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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: 1 hour 26 min ago

Authority to expedite between hospitals

23 July, 2016 - 13:49

This question comes from a NSW paramedic who is concerned about:

A treating doctor requesting lights and sirens transfer of a patient from one hospital to another for definitive care. The reason for the urgency is (ideally) based on the patient’s condition. Many of our hospital colleagues are not aware of the skills and procedures we have at our disposal and this can sometimes influence their request for urgent transport. And sometimes, it’s just because.  In the event of the reasons being other than patient based, I would like to ensure that the paramedic has the legal authority (indeed, the responsibility!) to make the decision to drive under normal conditions.

Our circulars just refer us to the Australian Road Rules and Traffic Act 1909.  I am led to believe that the paramedic cannot be instructed to expedite by an external party when it’s not essentially required, but I can’t find it. On the assumption that “it” actually exists of course!

It’s a worry if the circulars that are given to my correspondent refer to the Traffic Act 1909 (NSW).  This Act was repealed on 30 November 1999!

This question does raise issues that I have addressed, in different contexts, in:

We’re never going to find a rule that says ‘a paramedic cannot be instructed to expedite by an external party’.  No-one can instruct anyone to do anything unless the person giving the instruction has some lawful authority.  For a third party to be able to instruct a paramedic you would need a rule saying that the third party had authority, not a rule saying that they do not.  So ‘it’ –  a rule ‘that the paramedic cannot be instructed to expedite by an external party when it’s not essentially required’ will not exist.

So let us look at the rules.  We know that rule 306 of the Australian Road Rules (incorporated into NSW law by the Road Rules 2014 (NSW)) provides an exemption from the other road rules where it is ‘reasonable’.  We also know that the rules don’t specifically say who gets to decide whether or not it is reasonable in the particular circumstances.  That is because it is ultimately, up to a court.  If the rule said that it was the driver, or the services opinion that counted, then that decision could not be challenged. By saying that rule 306 applies in circumstances where ‘the driver is taking reasonable care’ and ‘it is reasonable that the rule should not apply’ the final arbiter in any given case is the court (see Road traffic exemption – Who determines if it is reasonable that the provision should not apply? (May 22, 2016)).

To revisit the question – what is really being asked is ‘is it reasonable that the other road rules should not apply – or that rule 306 should apply – because a doctor has indicated that the need for patient transfer is urgent?’  The answer has to be ‘no; that on its own is not sufficient’.

First the doctor may be expert in assessing the patient’s condition and the need for transfer to definitive care but he or she is not an expert on driving and in particular on the road conditions that are applying at the very time that the transfer is occurring.  So, for example, the doctor might say I want a ‘lights and siren’ response but that will be irrelevant if the driver finds themselves stuck in traffic due to a protest.  The doctor can’t say ‘just run those people over because I want this transfer to be urgent’ – the doctor can want what he or she wants but that doesn’t mean it can be provided.  Whether it’s a risk to pedestrians or other drivers, the driver of the ambulance has to balance all those factors to determine what ‘urgent’ means.

We are reminded that an ambulance is not a taxi – and paramedics need to believe that.

If it is believed that a doctor can direct the paramedic how to drive, or when to use lights and sirens, that’s behaving more like a taxi service, not a professional health care service; see Transport everyone or act as a professional? A question for paramedics (May 6, 2013) (and even with a taxi, the passenger can’t tell the driver how to drive).

In Transporting a Queensland prisoner by ambulance – and stopping at an accident (July 1, 2016) I said:

As for the prison guard’s instructions, the prison service doesn’t own the ambulance and the ambulance crew aren’t subject to the prison guard’s direction and control. It is not for the prison guard to tell the driver of an ambulance what he or she is ‘permitted’ to do.  Imagine, if you will, you are transporting a person to hospital ‘for medical review and treatment’ and you are involved in or observe an accident where someone is injured.  Would you allow the patient’s family to tell you ‘you are not permitted to stop’ because they think their family member’s needs, or worse, their own needs are more important?  The answer is ‘no’ and the prison guards are in the same position.   It’s not like a taxi service where having hired the taxi I can say whether or not the taxi driver can take on a multiple hire (Transport Operations (Passenger Transport) Regulation 2005 (Qld) s 66) so I can’t tell a paramedic not to treat an injured person because I, or my loved one, or my prisoner, got into the ambulance first.  And if I hire a taxi, I can’t tell the driver to keep going after he or she has been involved in an accident because me getting to where I want to go is more important than the needs of the injured.  The guards are there to secure the prisoner not tell the paramedics how to treat them or how to drive.  If the prison service wants to give those sort of directions it should buy its own ambulance and employ its own paramedics, but even then the prison service couldn’t give instructions to ignore the provisions of the Transport Operations (Road Use Management) Act.

