Practice, the ‘Minister may approve a code of practice for the purposes of this Act and may vary or revoke an approved code of practice’ (Work Health and Safety Act 2012 (SA) s 274(1)).  A Code of Practice is not itself ‘binding’ but ‘is admissible in the proceeding as evidence of whether or not a duty or obligation under this Act has been complied with’ (s 275(1)).   Further s 275(4) says:

Nothing in this section prevents a person from introducing evidence of compliance with this Act in a manner that is different from the code but provides a standard of work health and safety that is equivalent to or higher than the standard required in the code.

What that means is that if the matter were to come to court as a prosecution, a PCBU could point to compliance with a code of practice as evidence that they had indeed done everything ‘reasonably practicable’ but it’s not a complete defence if the inspector can show that the compliance failed to actually take into a real risk in the work place.  Equally, given the nature of WHS regulation and the shift of responsibility to the PCBU, if the PCBU can show that they didn’t comply with the Code of Practice because, for example, it didn’t really fit their workplace or the risks or the workers had come up with a response to a risk that was a better fit and provided a higher standard of protection, then that is fine.

The website of SafeWorkSA says that Safe Work Australia’s ‘First Aid in The Workplace: Code of Practice(March 2015) is an approved Code of Practice for the South Australian legislation.   The Code of Practice has to be consistent with the legislation, so it, like the legislation does not prescribe the number of first aiders for each 20 employees or the like.  It says, on p 4:

First aid requirements will vary from one workplace to the next, depending on the nature of the work, the type of hazards, the workplace size and location, as well as the number of people at the workplace. These factors must be taken into account when deciding what first aid arrangements need to be provided.

So now I can turn to the questions:

  1. Does the SafeWork Australia “First aid in the Workplace Code of Practice” apply to CFS operations?  Is it mandatory (ie is the law being broken if we do not comply with the code) or is it a simply a roadmap of good practice which can be moulded to fit an organisations resources and culture at a particular time? If the law is being broken, by whom?  The Crew Leader?, Brigade Captain?  ChiefOfficer?

Yes, the SafeWork Australia “First aid in the Workplace Code of Practice” does apply to CFS operations?  It is not mandatory, compliance with it is evidence that the PCBU has meet the requirements of the Act but it is actually the Act and its regulations that contain the law.  In the right circumstances, mere compliance with the Code of Practice may not be enough and equally, in the right circumstances, failure to comply may be ok if the PCBU can show that the alternative approach that they have adopted is as effective, or more effective, in addressing the risks as the Code.   So at best non-compliance with the Code is evidence (not proof) of non-compliance with the Act and it shifts the burden to the PCBU to show that whatever else they did was sufficient in the circumstances.     It is, if you like, ‘a roadmap of good practice which can be’ departed from if the PCBU can show good reasons for the departure and that the protection of workers is equal to or higher than expected by the Code of Practice.

  1. Assuming it is mandatory, the code calls for consultation between the management and the workers to determine requirements. If you were “Management” hauled before an Inquiry or Court, what would be expected of you to show you had in fact complied with the code in all respects, including consultation?

As noted, the Code is not mandatory, but the Act and its regulations are.  And they require that the PCBU conduct a risk assessment and take steps that are reasonably practicable to reduce the risk.  The factors that have to be taken into account are shown in s 18 and r 42.

If I were “Management” hauled before an Inquiry or Court, I would want to be able to show that the Service had seriously considered the sort of risks that firefighters will face and considered how that should be addressed.  Merely asserting ‘it was too expensive’ won’t cut it, though cost is a relevant consideration after all the other factors have been assessed.  It is not practicable to introduce a risk reduction measure that is  ‘grossly disproportionate to the risk’ (see s 18(e)).  So having a fully equipped and staffed intensive care ambulance turn out with each fire appliance may reduce the risk of death or long term disability for an injured firefighter, but it would no doubt be at a ‘grossly disproportionate’ cost.

  1. So, what does the Law say in regard to first aid provision within CFS crews?

The law says that the CFS should negotiate with its workers (including volunteers) to determine the sort of risks that they are going to face.  I would suggest that it doesn’t take much imagination to think that firefighters face a significant risk of injury and that is why there is a need for training, equipment and PPE.   As a fall back would be the need for first aid because fire fighters will get injured – walking on uneven surfaces to fight fires, issues ranging from muscle strain to cardiac arrest from exertion, the effects of heat and dehydration, and of course, burns.   It is a function of the CFS ‘to provide efficient and responsive services in the country for the purpose of fighting fires, dealing with other emergencies or undertaking any rescue’ (Fire and Emergency Services Act 2009 (SA) s 59(1)(b)).  Firefighters may also be first on scene to assist others who have been injured in a fire or other accident.  They may be called upon to assist the other emergency services including SA Ambulance.  Performing first aid for people other than fire fighters would seem a foreseeable part of the duties of a firefighter and there is a duty on the CFS to provide adequate training to its workers to do their job and to ensure that they do not pose a risk to others (s 19(2) and 19(3)(f)).

If the PCBU can show its undertaken the risk assessment, taking into account the nature of the work performed by CFS firefighters, the location of that work which, in SA can involve some very remote locations perhaps only supported by a volunteer ambulance service, and that the PCBU has, in consultation with the workers, determined what are ‘adequate’ provisions to ensure that all workers have access to trained first aiders and first aid equipment, then they will have complied with the law.  If they haven’t done that sort of risk assessment then there is non-compliance.

Who would be in breach? Fundamentally the PCBU (which can include ‘the Crown’ (s 10)) so it can be the CFS.   Further those involved with the management of the CFS could be liable if they have failed in their duties to manage the Service in accordance with the Act.  An ‘officer’ must “exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation” (ss 27(1) and 27(5)(e)).   An officer is not a person wearing rank on their shoulder, rather an officer is ‘A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business or undertaking of the Crown [or a public authority]’ (ss 247 and 252).     In the context of the CFS officers could include the members of the Board of the Fire and Emergency Services Commission (ss 6 and 10), the Chief Executive (s 16), the Chief Officer of the CFS (s 61) and other officers appointed who can be said to be a decision maker affecting the ‘whole or substantial’ part of the CFS in regard to these issues.   The personal criminal responsibility that can be attributed to ‘officers’ does not apply to volunteers (s 34(2)).

Conclusion

The law does not set out minimum first aid requirements and certainly does not say ‘each crew should have at least one member appropriately trained in first aid to the appropriate level’.  Rather the law says the PCBU (the CFS) needs to have conducted a risk assessment to ensure that its workers, including volunteers, have access to ‘adequate’ first aid facilities at the workplace which includes the fireground.   How they meet that obligation is a matter for the PCBU taking into account the risk to firefighters and others, the nature of the CFS work (which is inherently dangerous), the remote nature of much of the work etc.

The response to the risk might be a first aider on every appliance, a first aider in every group or task force, an agreement to have SA Ambulance or St John Ambulance (SA) turn out with a brigade, having a first aider at each staging post, having a dedicated rescue helicopter with paramedic crew on standby etc. I’m sure any meeting of fire fighters and first aiders could come up with a myriad of other suggestions some of which will be more, and others less, ‘practicable’.

What the CFS needs to be able to do, should the matter ever be tested, is point to a reasonable, evidence based decision that has been arrived at after appropriate consultation and which takes into account all the relevant risk factors.  Evidence of compliance with the Code of Practice would give strong support to the claim that what has been done meets the requirements of the Act.

 


Categories: Researchers

The motor vehicle accident that’s not your fault

26 October, 2016 - 12:00

This question comes from a volunteer with Victoria SES.

I am an SES volunteer and a few days ago, during training the question was raised at what happens if, under EVS and going through a green light (within or outside the speed limit) you get t boned by somebody driving through a red light.

My opinion is that, if you are driving through a green light, EVS or not, you are in the right if somebody hits you.

I’m told that EVS means “Emergency Vehicle Status ie: lights and sirens on.”  The scenario described in this question sounds much like the scenario discussed in the post No Liability for NSW Ambulance Accident (October 19, 2016) save in that scenario the ambulance was proceeding into the intersection against the red light, and the oncoming car had a green light.

This question relates to travelling through a green light and getting collected by another driver who comes through a red light.  In those circumstances the other driver has a dual obligation to give way.  “A driver approaching or at traffic lights showing a red traffic light must stop—…” (Road Safety Road Rules 2009 (Vic) r 56) and  “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” (r 79).

We know however that just because you have a green traffic light you cannot simply drive through it without having regard to other traffic because we know sometimes vehicles don’t give way and some vehicles may intend to proceed through a red light – eg an emergency vehicle.   Hine v O’Conner [1951] SASR 1 involved a collision between a bus and a fire appliance.  The bus driver knew that traffic coming from the direction of the fire appliance were facing a stop sign.  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 … And, of course, O’Connor is presumed to know the law that fire-engines on their way to a fire, as well as other specified vehicles, are exempt from the duty of obeying such “Stop 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.”

Equally a driver, including the driver of an emergency vehicle is not entitled to think they have an ‘open road’ just because they have a green light and by inference other traffic must have a red signal.

I can imagine two situations, as shown below.

In situation 1 the car has driven through the red light and collided with the emergency service vehicle that is already in the intersection.  That has got to be the car driver’s fault.

In situation 2 the emergency service vehicle has collided with the car that is already in the intersection.  Consistent with the decision in Hine v O’Conner there could be some responsibility attributed to the driver of the emergency service vehicle because even though they had right-of-way, it must have been apparent at some point that the car was not going to give way  so there would be some way to avoid the accident, eg by slowing down.

In civil law fault can be apportioned, so in situation 2 you might say it was ‘10% the emergency vehicle driver’s fault and 90% the car driver’ (or some such proportion – see Wrongs Act 1958 (Vic) s 26).   Criminal law is not like that, in criminal law one or both persons may be ‘at fault’ but that doesn’t determine the guilt of the other.  In situation 2, above, the driver of the car could be guilty of the offences mentioned above (that is Road Safety Road Rules 2009 (Vic) rr 56 and 78).   The driver of the emergency service vehicle could only be guilty of something if the circumstances were so extreme that even with the green light and the flashing lights and beacons on, it was so unreasonable to enter the intersection as to constitute gross negligence – that is ‘such a marked departure from the standard of care that the reasonable person would have exercised, that it merits criminal punishment’ (see Further Prosecution over Fatal RFS Accident (August 17, 2016)).  It’s hard to imagine what those circumstances could be, but it is theoretically possible.

Conclusion

Even when proceeding through a green light, and even with emergency lights and sirens on, there is some obligation to be aware of other traffic, but in the situation described to me the emergency vehicle is ‘t-boned’ by somebody driving through a red light’, that is situation 1, above.  Prima facie the car driver will be ‘at fault’ so that’s the end of the issue.  One would expect that driver would, at least, get a traffic infringement notice.  Anyone who is injured in that accident would have whatever rights they may have against the driver at fault, noting that in Victoria at least, compensation for injuries in a motor vehicle accident do not require the injured person to prove fault (Transport Accident Act 1986 (Vic) s 35).

So what happens?  Naturally the police will investigate matters and there may well be a dispute as to who had the red light and who had the green, but assuming the evidence shows that indeed the emergency vehicle had the green light, then I suppose nothing happens as a matter of law.  No doubt there might be questions asked at agency level to determine if there are lessons to be learned from the event and if someone were to die there might be a coronial hearing to see if there are any lessons to be learned; but for the agency and driver if there is no fault, there are no legal consequences..


Categories: Researchers

Red/blue lights on NSW SES boats

25 October, 2016 - 15:00

I’m asked if I

… know of any legislation in relation to the use of reds and blues on NSW SES vessels. On a community engagement activity NSWPF informed that they were not to have them fitted to boats and only the RMS and Police could. Seeing as most SES medium to large punts and boats that I have seen have them fitted it would be good to know whether they are actually illegal to be used by us.

Before I could answer my correspondent did some further research and wrote:

Never mind found the section from the RMS Intranet, however it doesn’t specify that SES can. It does state on behalf of the RMS, Police, Ambulance and any Fire Service you can use reds and blues for an emergency patrol.

So I assume we can have them fitted but only use them under direction of those agencies.

Reference is Clause 7 of the Marine Safety Regulation 2016. (Unfortunately it’s not a piece of legislation under the RMS public site, only found it after looking at a manual for the RMS)

It does seem like an oversight to not include the SES as we have the largest fleet of any emergency service and training to rescue distressed individual.

Of course the SES is not the combat agency for maritime rescue but if something would occur I am sure that the use of lights would increase safety especially when an on water emergency develops with one of our boat crews nearby.

The Marine Safety Regulation 2016 (NSW) cl 7(1) says:

A person must not operate a vessel that displays an emergency patrol signal unless:

(a) the display has been authorised in writing by RMS for the purpose of enabling the carrying out of emergency patrol duty, or

(b) the vessel is operated on behalf of RMS, the NSW Police Force, the Newcastle Port Corporation, the Ambulance Service of NSW or a fire service for the purpose of carrying out an emergency patrol duty, or

(c) the vessel is operated on behalf of Volunteer Marine Rescue NSW (ABN 98 138 078 092) for the purpose of carrying out any emergency patrol duty.

An ‘emergency patrol signal’ is ‘an all-round flashing blue light, or flashing blue and red lights’; “emergency patrol duty” means ‘an urgent patrol or duty arising from an accident, hazard or other emergency or authorised by RMS’ (cl 7(4)).

The first thing to note is that the red/blue lights can be fitted to a vessel operated ‘on behalf of RMS, the NSW Police Force, the Newcastle Port Corporation, the Ambulance Service of NSW or a fire service’.    An SES vessel is operated by the SES, it is not operated ‘on behalf’ of one of those other agencies.  To be operated ‘on behalf of’ would be more like a charter system, for example the NSW Ambulance helicopter service, using helicopters all painted up in NSW Ambulance logos, is operated by a private company CHC (see https://en.wikipedia.org/wiki/CHC_Helicopter#Ambulance).   They operate a helicopter ‘on behalf of’ NSW Ambulance.  Similar arrangements may be made with respect to boats for emergency services where they operate under contract or other arrangements.   It may be that if there was an emergency and the SES were asked to take paramedics to the emergency and transport them, and their patient back to dry land, that this would be operating ‘on behalf of’ the ambulance service, but I think a better view is the vessel is still being operated by the SES as part of the SES’s function of assisting the other emergency services (State Emergency Service Act 1989 (NSW) s 8(1)(g)).

Regulation 138 allows for the use of blue lights by ‘an accredited rescue unit (within the meaning of the State Emergency and Rescue Management Act 1989)’.  The SES is the principle agency for flood rescue ((State Emergency Service Act 1989 (NSW) s 8(1)(aa) and (a)).   Given the statutory authority the SES does not need accreditation by the State Rescue board for flood rescue operations (see also State Rescue Policy (3rd Edition Version 3.5, December 2014), [1.18] and [1.36]).   It follows that the SES can have blue lights (and note it does not say ‘blue flashing’ lights) on vessels that are used for flood rescue.

Conclusion

The answer is that the SES can display an ‘emergency patrol signal’ – that is ‘an all-round flashing blue light, or flashing blue and red lights’ – if it has been ‘authorised in writing by RMS’ to do so.  The problem is that this authorisation is not readily available for public inspection.   The best we can do is assume, or at least hope, the SES has received the relevant authority, in writing.


Categories: Researchers

Immunity clauses, power and functions are is there a difference?

25 October, 2016 - 11:04

This came as a comment on the post RFS Fatal Collision and s 128 of the Rural Fires Act (October 14, 2016).  The answer is too long to put up as a comment, so it gets a post on its own, and if you’re not a lawyer, this may be hard going!

The comment was:

Thanks for your posts on the M1 Collision. They are quite helpful.

Regarding liability exclusion in the NSW Rural Fires Act, I understand that Section 128 does not apply to criminal liability, and I also understand why it would not apply to a motor vehicle collision but I question your second point – that it applies only to the execution of powers under the act.

You have quoted case law on a similar provision in the Fire Brigades Act 1909, but the relevant clause in that act states that the exclusion applies when a firefighter is “exercising any powers conferred by the Act or the by-laws”, whereas the Rural Fires Act clause states that the exclusion applies when a firefighter does or omits to do a matter or thing in good faith “for the purpose of executing any provision (other than section 33) of this or any other Act”. Isn’t the meaning of the term ‘provision of this or any other Act’ much broader than the meaning of the term ‘powers conferred by the Act’? Indeed, you describe the liability exclusion clause itself as a ‘provision’.

The common understanding of the liability exclusion section of the Rural Fires Act is that it applies whenever a member of the RFS is carrying out any statutory function of the RFS, whether a power is involved or not. Doesn’t the term ‘provision of this or any other Act’ in the Rural Fires Act liability exclusion clause include the ‘Functions of the Service’ under section 9 of the Act?

To answer that I set out below the text of the Fire Brigades Act 1909 (NSW) s 46 (because it was the subject of discussion in Ardouin’s case, discussed in the first post), the Bushfires Act 1949 (NSW) s 48, the Fire Brigades Act and the Rural Fires Act 1997 (NSW) s 128.  The key words are highlighted.