A similar statement can be made here.  As for the doctor’s instructions, the doctor or health service doesn’t own the ambulance and the ambulance crew aren’t subject to the doctor’s direction and control. It is not for the doctor to tell the driver of an ambulance what he or she is ‘permitted’ or required to do. If the health service wants to give those sort of directions it should buy its own ambulance and employ its own paramedics.

As I said in Road traffic exemption – Who determines if it is reasonable that the provision should not apply? (May 22, 2016):

Where does the caller, whether it’s a citizen who calls triple zero or a doctor fit into that list?  The answer is ‘they don’t; they don’t get to decide what response is required’.    This goes back to my first decision maker, the relevant service. They should have a policy and it may be that they have a policy that a doctor can request an ambulance and if the doctor says the request is ‘urgent’ then the ambulance service will direct its officer to ‘respond’ with lights and sirens. But it’s the service, not the doctor that is making that decision.    If a doctor is travelling with the patient and paramedics and expresses the view that the urgent nature of the patient’s condition requires an expedited response, he or she can ask for that to happen, but the doctor cannot direct the driver as to how to drive or to ‘turn on the lights and sirens’.

And if the reason for the request is ‘other than patient based’ then it can’t be the case that it is reasonable for r 306 to apply.

Conclusion

A doctor can request an urgent response but cannot require it.  One can’t find a rule that says that – but if the law was that a doctor can require an urgent response there would have to be a rule to gives that authority to the doctor; and there isn’t one.  Rule 306 does not say it applies ‘when a doctor says it does’; it says it applies when it is reasonable in the circumstances.  The doctor’s request is only one of those circumstances as is the patient’s need, the care that the paramedics can provide en route, the traffic conditions and the need to take care to avoid harming other road users and the patient.


Categories: Researchers

US Forest Service Sues CA Property Owner for $25 Million for Wildland Fire

19 July, 2016 - 11:46

This comes from the Fire Law Blog maintained by US lawyer and firefighter Curt Varone (there is a link to his blog at the bottom if this blog’s home page).   The response of the US Forest Service may be of interest to Australian Authorities.

The US Forest Service has filed suit against a California property owner seeking almost $25 million in compensation for the Mountain Fire in 2013. The suit alleges that negligence in maintaining an electrical box on the property caused the fire that burned 27,531 acres, including 15,535 acres of US Forest Service lands in the San Bernardino National Forest.

The suit was filed last Thursday by the US Attorney Eileen M. Decker in US District Court for the Central District of California. Named as defendants are the property owner, Tarek M. Al-Shawaf, and two of his employees, James D. Nowlin and Donna L. Nowlin. The complaint alleges that the Nowlins were caretakers of the property.

The Mountain Fire destroyed 23 structures, and required 260 engines, 20 helicopters, 12 fix wing aircraft, and 3500 firefighters before being brought under control. According to the complaint:

  • Investigators determined that the Mountain Fire ignited in a plastic electrical junction box on the Gibraltar West property.
  • The junction box housed electrical wires running from the electrical panel of the main house on the property to a water well on the property.
  • The junction box’s lid was warped, not properly secured, and ajar.
  • As a result, an electrical discharge inside the box shot sparks and hot material out of the box and onto dry ground vegetation below.
  • At all times relevant to the complaint, the electrical junction box and the electrical wires from the property’s main house to the well were owned, maintained, and controlled by defendants…
  • The ignition of the Mountain Fire was an incident of a kind that ordinarily does not occur in the absence of negligence.
  • It was caused by activity within the exclusive control of the defendants.

The suit contains five counts:

  1. Negligence
  2. Liability under California Public Resources Code § 4435,
  3. Liability under California Health & Safety Code §§ 13001 & 13007–13009.1; California Civil Code § 3287)
  4. Trespass by fire
  5. Interest and penalties under California Health and Safety Code §§ 13009 & 13009.1 and 31 U.S.C. § 3717

The US claims it expended roughly $15 million in direct costs, $9 million in property damages, and $300,000 in “emergency rehabilitation” costs.

Here is a copy of the complaint: US v Tarek M. Al-Shawaf

The suit is similar to one filed a year ago by the state of California on behalf of CalFire seeking to recoup roughly the same amount in damages. Here is more on that suit.

In a media release US Attorney Decker wrote:

  • Property owners and their agents have a responsibility to ensure that property under their control is maintained in a safe fashion.
  • In addition to endangering countless lives, including those of firefighters who battle these large-scale blazes, the failure to properly manage the property and the electrical equipment on the property in this case cost taxpayers approximately $24 million dollars

New Zealand also has the opportunity to seek to recover fire fighting costs from those responsible for wildfire – see New Zealand fire authorities seek to recover cost of fire fighting (October 1, 2015); and for a discussion on the Australian position, see Charging for fire response (February 18, 2013).


Categories: Researchers

Discovering crime during an emergency response

19 July, 2016 - 11:33

This question arises from:

“… a recent [NSW] RFS leadership course [where] the problem of what I will call ˜inadvertent discovery” was raised. The scenario is that the RFS responds to a situation legally and whilst there discovers evidence of illegal activity.

Can they report that activity to authorities?”

Can they? In the right circumstances, they must!  I’ll come back to that, but first a trans-pacific digression.

This is a much bigger issue in the United States where the 4th Amendment to the US Constitution (part of the US Bill of Rights) says ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…’  There are exceptions to the rule requiring a law enforcement officer to first obtain a warrant prior to commencing a search (see J. Curtis Varone, Legal Considerations for Fire and Emergency Services (2007, Thomson) pp 150-158).  One of the exceptions is the ‘exigent circumstances’ rule – that is a warrant is not required in circumstances where requiring police to obtain a warrant ‘would have real, immediate, and serious consequences’ (Varone, p 153).

The US Supreme Court considered the issue in the context of firefighters in Michigan v Tyler 436 US 499 (1978).  The facts relevant to our discussion were that the local fire department responded to a shop fire at about 2am.  As they were extinguishing the fire, the fire fighters discovered plastic containers of flammable liquid and this was reported to the fire chief who entered the building to examine the containers. The fire chief, in turn, notified police.  A detective took several pictures but ceased further investigation because of the smoke and steam. By 4 a.m., the fire had been extinguished, and the firefighters departed.  There were other facts, important for the decision, about the subsequent actions by police but they need not concern us.

The first finding by the Court was that it didn’t matter if the search was conducted by a fire fighter or a police officer.  Stewart J (on behalf of the Court) said that the:

“basic purpose of this Amendment . . . is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.”

The officials may be health, fire, or building inspectors. Their purpose may be to locate and abate a suspected public nuisance, or simply to perform a routine periodic inspection… [Even so these searches] are thus clearly within the protection of the Fourth Amendment.

The shop owner was entitled to the protection of the 4th amendment however

… warrantless entry … may be legal when there is compelling need for official action and no time to secure a warrant

A burning building clearly presents an exigency of sufficient proportions to render a warrantless entry “reasonable.” Indeed, it would defy reason to suppose that firemen must secure a warrant or consent before entering a burning structure to put out the blaze. And once in a building for this purpose, firefighters may seize evidence of arson that is in plain view. Coolidge v. New Hampshire, 403 U. S. 443, 403 U. S. 465-466. Thus, the Fourth and Fourteenth Amendments were not violated by the entry of the firemen to extinguish the fire at Tyler’s Auction, nor by Chief See’s removal of the two plastic containers of flammable liquid found on the floor of one of the showrooms.

So what – Australia does not have a Bill of Rights and the 4th amendment does not apply here.  True enough, but there is still common law rights that protect private property.  Justice Kirby said that even though ‘Australia has not adopted a constitutional rule similar to the Fourth Amendment to the United States Constitution’ the rules governing the need for search warrants is reflected both in Australian statute law and judicial interpretation of those laws (New South Wales v Corbett [2007] HCA 32, [21]).  In an earlier post (Authority to enter private property for a hazard reduction burn (July 9, 2016)) I quoted Lord Denning (an English judge) who in Southam v Smout [1964] 1 QB 308 at 320 said:

“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.” So be it—unless he has justification by law.