Fire Brigades Act 1909 (NSW) s 46 Bushfires Act 1949 (NSW) s 48 The board, the chief officer or an officer of the board exercising any powers conferred by this Act or the by-laws, shall not be liable for any damage caused in the bona fide exercise of such powers No proceedings whether at law or in equity shall lie or be made or allowed by or in favour of any person against the Crown, the Minister, the Minister for Local Government, a member of the Committee, a council, an officer or employee of the Board of Fire Commissioners of New South Wales or the Forestry Commission of New South Wales, a fire control officer, a fire patrol officer, a captain, deputy captain, group captain or deputy group captain of a bush fire brigade, or any person acting in the execution or intended execution of this Act in respect of anything done bona fide under and for the purposes of this Act. Fire Brigades Act 1989 (NSW) s 78 Rural Fires Act 1997 (NSW) s 128 A matter or thing done, or omitted to be done, by the Minister, the Commissioner, any member of staff of Fire and Rescue NSW, any member of a fire brigade, any member of a community fire unit or any person acting under the authority of the Commissioner does not, if the matter or thing was done, or omitted to be done, in good faith for the purposes of executing this or any other Act, subject such a person personally, or the Crown, to any action, liability, claim or demand. A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.

 

The gist of the question is ‘do the words “executing any provision” mean anything significantly different to “exercising any powers”?’   I don’t think they do.

Fire Brigades Act 1909 (NSW) s 46 and Bushfires Act 1949 (NSW) s 48

In Stephens v Stephens (1970) 72 SR (NSW) 459 the NSW Court of Appeal had to consider s 48 of the Bushfires Act 194.   In this case there was a collision with a fire appliance that was stopped by the side of the road whilst the crew were fighting a bush fire. A passenger in the vehicle was injured and sued the driver of the firefighting vehicle. The driver relied on s 48 of the Bush Fires Act 1949.  It was held that the Act only ‘confers immunity … only in respect of things done pursuant to an authority which the Act itself confers’.   The acts which the brigade were engaged in, that is fighting a fire, was not covered because ‘… the Act did not confer authority … to perform the acts of which the plaintiff complained, such acts not being prohibited by the general law and requiring no authority’ (p 459).

Mason JA (with whom Moffit JA agreed; Manning JA dissenting)  said (at 462) that although ‘there was some difference in language in s 48 compared to s 46 of the Fire Brigades Act 1909 …’ the difference was not material.  He went on to say (p 463)

The section [s 48] should be regarded as conferring immunity from action on the defendant as a person acting in execution of the Act only in respect of an act done pursuant to an authority which the Act itself confers. If the provisions of the Act conferred authority on the defendant to have the truck of which he was the driver stationary on the highway, with its motor idling, while water from the truck was sprayed on the seat of the fire, then s 48 has the effect of protecting the defendant from the consequences of performing the act negligently and occasioning injury to the plaintiff.

But the Act did not confer any particular authority.

[The Act] does not in terms authorize the putting out of bush fires, evidently for the reason that the extinguishment of a bush fire is not in itself an unlawful act which requires an authorization by statute.

In Electro Optic Systems Pty Ltd v State of New South Wales; West and Anor v State of New South Wales [2014] ACTCA 45 Jagot J said (at [500]) that Stephens v Stephens is authority for the proposition that the “… predecessor provision to s 128 (s 48 of the Bush Fires Act 1949 (NSW)) was engaged only where the conduct in question involved the exercise of a specific statutory authority not otherwise lawful.”

Discussion #1

The outcome of those decisions is that the use of the words ‘exercising any powers conferred by this Act’ are not significantly different from the words ‘acting in the execution or intended execution of this Actfor the purposes of this Act’. 

Those Acts only came into play where the conduct in question was authorized by the legislation because, without legislative authority, the acts in question would be otherwise unlawful.

Rural Fires Act 1997 (NSW) s 128

The question now is do the 1997 words – ‘for the purpose of executing any provision … of this or any other Act’-  mean anything significantly different to the 1949 words –acting in the execution or intended execution of this Actfor the purposes of this Act’?

One refers to ‘executing any provision’ and the other the execution of ‘this Act’ but the key concept is still ‘execution of’.

Section 128 was discussed in detail in Electro Optic Systems Pty Ltd v State of New South Wales; West and Anor v State of New South Wales [2014] ACTCA 45 (the Canberra bushfires litigation).   In that case both the trial judge and the Court of Appeal agreed that the defendant (New South Wales) could rely on s 128 as the officers of the Rural Fire Service and the Forestry Commission were acting in good faith.  The plaintiff’s in that case argued (at [499]) that “a strict interpretation of s 128 requires the identification of a provision of the Act said to have been executed before s 128 will apply”.   Jagot J disagreed.  She said (at [503]; emphasis added):

The plaintiffs’ submissions about s 128 of the Rural Fires Act fail to confront the true nature of what was occurring between 8 and 18 January.  In determining the strategy, the incident controller was exercising powers under the Rural Fires Act.  For the reasons given above, the powers being exercised, to co-ordinate all agencies and determine the overall strategy to deal with the fire, only existed because of the Rural Fires Act and could not lawfully be done without statutory authority.  It follows that the plaintiffs’ submissions are based on a misconception about the operation of the Rural Fires Act and how it governed every strategic decision made or not made by the incident controllers between 8 and 18 January.

With respect to the difference between s 48 of the 1949 Act and s 128, Katzmann J said (at [586]):

Section 128 of the Rural Fires Act replaced s 48 of the Bush Fires Act.  Section 48, in terms, provided protection from liability only for acts and not omissions.  It will be recalled that the expression used there was “acting in the execution or intended execution of this Act in respect of anything done bona fide under and for the purposes of this Act”.  When the Rural Fires Act was introduced, it is plain that Parliament intended to expressly extend the protection from liability to omissions as well as acts.

There is no suggestion however that the Parliament intended to broaden the scope of operation of the section other than to include omissions.   Katzmann J did discuss the phrase ‘For the purpose of executing a provision of an Act’.  She discussed the difference between s 46 of the 1949 Act and s 128.  She said (at [697]):

Section 46, it will be recalled, protected the relevant officers from liability for “damage caused in the bona fide exercise” of the powers conferred by the Act or the by-laws.  It did not refer to acts or omissions.  Nor was it expressed to apply where the officers had conducted themselves “for the purpose of executing” a relevant statutory provision.  Nevertheless, the decision in Ardouin has been applied to provisions very similar to s 128.  In particular, it was applied in Stephens [v Stephens; discussed above].

Her Honour (at [704]-[705] referred to some non-firefighting cases.  She said:

In Ombudsman v Laughton (2005) 64 NSWLR 114 … Spigelman CJ said (at [25]) that the words “executing this or any other Act” in that section did not necessarily extend to the performance of any statutory function or the exercise of any statutory power.  Handley JA said (at [29]) that the phrase “in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act” limited the protection offered by the section to “acts or omissions done or omitted in exercising or refusing to exercise the statutory powers of obtaining information and investigating complaints conferred by the Act”.

In Micro Focus (US) Inc v New South Wales (2011) 195 FCR 506 … Jagot J … held:

A statutory office-holder executes an Act by doing something the Act requires or authorises to be done.  Acts, matters or things done or omitted to be done for the purpose of executing an Act, accordingly, occur in the process of doing that which the Act requires or authorises.

With respect to the NSW RFS and the Canberra fires, Her Honour said (at [706]-[708]):

… developing and implementing a strategy for the fighting of the fires the incident controllers were doing something which was both authorised and required by the Rural Fires Act…

In contrast to the position in Stephens, the decisions in question derived their authority from the statute.  As Jagot J has explained in some detail, the powers the incident controllers were exercising “only existed because of the Rural Fires Act”.  The Rural Fires Act gave effect to the plan of operations.  The plan of operations was the means by which Ms Crawford became incident controller and therefore the person “responsible for the co-ordination of the firefighting activities of all involved organisations and strategic decisions”.  The plan of operations conferred functions on Ms Crawford (s 55(1)(b)), who was required, as far as practicable, to carry the plan into effect (s 60(6)).  At 1 pm on 9 January Mr Arthur became incident controller because of a declaration the Commissioner made under s 44 of the Act.  In accordance with the plan of operations, he then became responsible for coordinating the fire fighting activities of all involved organisations and the making of strategic decisions.  The plan of operations conferred functions on Mr Arthur (s 55(1)(b)) and he was required to take the plan into account (s 44(3)).  Without this authority, neither Ms Crawford nor Mr Arthur would have had the power to commandeer the resources necessary to fight the fires or to make the strategic decisions.