As a general rule police and ‘all the forces of the Crown’ (which would include the RFS) cannot enter private property without a warrant or some other lawful excuse (see Authority to enter private property for a hazard reduction burn (July 9, 2016)). Today most, if not all, fire brigades have legislation to allow them to enter premises to:

  • Fight a fire – see for example, Rural Fires Act 1997 (NSW) s 23 ‘An officer of a rural fire brigade or group of rural fire brigades may enter any premises for the purpose of exercising any function conferred or imposed on the officer by or under this Act’; and
  • Investigate the cause of a fire – Rural Fires Act 1997 (NSW) s 33B ‘The Commissioner may enter and inspect any land for the purposes of investigating the cause or origin of any fire that has occurred on that land or any adjacent land, but only for a period of up to 24 hours after the fire has been put out’.  Note however that this power does not extend to ‘land used only for residential purposes’.  To enter residential land a warrant is required – ss 33B(3) and 33C.

As in the United States there is also a common law power to enter premises, without a warrant  in ‘exigent circumstances’.  In Kuru v State of New South Wales [2008] HCA 26 the High Court said:

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

Once the firefighters are lawfully ‘on scene’ they can’t help observing that which is in plain sight or even hidden if they reveal it in the course of their duties.   Having observed material that reveals criminal conduct they can report it to police.  Whether they should or not is another matter.  One should consider issues such as the seriousness of the offence and the potential impact it will have on the relevant emergency service.  For example if what is detected is that the homeowner has been consuming a prohibited drug, would it serve the public interest if that was reported to police?  People would be less willing to trust the fire service (or the ambulance service and paramedics will be exposed to that sort of conduct more than fire fighters) if they get ‘dobbed in’ for these sort of offences.  On the other hand, fire fighters may observe evidence of arson, child sexual assault, child pornography, murder or attempted murder, sexual servitude, significant drug cultivation or manufacturing or the like.  These are serious offences that should be reported to police.

Further, in New South Wales, the Crimes Act 1900 (NSW) s 316 says:

If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.

A “Serious indictable offence” is an offence with a maximum penalty of 5 or more years’ imprisonment (s 4).

Section 316 is a complex way of saying that if a person (in our context, a fire fighter) has information that would assist police to identify and convict an offender, then that person commits an offence if they do not give that information to police.  It follows that if the RFS responds to a situation legally and whilst there fire fighters discover evidence of a “Serious indictable offence” then there is an actual obligation to report that matter to police.

Conclusion

The simple answer to the question ‘[if] the RFS responds to a situation legally and whilst there discovers evidence of illegal activity[, c]an they report that activity to authorities?’ is YES.

Further if the evidence suggests a “Serious indictable offence” the members may commit an offence if they fail to report it.

For related posts see:


Categories: Researchers

The need for parental consent in Emergency situations (NT)

16 July, 2016 - 12:27

A paramedic from Darwin writes for:

… advice about treating paediatric patients and obtaining consent form their parents/guardians. My particular query is; in an emergency situation where I believe certain treatments are necessary and the parent/guardian withholds consent, where do I stand? And would your advice be the same if it wasn’t possible to obtain parental consent, i.e: if parents/guardian could not be contacted?

‘Pediatrics [sic] is the branch of medicine dealing with the health and medical care of infants, children, and adolescents from birth up to the age of 18’ (http://www.news-medical.net/health/What-is-Pediatrics.aspx) and that’s almost an appropriate definition in this context.  As we’ve noted in earlier posts, parents or other legal guardians are responsible for making treatment decisions for babies and young children, but as children grow in maturity they become capable of making their own decisions – they become ‘Gillick competent’ (named after the decision in Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112. At some point they are responsible for making their own health decisions.  In NSW, for example, parental consent is required for treatment of a child under 14, between 14 or 16 either the parent or the child (if Gillick Competent) can consent and over 16 the child’s consent is required (see ‘Paramedics treating children’ (May 5, 2016)).    There does not appear to be any equivalent legislation in the Northern Territory so the common law of Gillick will apply.   As Lord Scarman said:

Lord Scarman said:

…  the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.

So the first point is that if the child is sufficiently mature to give consent, and certainly if they are over 16 and appear to understand what is being proposed, then their consent is sufficient.

Let us, however, assume that we are really talking about infant children who cannot consent or even older children who because of their injuries are unable to consent.  I’ll now reverse the question and deal with the situation where it is not ‘possible to obtain parental consent, i.e: if parents/guardian could not be contacted’ or perhaps they too have been injured in the same accident.

This is an example where the common law of necessity applies.  Lord Goff in In Re F [1990] 2 AC 1 said:

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

Where the child is not capable of giving consent, and there is no parent or any person standing in loco parentis (in the place of the parent) then a paramedic can treat the child in the same way he or she could treat an adult who cannot consent.  If it’s necessary to administer treatment and the motivation is to act in the best interests of the patient, then the treatment is lawful.  If a paramedic is treating a child in accordance with the normal clinical practice guidelines or protocols, then there could be little question that these conditions are met.

But necessity does not override prior objections.   After the statement quoted above, Lord Goff continued:

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

Where a parent or other lawful guardian refuses consent, ‘necessity’ would not justify treatment.  But a refusal of consent has to be (In Re T [1992] EWCA Civ 18):

  • Informed;
  • Made by a person who is competent to make the decision; and
  • Cover the situation that has in fact arisen.

Assume a child is suffering from a condition that has not been previously diagnosed, eg anaphylaxis or epilepsy or they have fallen and hit their head and are showing decreased level of consciousness.  The parents may be distressed and anxious and unable to take on board the information they are being given. They want to take their child to the family doctor, or just home to rest, and paramedics are urging the parents to let them (the paramedics) examine and treat the child and rush them to hospital.  That may be a situation where the decision maker is not and cannot be properly informed about the situation.

What if the parent does understand the situation but doesn’t want paramedic or medical assistance because they want to leave it to God or some other force?  A parent’s decision making is limited in that they have to make decisions in the best interests of their child (Secretary of the Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (‘Marion’s case’)).   What is in the child’s best interests is of course debatable a matter of faith – faith in God, faith in doctors etc.   It is usually assumed that parents are best placed to decide what is in a child’s best interest.   I shall return to this issue, below.

Finally assume the child is suffering from a pre-existing terminal condition and the parents and the medical team have made treatment decisions including, for example, that the child is ‘not for resuscitation’ and this has been appropriately documented.  Necessity could not justify treating a person according to paramedic procedures – and certainly not if the paramedic thought he or she had to in order to protect their own position.

So there’s a scale here – from an irrational, fear driven refusal of consent, to a set of competing values, to an informed, rational and documented prior refusal of treatment.   We know that at the end of an informed, rational and documented prior refusal of treatment, that refusal should be honoured.  But what of the other scenarios?  This is what I wrote in my book Emergency Law (2013, 4th ed, Federation Press) pp 58-59:

As a general rule parents have the right to give consent to the treatment of their children. children. With the right to give consent comes the right to withhold or refuse consent (Re: Baby D (No. 2) [2011] FamCA 176).   Where a parent consents to the treatment of their child there is no problem. Where a parent refuses to let a rescuer, particularly a trained rescuer, treat their child then the situation is more complex. If the child has suffered a minor injury it would be reasonable to respect the parent’s wishes. The volunteer first aid officer should not put a band-aid on the child’s cut hand if the child’s parent does not want them to.

The legal and moral difficulty will arise when the child requires treatment in order to save their life or prevent long term harm and the parents object. Although parents may give consent for medical treatment to be administered to their children, they may only give consent if that consent is in the best interests of the child (Marion’s case (1992) 175 CLR 218, [1992] HCA 15).  It would follow that if a parent is to refuse consent for treatment that refusal must also be motivated by the best interests of the child (Re: Baby D (No. 2) [2011] FamCA 176).  Accordingly a refusal that was not “in the best interests of the child” is unlikely to be binding.

The need for an understanding of the consequences before a refusal of consent can be considered binding is also relevant. In most cases it will be likely that when a parent says they do not want their child treated by, for example, a volunteer rescuer, they do not understand the nature of the child’s condition. If the child will die without the treatment, for example, if he or she is unconscious and needs to be turned onto their side for airway management, then the statement by the parent “don’t touch my child” will not be binding if the parent is not in a position to understand that the option is not between the first aid by the rescuer on scene and waiting for an ambulance; rather the choice that they are making is between life and death. In these circumstances, and given the urgency of the situation, the apparent refusal would not be “valid” and treating the patient would not be an assault (In re T [1992] 4 All ER 649, [1992] EWCA Civ 18).  (Even if the parent did understand the consequences, it is likely that the treatment is permissible on the basis that the parent can only refuse consent if that is in the best interests of the child, and that is unlikely in this scenario.)