Moreover, the strategy was developed and implemented for the purpose of executing provisions of the Act that conferred powers “which of their nature [would] involve interferences with persons or property” and “detriment or disadvantage to others, either necessarily or in consequence of [their] improper or faulty exercise” (Ardouin per Dixon CJ at 109–110).  The strategy involved containing the fires.  That meant that vegetation had to be removed by rake-hoe or bulldozer or both.  The powers required to do these tasks were conferred by s 25 of the Act, which relevantly permits the destruction or removal of vegetation and the establishment of fire breaks on land by officers of a rural fire brigade where persons or property are, or are likely to be, endangered by fire.  The strategy also involved some back-burning.  According to the definition in the Fire Management Manual published by the NPWS, back-burning is starting a fire intentionally with the object of consuming the fuel in the path of a wildfire.  It is unlawful to light a fire without giving notice or obtaining some form of permit, approval or authority (ss 86, 87, 88).  Fire fighting authorities are exempt from the requirement to give notice or obtain a permit if lighting a fire for the purpose of back-burning (ss 86(2), 87(2), 88(2)) and are exempt from the requirement to obtain various other approvals or authorities if carrying out an emergency fire fighting act (Pt 6A).

Discussion #2

In Ardouin’s case the High Court said that a section like s 128 had to be strictly construed.  They said that s 46 of the 1909 Act only applied where the relevant officer was doing something that he or she was only authorised to do by statute and that would be an illegal interference with the rights or property of another without the relevant statutory authorisation.

In Stephen’s case the NSW Court of appeal said that, even though the 1909 Act referred to an action taken ‘exercising any powers’ and the 19 49 Act referred to ‘acting in the execution or intended execution of this Act’ there was no significant difference between the provisions and the immunity would only apply where the action taken was ‘an act done pursuant to an authority which the Act itself confers’.  If no legislative authority was required, then the section did not apply.

In Electro Optic Systems v NSW the premise of the need for statutory authority was not disputed however the claim that the defendant had to point to a particular section for a particular action was.  The court took a broad view of all the actions that were being undertaken on that day but it still applied only to actions that ‘could not lawfully be done without statutory authority’.  There needs to be reference to ‘something the Act requires or authorises to be done’ and not just ‘any statutory function or the exercise of any statutory power’.  In determining that s 128 was available the court pointed to many provisions that authorised the various incident controllers to take action that they could not take without that statutory authority such as directing fire agencies and developing a strategy that required the use of various authorities, even if the incident controllers themselves were not personally exercising those powers – eg they were not the ones setting backburns or removing vegetation.

The questions asked

What I was asked was:

Isn’t the meaning of the term ‘provision of this or any other Act’ much broader than the meaning of the term ‘powers conferred by the Act’?

No, I don’t think it is ‘much’ broader.  The discussion in Electro Optics may have been broader than in earlier cases because of the nature of the incident being a s 44 fire not just a single fire commander making a decision to park or pull down a wall.  But even in that context the court held that the immunity applied when the agency was relying on statutory authority, or power, to do what they would otherwise not have the authority to do.

The common understanding of the liability exclusion section of the Rural Fires Act is that it applies whenever a member of the RFS is carrying out any statutory function of the RFS, whether a power is involved or not. Doesn’t the term ‘provision of this or any other Act’ in the Rural Fires Act liability exclusion clause include the ‘Functions of the Service’ under section 9 of the Act?

The statutory functions of the RFS are set out in s 9(1).  It says:

The NSW Rural Fire Service has the following functions:

(a) to provide rural fire services for New South Wales,

(a1) to issue public warnings about bush fires and bush fire threats in the State for the purpose of protecting life and property,

(b) to assist other emergency services organisations at incidents and at emergencies under the control of those organisations,

(b1) to provide advisory services (whether within or outside the State) relating to fire fighting and other matters with respect to which it has expertise,

(c) to carry out such other functions as may be assigned to it by or under this or any other Act,

(d) to do anything necessary for, or incidental to, the exercise of its functions.

That is not dissimilar to the list that was set out in the Bushfires Act 1949 (NSW) s 22 and discussed in Stephen’s case.   In that case mere reference to the functions was not sufficient.  It is still the case that there are many things the RFS can do to meet the functions but which require no specific authority.  The RFS does not need any authority to contact a radio station and ask them issue a warning, but it may do so if it wants to require them to do so.  There is no need for any authority to warn people of danger, but there is if the RFS wants to compel them to evacuate.

If s 128 did apply to any action that a person believes is ‘carrying out any statutory function’. If it did it would be an unacceptable licence to do anything.  It would mean a firefighter or the RFS or the State could rely on the section if someone did something and said ‘I honestly believed what I did was to provide rural fire services’ even if what they did was something for which there is no authority, eg commandeer private assets, detain a person even for their own safety or because of a fear that they may start a fire etc.  Section 128 is not a licence to do whatever seems like a good idea at the time, rather it is is an indemnity from civil liability for doing what the relevant Act authorises or permits even when it is done negligently: ‘… it protects the person it refers to from liability for damage resulting from acts which are done in good faith and directly in the exercise of a power that the statute conferred and whether they are done skilfully or negligently’ (Board of Fire Commissioners v Ardouin (1961) 109 CLR 105, 128( Windeyer J)).

Conclusion

In light of the case law ‘executing a provision of the Act’ does not, in my view, mean attempting to fulfill the functions of the RFS.  It involves doing something (or choosing not do something) that ‘the Act requires or authorises to be done’.   Section 9(1) does not ‘require’ or ‘authorise’ anything to be done.

 


Categories: Researchers

Can you keep politics out of the CFA/UFU/VFBV dispute?

19 October, 2016 - 21:31

Here’s an interesting question, most of which I can’t answer but I’ll make some comments.  My correspondent is a volunteer fire fighter in Victoria.  She says:

I have some questions, my understanding is that the above bill allows VFBV to be represented when EBAs are negotiated between CFA and UFU, is that correct?

Notwithstanding that, the current EBA is in the Supreme Court due to some clauses that the Volunteer fire fighters think are discriminatory towards them, such as the attendance of 7 paid fire fighters but WHY and HOW did the conflict start in the first place?  I have never seen so much animosity between two groups of people working for the same organisation?  What is the historical basis of this – is it based on the political backing of Labour on one side and Country/ Liberal party on the other side?

What true safe guards can be put within the institutional setting of CFA to avoid political interference from both parties such as determining the resource allocation based on needs analysis…. I don’t know, it seems a waste of time and a lot of hatred to fight over something that we should not.

The ‘Bill’ to which my correspondent refers to is the now Fair Work Amendment (Respect for Emergency Services Volunteers) Act 2016.    The relevant section provides a new s 254A in the Fair Work Act 2009 (Cth) which says:

(1)  A body covered by subsection (2) is entitled to make a submission for consideration in relation to a matter before the FWC if:

(a)  the matter arises under this Part; and

(b)  the matter affects, or could affect, the volunteers of a designated emergency management body.

(2)  The bodies are as follows:

(a)  a body corporate that:

(i)  has a history of representing the interests of the designated emergency management body’s volunteers; and

(ii)  is not prescribed by the regulations for the purposes of this subparagraph;

(b)  any other body that is prescribed by the regulations for the purposes of this paragraph.

Without tracing it’s history, I imagine the VFBV meets the definition set out in s 254A(2) in which case they are entitled to ‘make a submission’.  That is not the same as being represented in the CFA and UFU negotiations, but it does allow them to make a submission to the Commission if the Commission is asked to approve an Enterprise Agreement or make some other relevant ruling.

As for how did the conflict start?  I’m a lawyer, not a historian so it’s not a matter that I can properly comment on.  Is it based on inherent political views?  Again I can’t say for sure but certainly one might infer that the Victorian Labor Government has strong ties with the union movement and the Coalition Federal government has an ideological set against trade unions.  As I say it’s not for me to say but I do note the following from the Prime Minister’s Press Release (https://www.pm.gov.au/media/2016-08-31/fair-work-amendment-respect-emergency-services-volunteers-bill-2016).  He says:

The actions of the United Firefighters Union of Australia have placed the Victorian Country Fire Authority in the position of having to choose between the best interests of its brave volunteers and conceding to the demands of the union.

What I find interesting is the Prime Minister is setting the matter up as ‘volunteers’ v ‘union’. The UFU represents the interests of its members, the employed firefighters.  The VFBV no doubt claims to represent the interests of the volunteers, but the VFBV might also be considered a union (Fair Work (Registered Organisations) Act 2009 (Cth) s 19).  So why doesn’t he say that the CFA has to choose between the demands of the VFBV and the UFU; or that the CFA is choosing between the best interests of the brave volunteers and the brave employees?  It is certainly representing that the union is something other than the collective representative of the employees and I would infer represents an anti-union philosophy.

As for safe guards to avoid political interference that really isn’t possible.  Governments are there to govern and by its nature that is political.  The CFA is a government authority – the CFA ‘is subject to the general direction and control of the Minister in the performance of its functions and the exercise of its powers’ (CFA Act s 6A(1)).  As for the Federal Government intervention, Victoria has passed its industrial relations power to the Commonwealth (see The Commonwealth setting terms and conditions of employment for Victorian fire fighters (May 20, 2015)).   The Commonwealth government of course has to change its laws when it sees the need to do so.  That is also, inherently political.  This issue may have been brought to front as it took place during a federal election so of course the parties, in particular the federal government was going to make political mileage out of it. That is what it is to be ‘political’.

 

 


Categories: Researchers

No liability for NSW Ambulance accident

19 October, 2016 - 17:47

On 14 October 2016, Judge Taylor of the District Court of NSW handed down a decision in Logar v Ambulance Service of New South Wales Sydney Region [2016] NSWDC 255 (and thank you Bill Madden, solicitor with Slater and Gordon for brining this to my attention).  The case deals with an accident that occurred in June 2011 when the plaintiff entered an intersection with a green light and collided with an ambulance that was responding to an emergency.

The case does not set a significant precedent, as I’ll explain below, but it is still of interest.  The facts are that the plaintiff was travelling in lane 2 of a four lane road in Penrith.  The two lanes on her right (lanes 3 and 4) were dedicated right hand turn lanes, and the traffic in those lanes was facing a red arrow and so the cars there were all stopped.    The plaintiff had a green light in her favour and entered the intersection at 55km/h.   As she entered the intersection she collided with the ambulance.  The plaintiff claimed that her window was open about 10cm and she had no radio on.  She did not hear any siren or see any flashing warning beacons.

The driver of the ambulance gave evidence that she was proceeding to a category ‘1B emergency’ (the judge said (at [9]) “This is an ambulance code indicating that the assignment involves an unconscious patient with breathing difficulties. It is the second highest level of emergency.”)  She said that the lights and siren were activated from about 500m before she entered the intersection.   She said the traffic in front of her was stopped at red lights so she moved into the most left hand lane which was a bus lane.  She came to a stop at the red light and waited until traffic on her right had stopped.  She then entered the intersection and stopped in front of the vehicles that were stopped at the red turning arrow.  She continued across the intersection, passed a stopped vehicle in lane 2, entered lane 1 and the collision occurred.   My interpretation of the accident (as described by the paramedic) is shown below.  (The ambulance is represented by the red rectangle):

Putting aside the poor quality of the diagram, that shows some key differences. In particular the plaintiff said she was in lane 2 and there was no-one in front of her.  The driver of the ambulance said that she passed a stationary vehicle in lane 2 and the collision occurred as she entered lane 1.  The judge found (at [21]) that ‘Either [the Plaintiff] was always in lane 1, or she changed into lane 1 moving past the car or cars in lane 2 as she travelled towards the intersection’.

This case is not really a precedent because it turned on the facts, not the law.  The question was who was given the correct version of events.   The paramedic was supported by two independent witnesses who had been in a vehicle in lane 3.  They confirmed that the lights and sirens of the ambulance were activated and that there was indeed a stationary vehicle in lane 2.   In the circumstances the judge preferred the evidence of the paramedic and the two independent witnesses, which is not to say the plaintiff was lying, just that her recollection was wrong.    The judge found (at [19]) that the paramedic ‘proceeded slowly and cautiously through a red light at a controlled intersection while having to deal with a high level emergency.’

The first allegation of negligence was a claim that the driver of the ambulance was negligent because she entered the intersection against a red light and without her warning devices activated.  The judge found that the warning devices were activated so that claim failed.

An alternative claim was that the driver was negligent for proceeding into lane 1 when her view was necessarily obstructed so she should have moved more onto the south side of the intersection to get a better view.    The court rejected that argument too.  Judge Taylor said that to move to the south would only have made a marginal difference and would have increased the risk of collision because the ambulance would have ‘interfered’ with more traffic; basically it would have been a more complex manoeuvre.

The judge did consider the issues set out in the Civil Liability Act 2002 (NSW) regarding steps a reasonable person should take in the face of a risk.  There is clearly a risk of collision when entering an intersection, more so when proceeding against a red light and when ‘responding’ to an emergency.   The judge found that the ambulance moved slowly into lane 1 so that there was an opportunity for other drivers to see the ambulance and avoid it; other precautions (such as not proceeding but ‘precautions resulting in delay would burden the injured or ill person to whom the ambulance was travelling to assist. The final consideration in s 5B(2)(d), the social utility of urgent and speedy responses by ambulances, is readily apparent.’  At [31]-[33] the judge said:

… the real question is whether Ms Riches [the paramedic] should have avoided the risk of harm and remained stationary, not putting the nose of her vehicle into lane 1 until such time as either a car in lane 1 had pulled up at the intersection (which would preclude any car from proceeding into the intersection from that lane) or until the lights had changed so that she could proceed through on a green light … whilst either of those options would have been preferable in ordinary circumstances, this was an emergency situation. It did not, I think, allow Ms Riches the option of waiting for the lights to change or the lane to block. As much as she was able she checked for movement in the lane and she edged out the nose of her vehicle partly across the lane. That conduct resulted in the collision of the front corner of both vehicles when Mrs Logar, who increased her speed to near the speed limit, failed to notice the ambulance’s lights or siren, failed to notice the surrounding stationary vehicles, and who perhaps changed lanes as she passed stationary vehicles to enter the intersection.

In my view, the action Ms Riches took was a reasonable course to take bearing in mind the emergency situation she faced and which might gravely worsen if she had made no attempt to cross the final lane of traffic.

For these reasons, I do not accept that Ms Riches’ conduct was negligent.

As I said this case turned on the facts, not the law.  The law requires that a drive exercise reasonable care.  The judge found that paramedic Riches did exercise reasonable care in the way that she drove the ambulance and proceeded across the intersection.  In that case there was no liability.

The judge did go through the process of calculating the amount of damages he would have awarded, just in case there is an appeal. He came to the conclusion that if the ambulance service was liable, the plaintiff would have been entitled to damages of $347,094.

The choice of defendant

One thing to note, given everyone’s concern about getting sued, is the defendant.  The defendant was not Paramedic Riches.  No-one was suing her; they were suing the Ambulance Service of NSW.  No doubt the case was actually being run by their insurer, probably the NSW Self Insurance Corporation (NSW Self Insurance Corporation Act 2004 (NSW)).  Legal actions are not taken in the name of the insurer but in the name of the vehicle owner (Motor Accidents Compensation Act 1999 (NSW) ss 112 and 113).  So the defendant was the Ambulance Service but any damages would be paid out of the NSW Self Insurance Fund.  The driver was never at risk of being personally sued or liable, and that was not because the Ambulance Service believed her, it’s because that is the law.

 


Categories: Researchers

My latest publication

14 October, 2016 - 11:56

I’m pleased to report that the Research Handbook on Disasters and International Law, edited by Susan C. Breau and Katja L.H. Samuel both of the University of Reading (UK) has now been published.     I had the pleasure of contributing chapter 16 on ‘The international law of wildfires’ to this publication and I’m grateful to the editors, and the publisher Elgar, for the opportunity to contribute.


Categories: Researchers

RFS fatal collision and s 128 of the Rural Fires Act

14 October, 2016 - 11:30

I’ve been asked this a couple of times so I thought it warrants its own post.  This again deals with the fatal collision involving an RFS vehicle where the driver stands convicted of negligent driving causing death; see Further prosecution over fatal RFS accident (August 17, 2016).  A correspondent asks:

Could you please explain why Clause 128 of the Rural Fires act did not apply and what this finding means for the value of Clause 128.

Section 128(1) of the Rural Fires Act 1987 (NSW) says:

A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.

The definition of ‘protected person or body’ in s 128(2) includes the Commissioner of the RFS and ‘any member of the Service’.   So why could the driver in this case not rely on it?  It should be noted that it was not argued that s 128 applied so presumably neither counsel for the Crown nor for the accused thought it was relevant.  There are many reasons to support that view.