Ultimately, for rescuers other than medical practitioners and perhaps members of professional ambulance services, the question of what to do in the face of a sick or injured child and a refusal by the child’s parents will be legally (and actually) very difficult. The law would appear to say that if the parents are not acting in the best interests of the child then their apparent objections may be ignored. This may, of course, come to a conflict between the parents’ honest belief as to what is in the child’s best interests and the rescuers’ equally honest, but conflicting belief. In these cases, the severity of the injuries will help determine the matter. A decision by a parent that they do not want the rescuer to bandage their child’s sprained ankle can probably be honoured. A decision by a parent that they do not want their child to be resuscitated after being struck by a car can probably be ignored. Between these two extremes lie a number of possibilities that will require the rescuer to consider how strongly they believe that some treatment should be given and what the consequences to the child will be if that treatment is not given.

There will, in these cases, also be extra legal considerations, in particular whether it is in fact possible to administer treatment in the face of parental objections. It will not be possible to treat a child whose parent has physically picked it up and carried it away. On the other hand, it may be possible to treat a child at a car accident where bystanders or police may be able to assist in restraining the distraught parent from intervening. In these cases, it is not the law, but tact, professionalism and a reassuring manner that will allow treatment to proceed.

If the matter were to come to court it is probable that the courts would find that, provided the treatment was necessary to save the child’s life or prevent serious long term harm, then it may be legally given even though the child’s parents objected.

 

 

 

 


Categories: Researchers

Volunteers as traffic controllers

13 July, 2016 - 22:58

I am asked this question from a member of NSW SES.

NSW SES Traffic Control/Management. Does a uniformed member performing traffic management/control as part of a SES community activity, require a qualification outside of the SES by a RTO or RMS? (grey card, Blue card ect). The reason why I ask is… I am from a rural area where the RFS & Fire & Rescue both do this as a community service, whilst training their members on crowd/traffic control. They do this on community events such as Triathlons, Festivals, Street Marching ect & it gives them great exposure. We have members who have had qualifications through their work before but it has now lapsed, so they fear they may no longer be able to perform that duty, or allow/teach others to do it. Is there any light you may be able to shed on this subject please?

I have addressed this before, see:

I referred my correspondent to the first of those posts (Traffic Control by RFS volunteers (April 30, 2013)).  He replied:

 Just so I have this correct, at an accident, which as stated is inherently dangerous, we have the training (unrecognised by RMS), however RMS is happy for us to self-train & manage traffic with our high-vis PPE, cars lights etc to direct traffic however at a static planned road closure on a council road community event etc we need to pay a fee for a ticket to have their authority?

There is some confusion here.  The emergency services have the power to close a road –

  • The Rural Fires Act 1997 (NSW) s 24 says ‘The officer in charge of a rural fire brigade or group of rural fire brigades may cause any street or public place in the vicinity of a fire, incident or other emergency to be closed to traffic’;
  • The Fire Brigades Act 1989 (NSW) s 14 says ‘The officer in charge at a fire may cause any street or public place in the vicinity of a fire to be closed to traffic during the fire’;
  • The Commissioner of the State Emergency Service ‘may, if satisfied that it is necessary or convenient to do so for the purpose of responding to an emergency … direct, or authorise an emergency officer to direct, a person to … (c) not to enter the emergency area or any part of the emergency area (State Emergency Service Act 1989 (NSW) s 22).

That has nothing to do with RMS.  It is simply not an issue that the ‘RMS is happy for us to self-train & manage traffic with our high-vis PPE, cars lights etc to direct traffic…’  The RMS have nothing to do with it.  The fire services and the State Emergency Service have the powers they have.  They have an obligation to manage the risk that their workers (including volunteers) face and to implement whatever training they think is required based on an appropriate risk assessment (Work Health and Safety Act 2011 (NSW) s 19 and Work Health and Safety Regulation 2011 (NSW) r 39).