First, section 128 of the Rural Fires Act is referring to civil liability, that is the obligation to pay compensation.  These sections are not intended to extend to criminal liability. In Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356 the court had to consider whether s 78 of the Fire Brigades Act 1989 (NSW) extended to a criminal prosecution under the Occupational Health and Safety Act 1983 (NSW).  Section 78 used very similar words to s 128 of the RFS Act.   Like the RFS Act it exempted any member from liability ‘if the matter or thing was done in good faith for the purposes of executing this or any other Act’ (see [43] of the judgment).  Boland J (at [50]) said:

  1. The combination of words “action, liability, claim or demand” are more likely to be associated with civil proceedings and not criminal proceedings;
  2. In more recent times, it has become recognised that the term “action” was not appropriate to describe criminal proceedings: …
  3. There was no case brought to the attention of the Court where the words “action, liability, claim or demand” had been held to grant immunity from criminal liability. This is despite the fact that the words have appeared in exemption from liability provisions in UK statutes for at least 150 years and in Australian statutes for at least 120 years:

He came (at [51]) to the ‘tentative’ view that the Act did not provide ‘a general immunity from criminal liability’ for a variety of reasons.  Ultimately he did not have to decide that issue so that case, being a single judge of the Industrial Court of NSW is not a ‘binding’ precedent but it is persuasive that this provision does not extend to criminal prosecution.

This case was a criminal prosecution so on the basis of this decision the section would not appear to apply.

Second, these immunity provisions have been considered before when dealing with motor accident cases.  The leading case on the issue was before the High Court of Australia back in 1961 – Board of Fire Commissioners of NSW v Ardouin (1961) 109 CLR 105.  In that case there was a collision between a fire appliance and a motorcycle.  The relevant provision there was s 46 of the Fire Brigades Act 1909 (NSW) which provided that ‘the Board, the chief officer, or an officer of the Board, exercising any powers conferred by the Act or the by-laws, shall not be liable for any damage caused in the bona fide exercise of such powers’ ([2], Dixon CJ).    Dixon CJ went onto say:

… s. 46 it does not cover the use of the roadway by fire brigade vehicles for the purpose of proceeding to a fire … When s. 46 speaks of the bona fide exercise of the Board’s powers it appears to me to be referring primarily to the exercise of powers which of their nature will involve interferences with persons or property… [The] exercise of statutory power to do what would otherwise be illegal acts… it is not, however, expressed in terms which make it applicable to the doing of things in the course of performing the functions of the Board, which are of an ordinary character involving no invasion of private rights and requiring no special authority.

Driving to the scene of the fire, even under lights and sirens, was not a specific function of the Brigade and did not involve any action that involved an invasion of private rights and so was not the sort of conduct s 46 was intended to apply.

Kitto J (at [10]) said:

To drive a vehicle on a public street, for the purpose of dealing with a fire or for any other purpose, needs no grant of power… and accordingly damage caused by an officer of the Board in driving on a public street is not damage caused in the exercise of a power conferred by [the Act]. It is caused in the exercise of the right of way which anyone may exercise in virtue of the public character of the highway.

Windeyer J (at [3]) said:

No special power is conferred by the Act and none is needed to enable members of a fire brigade to go to a fire or to enable a fireman to drive a fire engine upon a highway to the place of a fire. But, said the appellant, there is a power conferred by the Act to disregard speed limits and traffic regulations. But only by what I think is a mistaken use of language can such exemptions from rules that apply to other persons be described, in this context, as conferring powers. A person who avails himself of an immunity does not in such a case as this exercise a power.

He went on to say (at [4]):

 … where the section applies, it protects the person it refers to from liability for damage resulting from acts which are done in good faith and directly in the exercise of a power that the statute conferred and whether they are done skilfully or negligently. In other words, an officer expressly empowered to do something can decide, not only that it is to be done, but how it is to be done – and his actions, directions and decision cannot, if bona fide, be later canvassed before a jury on the ground that they were imprudent or that what was done was done in a negligent manner. The powers to which s. 46 relates are powers that may often have to be exercised by the officer in control on the spot in an emergency, according to his judgment, and without his being restrained by considering what other persons might perhaps think about the matter afterwards.

There is no specific power in the RFS Act to drive an appliance nor is such a power required (see also particular Stephens v Stephens (1970) 92 WN (NSW) 810).  Section 128 of the RFS Act is directed to the use of specific powers in that Act – eg s 22A Power to remove persons or obstacles and s 23 Power to enter premises.

Ardouin’s case is still a leading authority on the interpretation of these types of clauses, not just in road traffic cases but to make the point that the courts view these very strictly and limit their application to the narrowest scope possible.  As Gummow J said in Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532 (at 541) these provisions protect ‘the interests of a statutory authority which is given privileges in the nature of a monopoly for provision of a public service, at the expense of what otherwise would be individual justiciable rights’.  Denying the rights of a citizen is something that should only be done with care and clear words so liability exclusion clauses ‘should be strictly construed’ (see Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356, [50] and the many cases cited there, including Ardouin’s case).

Finding that s 128 does not apply to driving makes sense for another reason.  Everyone contributes to the Compulsory Third Party insurance scheme.  This scheme creates a pool of money to help meet the inevitable costs of road accidents. We could reduce the road toll to zero by not have roads or cars but it’s not a price anyone is willing to pay.  So we all contribute to the CTP scheme and when a person is injured, the scheme meets various medical and other costs – see Motor Accidents Compensation Act 1999 (NSW).   RFS vehicles don’t have to be registered (Road Transport (Vehicle Registration) Regulation 2007 (NSW) Schedule 1, cl 121) but even so they are covered by the CTP scheme (Motor Accidents Compensation Act 1999 (NSW) ss 33 and 39(3)).   The CTP scheme is a scheme of indemnity (Motor Accidents Compensation Act 1999 (NSW) s 10) so it guarantees that the driver at fault is not personally liable to meet the cost of damages.   It follows that is s 128 did apply to civil liability for motor accidents, a person injured in a collision with an emergency vehicle would not be able to draw on the pool of money created to compensate people injured in accidents, and it would make no difference to the driver who would not be paying those damages in any event.  Such a rule would simply be unfair.  It is for this reason that general volunteer liability protection does not apply where a volunteer injures someone whilst driving – Civil Liability Act 2002 (NSW) s 65.

Finally, s 128 only applies where the action was taken ‘in good faith for the purpose of executing any provision (other than section 33) of this or any other Act’.  There would be a real question in this case whether or not the act of commencing, and completing, the u-turn was done in good faith. Remember that the driver was relying on the ‘emergency’ provisions to make a u-turn in an emergency turning area and when using the red/blue warning lights.  But there was no emergency.  He was returning to collect his crew.   The judge found that he failed to stop because ‘it was easier for him to keep the momentum going rather than stop and go back into first gear’.   This was not a balanced decision of ‘a person’s life is at risk, if I do x I create a certain risk; if I do y I create a certain risk.  On balance x is better than y but even so the risk occurs and harm is done’.    That’s a good faith decision that may cause harm.  That was not the case here.

The mere presence of negligence does not mean an act was not done in good faith (Board of Fire Commissioners v. Rowland (1960) SR (NSW) 322) but good faith requires more than ‘honest ineptitude’ it requires a ‘genuine attempt to perform the function correctly, that is to say that the function should not be performed without caring whether or not it be properly performed’ (Mid Density Developments Pty Limited v Rockdale Municipal Council [1993] FCA 408).  Remember again that this u-turn, on the findings of the judge, was not done in an emergency yet was relying on the exemptions only granted in an emergency.  The matter was not canvassed in court so we can’t know all the arguments that may have been presented but, given the findings of the trial judge, it would have been possible that the judge would have found an absence of ‘good faith’.

So what’s the value of s 128?

In reality it’s a feel good provision. It’s there to provide some reassurance but those sections are rarely relied on and when they are they are the last step in the process.  In nearly every case where they have been relied upon courts have found that there is no liability anyway.  Compare the trial judge’s decision in Electro Optic Systems Pty Ltd v The State of New South Wales; West & West v The State of New South Wales [2012] ACTSC 184 with the Court of Appeal in Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales [2014] ACTCA 45 (see ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires (November 3, 2014)).  The trial judge found that there had been negligence by the RFS and this caused the ultimate damage and he would have found the state of NSW liable but for s 128.   The Court of Appeal in a damning ruling explained why the trial judge was wrong to have found negligence and so they would have found that there was no liability even without s 128.    The decision of the Court of Appeal was consistent with the way other cases have dealt with these matters.

I have analyzed these types of provisions in some detail in my book (Emergency Law (Federation Press, 4th ed, 2013) and pointed out that most of them don’t actually do anything. There just there to make you feel better.

Conclusion

Whilst some of these conclusions could still be arguable, in the right case, it can be inferred that no-one thought this was the right case. What we can conclude is that the law appears to be:

  1. A clause such as the Rural Fires Act 1989 (NSW) s 128(1) provides protection from civil liability, not criminal liability.
  2. It does not apply to the use of an emergency vehicle on the road. It only applies where the power in question is a particular power vested in the officer or service to take action that without that express power, would be an illegal interference with persons or property.  Examples of relevant powers can be found in the Rural Fires Act 1989 (NSW) ss 22A and 23.
  3. The fact that indemnity doesn’t apply on the road ensures those injured in a motor vehicle accident receive compensation under the motor accidents compulsory third party insurance scheme; compensation for which the sober driver of a registered and insured vehicle is not personally liable for in any event.  To apply s 128 in those cases would deny the injured compensation but make no difference to the driver at fault.

 


Categories: Researchers

Seat belts for those in need of rescue

13 October, 2016 - 18:52

This question comes from a NSW SES Volunteer who has found that:

… three times over the past five years I’ve been in the position that I’ve needed, while operational, to put casualties in my vehicle exceeding the number of passengers and in two of those time I have put kids under the age of 7 in the car without car seats. These times were all during emergencies and all done with the team doing a risk assessment concluding that this was the safest way to get them out. I’m aware the seatbelt law states “excluding emergency service vehicles” but I thought I’d ask for your assistance in confirming what the actual laws are.

So I have 2 questions,

  1. Can I have people in the car without seat belts?
  2. Can I have children under 7 in the car without a car seat?

Clearly I’m meaning in an SES vehicle and during and operation.

Have a look at this video and consider whether you think anyone would prosecute the bulldozer driver for removing these children to safety?  Is it better to leave someone to drown or risk being isolated than to put too many people in a car and to take them a short distance to safety?

The obligation to wear seat belts is set out in the Road Rules 2014 (NSW).   There is an exemption for people travelling in an emergency vehicle (rule 267(5)).  That rule says:

A person is exempt from wearing a seatbelt if:

(a) the person is a passenger in or on a[n] … emergency vehicle, and

… if the vehicle has 2 or more rows of seats-the person is not in the front row of seats or there is not a seating position available for the person in another row of seats…

That means the vehicle has to be an emergency vehicle and the person is not in the front row unless there is nowhere else for them to sit.

Remember that an emergency vehicle is a vehicle being operated by an emergency worker (which includes an SES member) providing transport in the course of an emergency (Road Rules 2014 (NSW) definition of ‘emergency vehicle’).  The critical question will be, should the matter be tested, ‘was this an emergency’?  What is an emergency, for the purposes of the road rules, is not defined, but one can infer that the relevant test will be ‘was it necessary to take that action to preserve life or prevent injury?’  if the answer is ‘yes’ then it was an emergency.  Answering that question, in turn requires consideration of a number of points.

Was it necessary?  Or was there some other alternative available?  Could other cars have been called in so as to not overload any single car? Could age appropriate child restraints be obtained?  Were there other rescue options such as boat or helicopter?  Answers to those questions have to consider what resources were available, how long they would take to get there, what were the risks of waiting?   Clearly all those things could be done but if it would take two days for someone to obtain child restraints, or consume the entire operational budget to charter another helicopter then it is permissible to rule those things out.  It is not just a question are of those options theoretically open, but are they practically open.   If there is no practical alternative and there is a risk to the persons’ safety, including emotional safety of children who might be separated from their parents, then yes it is permissible to put them in an emergency vehicle and transport them.

Having made the decision to do so however, the next question is transport them to where?  The answer has to be to the nearest place of safety.  Driving further than is necessary to remove them from the danger moves from a response that is required by the ‘emergency’ to one that is merely convenient.  So the answer may be to drive the people to higher ground and there make arrangements for other cars and cars with appropriate child restraints to come and move the people on.

The essential question to always asks is ‘are we motivated by the best interests of the people in need of assistance?’   If the answer is ‘yes’ the action is probably OK. If the answer is ‘no’ so for example you don’t want to do something because you are afraid you’ll get into trouble, or you do want to act (in this case transport the people without appropriate restraint) because it’s getting late and you want to get home and it will be more convenient for you then you are not providing an ‘emergency response’ and the action will not be justified.


Categories: Researchers

Consent, first aid and minors in Queensland

13 October, 2016 - 18:49

I’m asked this question by a first aid instructor from Queensland.

As part of first aid training we talk about consent and the need for patients to provide consent (where possible) before first aid is delivered. I understand that consent in not required when the patient is unable to provide this, such as unconsciousness.

My question is regarding consent for ‘minors’. I have recently had some debate in class as to whether the term minor relates to someone under the age of 18 or 16.

So is parental/guardian consent required before first aid is rendered to a minor (where possible), and if so, what is the age where parental/guardian consent is required.

I have addressed this earlier with respect to Northern Territory law (see The Need for Parental Consent in Emergency Situations (NT) (July 16, 2016)).  In that post I discussed the decision in Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112.  I also discussed the Minors (Property and Contracts) Act 1970 (NSW) s 49.  I concluded that ‘There does not appear to be any equivalent legislation in the Northern Territory so the common law of Gillick will apply’.  It is also the case that there is no specific legislation in Queensland so in that state too, the relevant test is that of competence.  A child can give effective consent to medical treatment if they are sufficiently mature to understand the information that they are being given and to act on that information.

Legal Aid Queensland says “A child or young person under 18 may make decisions about their own medical treatment if they’re capable of understanding its significance” (see Legal Aid Queensland Medical Consent (2015)).

Queensland Health (Queensland Health, Guide to Informed Decision-making in Healthcare (2011)) says, at [3.1.1]:

In Queensland there is no fixed lower limit below 18 years of age at which children or young persons are deemed to be able to consent to healthcare, and so, as they mature, the child’s capacity to consent generally increases. On the other hand, the authority of parents to consent on behalf of a child or young person is not absolute. Their parental responsibility decreases as the young person matures until it ceases to exist when the child reaches 18 years of age. As a result of this there may be times when both someone with parental responsibility and the child or young person simultaneously have the ability to provide consent to healthcare.

(see also Health Law Central Consent – Minors (Children and Young People) – Decision Making by ‘Mature Minors’ (Older children) ‘Gillick Competence’ (Undated) and Sara Bird Consent to medical treatment: the mature minor (RACGP, 2011)).

Discussion

A minor is a person under the age of 18, but just because a person is a minor it does not mean that they cannot given an effective consent.  Parental consent is not required where a child’s life is in danger because even though a child may be ‘gillick competent’ and able to give consent, they may not be able to refuse consent and even if they can, in a life threatening emergency there would be serious doubts about their capacity to take on the information that is being given and the consequences.

For other treatment such as assisting with a wound or illness a mature minor could give consent.  If they cannot give consent and there is no parent present, the doctrine of necessity would justify treatment that is reasonably necessary and in the child’s best interests.    If they cannot give consent and there is someone present who has parental authority then there consent should be obtained and my be implied by their cooperation with the first aid team.

 


Categories: Researchers

RFS response to volunteer’s conviction for fatal traffic accident

13 October, 2016 - 18:47

A firefighter has sent me a copy of a NSW RFS Operational Brief relating to the fatal traffic accident involving an RFS appliance that has been the subject of earlier posts on this blog; see:

The RFS brief is below.

The important point is the statement:

During proceedings, a number of technical points of law have been raised which has lead to some uncertainly about emergency vehicles using U-Turn and cross over facilities

The operational brief from the RFS goes on to say:

Service members are directed that cross-over points or emergency U-turn bays on motorways or highways are not to be used.  This applies to incident responses and normal traffic conditions, and even where a cross-over point is marked for use by emergency services.

NSW RFS vehicles should travel to the next exit ramp or point on the motorway and re-enter the roadway

I recognise that I only have access to the judgement and some matters may have been raised that were not dealt with there, but I actually doubt that.  And the case did not really raise ‘technical points of law’.  It was a case that depended very much on its own facts.  The law is, and was, that to enjoy an exemption:

  1. The emergency worker had to be responding to an emergency and
  2. Had to take ‘reasonable care’.

The judge applied that law in ways that, with respect, were not controversial.

As I’ve noted before this case was tragic for everyone involved.  But from a legal point of view it raised few legal issues.  The determination of whether or not the driver’s conduct was reasonable in all the circumstances is what lawyers call a ‘question of fact’ not of law. The finding that in this case, given that he was returning to collect crew rather than to respond to an emergency and given that he didn’t wait for the passing car does not set a precedent.  The judge’s ruling on the nature of what is an emergency for the purposes of the Road Rules is also not a binding precedent as it was not essential to determine the case.  The issue was always ‘did the driver take reasonable care?’

It follows that I disagree with the proposition that this case raised technical points of law that require clarification.

What is an emergency?

As for emergency vehicles, the law in NSW has always been that an RFS vehicle is only an ‘emergency vehicle’ when being used in response to an emergency (Road Rules 2014 (NSW) definition of ‘emergency vehicle’).

The judge did consider what was meant by an ‘emergency’ and reached the conclusion that this was not an emergency.  That may be described as a ‘technical’ point of law but it did not determine the case.  The exemption under the Road Rules only applies if the driver has taken ‘reasonable care’.  The judge found that the driver did not take reasonable care so whether there was an emergency, or not, the exemption would not apply.  Further, the exemption provided under the Road Rules is only an exemption from the Road Rules.  There has never been an exemption from more serious offences such as negligent or dangerous driving causing death.  So whether or not the driver would have or should have enjoyed the benefit of rule 306 of the Road Rules 2014 (NSW) it was never going to determine the outcome of this matter.  For more details on the exemption, see Australian Road Rules and emergency vehicles (July 27, 2012).

With respect to what is an emergency, in this case the judge looked at the definition set out in the State Emergency and Rescue Management Act 1989 (NSW).  That definition says (emphasis added) that an emergency is:

…  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 co-ordinated response.

It has been my view that this can’t be the relevant definition for the Road Rules because, on that basis, an ambulance responding to a heart attack victim is not responding to an emergency as they there is not a ‘significant and co-ordinated response’.  That is of course arguable, even one intensive care ambulance is providing a ‘significant’ response – the crew are well trained and there is much behind them to allow them to provide the response, and they are coordinated by the service that is managing competing demands, but even so it does seem a bit of a stretch to fit a single ambulance response into that definition but still we expect them to respond with lights and sirens.

Murray v McMurchy [1949] 2 DLR 442 was a Canadian case, dealing with a surgeon who was performing a caesarean section. During the procedure he observed that the patient had a tumour and further pregnancies would be life threating.  He therefore permanently sterilised her.  He informed her of what he had found, and done, when she came out from the anaesthetic. She was not pleased and sued for assault.  The doctor argued that the procedure was warranted as an emergency.  The court said (at [5]): “There are times under circumstances of emergency when both doctors and dentists must exercise their professional skill and ability without the consent which is required in the ordinary case” but for that doctrine to apply the action taken must be ‘necessary, as opposed to being convenient, for the protection of the life …’ (see [3]).  Whilst not directly applicable to driving, the judge in the RFS case found that when making the u-turn the driver was acting for ‘convenience’ ie to shorten the trip to return to collect the crew, and not out of any necessity to take action to save a life or otherwise respond to an emergency that was occurring on the other side of the road.

Discussion

With respect to the edict that:

Service members are directed that cross-over points or emergency U-turn bays on motorways or highways are not to be used.  This applies to … normal traffic conditions, and even where a cross-over point is marked for use by emergency services.

NSW RFS vehicles should travel to the next exit ramp or point on the motorway and re-enter the roadway

This is not new.   If, as noted above, the exemption under the road rules only applies when responding to an emergency, it was and is the law that the use of emergency turning areas could not be justified in ‘normal traffic’ conditions.    (See, also The NSW RFS, a U-Turn and the Pacific Highway (May 18, 2015)).

This case does not, however, suggest that such an edict is relevant during an emergency response.  One can imagine a motor vehicle accident occurs just near a u-turn bay and it would not be reasonable to ask the first responding emergency service to not make that u-turn.

The court in this case said nothing to the effect that u-turn bays should not be used.    If there was an emergency, such that response was necessary to protect life or perhaps to stop the spread of fire then it would be justified but even so, the driver must take reasonable care.  The obvious requirement is to make sure that other drivers are in fact giving way before proceeding.  If there is any lesson it is “If you are going to use a u-turn bay, make sure it is an emergency and make sure other drivers have in fact given way”.   Drivers of emergency vehicles do, and should, stop at red lights before responding to ensure that other traffic has stopped.  A similar approach in this case would have avoided this tragedy.

What follows is that if there is a belief that this case raised new or technical points of law, then it is the law itself that is not understood, not that this case raised new or controversial issues of law.  Even so the RFS is seeking urgent legal advice.  At the risk of putting myself out of contention as the person who might give that advice, I’ll offer my thoughts for free.  They are:

  1. A service such as the RFS should have a clear policy of when ‘response’ driving is permitted. It should be when a faster response is likely to significantly improve the outcome and is it necessary to save life, property or the environment.  That will require consideration of the nature of the call, time of day, traffic environment etc.  It may be appropriate for a first responder to a triple zero call to respond under lights and sirens, but once the service is ‘on scene’ the incident controller needs to consider whether an ‘urgent’ response will make a significant difference to the outcome.
  2. The faster response must be necessary, not merely convenient.
  3. When the criteria to justify response driving is not met, drivers must drive in accordance with the Australian Road Rules as adopted in your state/territory.
  4. The fundamental obligation on all drivers is not to crash. Crashing an emergency service vehicle creates another emergency, delays the response to the first event and causes more trauma. People may die in floods, fires and other events but more people die in car accidents.  Drivers should be reminded that no matter what they are responding to, the most important objective is not to crash.

 


Categories: Researchers

Can trainer/assessors be liable for poor performance by former students?

13 October, 2016 - 18:44

This is the first of three questions that came in during my recent break to Central Australia – and the break was great, thanks for asking.  But not it’s back to business.

A volunteer trainer/assessor from WA asks:

Are volunteer trainer/assessors (i.e. those teaching a specific endorsed course through a department academy or approved school) open to litigation or accountability should one of the students assessed as competent go on to be injured or cause damage at some future time? At least any more or less than career staff in the same position or volunteers providing other training on station?

I would expect that the answer should be no, the student was assessed at the time as competent, but that does not have any effect on how they conduct themselves in future. Also, the training provides department endorsed procedures at the time, if procedures change in the future, then it is up to the department to ensure that they either advise or provide gap training to all past students.

I have volunteer brigades refusing to allow very competent, experienced, qualified trainer assessors to provide training or assessment because “they could be sued down the track”.

In answering this question, I assume the trainer/assessor has taught the current syllabus and the assessment has been properly conducted and the student genuinely assessed as competent.  In those circumstances the answer is ‘no, there can be no liability attaching to the instructor if a student goes “on to be injured or cause damage at some future time”.  Start with a practical test – if that was the rule then every time there was a car accident, the driver at fault could look to sue their instructor!   Every time there was a plane crash everyone involved could sue the pilot’s trainers and assessors

Let us look at some more basic principle. The issue is one of ‘duty of care’.  A duty of care is not owed to every foreseeable person who may be harmed.    An instructor owes a duty of care to his or her students and no doubt the organisation in whose name they conduct the training but that cannot extend to everyone.  It is impossible to know the circumstances in which a person will come to use the skills that are being taught and assessed, it is impossible to know what experience the student will gain between the training and the application of those skills, it is impossible to know who will benefit from those skills.   A person cannot owe a duty of care to the world at large so the idea that a trainer/assessor owes a duty of care to some person who cannot be identified and who might, at a time and in circumstances that cannot be identified, need to rely on the training that the trainer/assessor provided is too broad a class of persons.   If the trainer/assessor could be sued their liability would be unbounded – it would be owed to everyone forever in circumstances where they can do nothing to ensure their students remain competent. That a duty would be owed to the world at large or to an undefined and unclosed class of persons is a reasons to hold that there is no relevant legal duty (see Graham Barclay Oysters v Ryan (2002) 211 CLR 540).

Second the trainer/assessor’s obligation is to act reasonably in the circumstances. If they properly deliver the training and properly assess the student as competent that means no more than they were competent at that moment in time.   The hope is that they can take those skills and use them but no-one is perfect and we all forget things we are taught, develop bad habits, get influenced by others who may do things differently etc.  There can be no implication on a trainer/assessor if the student for whatever reason doesn’t apply the training they have been provided.  I’m sure none of us drive the way we did when we had an instructor or examiner in the car with us!  A trainer may well teach what we’re meant to know and do, and an assessor may well conclude that we’re able to do what we’re meant to do, but neither can guarantee that we’ll actually do it all the time in all circumstances.

The question was “Are volunteer trainer/assessors (i.e. those teaching a specific endorsed course through a department academy or approved school) open to litigation or accountability should one of the students assessed as competent go on to be injured or cause damage at some future time?”

Again assuming that they have delivered the training and conducted the assessment (not just signed off because they are mates, or the unit needed people with those qualifications, or decided that the training was rubbish and they’d deliver their own syllabus) then the answer to that question is “NO”.

 

 


Categories: Researchers

Hold that thought – Australian Emergency Law is taking a break

11 September, 2016 - 18:32

I’m going to be on leave until Mid-October.  During that time, I intend to be away from my phone and computer as much as possible!  So I won’t be responding to questions or approving comments.  Save your questions and thoughts and we can resume the conversation in October.  In the meantime, I hope not to meet you whilst I’m on the road!


Categories: Researchers