That doesn’t say that the RFS/FRNSW/SES can ‘direct’ traffic and, arguably, if there is a fire or other emergency the prudent thing may be to actually close the road – ie stop ALL traffic proceeding down the road but that does have costs to communities.  As I’ve said before ANYONE can direct traffic.  If there’s an accident and I stop to warn other drivers of the accident, I’m committing no offence.   I said this as a comment to my earlier post (Assisting NSW police with road closures (January 7, 2014)):

Here’s an example from 1880, Ned Kelly’s holding the populace of Glenrowan when one man escapes and flags down the train carrying police. Did he have any authority to stop the train? No, but it can’t be suggested it was illegal to flag down the train to tell the driver and the police that the tracks had been ripped up and Kelly was hold-up in Glenrowan.

So you’re driving along the freeway and you see a fire and you chose to stop and warn others; no authority is required. Of course the other driver’s commit no offence if they ignore you and travel past…

Let us go back to the question at the start of this post – ‘Does a uniformed member performing traffic management/control as part of a SES community activity…’ that became, in the follow up, ‘however at a static planned road closure on a council road community event etc we need to pay a fee for a ticket…’  They’re different situations.  The Roads Act 1993 (NSW) s 115(1) says ‘A roads authority may regulate traffic on a public road by means of barriers or by means of notices conspicuously displayed on or adjacent to the public road’.  One of the reasons that a road may be closed is to enable ‘a public road to be used for an activity in respect of which a permit is in force’ (s 115(2)(f)).   If there is a ‘planned road closure on a council road community event’ (emphasis added) then ideally there’s a ‘road closed’ sign.  Having a volunteer stand at that sign to confirm that the road is, indeed closed is not ‘traffic control’ and no permit is required.

If they are actually doing traffic control, ie determining when vehicles can pass, directing drivers where they can drive or park, actually operating a stop/go bat to regulate traffic in only one lane, then it really does beg the question of whether the agency should be doing that.  Not because it’s legal, or illegal, but is it safe for the volunteers and the drivers?

The Roads Regulation 2008 (NSW) r 6 says ‘For the purpose of enabling it to exercise its functions … a roads authority may appoint traffic controllers, or authorise its agents and contractors to appoint traffic controllers, to direct traffic on a road.’ RMS requires that traffic controllers appointed by it or it’s agents and contractors have the prescribed qualifications (http://www.rms.nsw.gov.au/documents/business-industry/partners-and-suppliers/traffic-control-training/traffic-control-training-overview.pdf). This is the RMS response to the assessed risk to ensure that at road works safety for everyone is maximised and the RMS meets its Work Health and Safety obligations.    If any roads authority other than the RMS wants to actually have someone direct traffic, they too have to consider how they will meet their Work Health and Safety obligations.  A community organisation that needs help to direct drivers in the parking lot are not closing a road and they are not a ‘roads authority’ but they still need to consider the risk to everyone and consider what is required.  The risk of course might not be much, people parking cars are in theory licensed and competent to drive and simply directing people to the next available spot may not be a significant risk, but it should be considered.

The real issue is not ‘Does a uniformed member performing traffic management/control as part of a SES community activity, require a qualification outside of the SES by a RTO or RMS?’ but ‘does a Roads Authority have to ensure that it engages qualified traffic controllers to perform traffic management/control as part of a community activity?’

When you put it that way, you can see that if the community organiser/roads authority asks the SES/RFS to act as traffic controllers, the SES/RFS can say ‘yes’ or ‘no’ depending on their own risk assessment. The roads authority also has to do a risk assessment and ask itself ‘do these people actually know what they are doing and what is the level or risk’.  You can see that if you are allowing traffic through one lane at a time and the controller at one end can’t see the controller at the other, then the risk is much greater than having someone stand at a road block sign and removing it to allow ‘authorised’ vehicles to enter.

Similar considerations apply at an emergency.  The officer in charge may decide to close the road and a volunteer parks the truck across the road and says ‘you can’t go past, there’s an accident or fire’ – that’s pretty low risk. The volunteers may also direct traffic – put the road block at an intersection and tell people ‘you can’t go down road A, so you’ll have to detour down road B’.   But if you want to set up a system with alternate flows down a single lane consideration would have to be given to asking the council to send out qualified traffic controllers.  Like everything that involves consideration of how long that will take, what are the traffic conditions, is there an alternate route, how long will it take to clear the incident etc

Conclusion

There is no specific regulation that deals with the traffic controller qualifications.  It’s a risk assessment/risk control measure. The RMS may require that contractors have the prescribed qualifications. The RFS/SES/NSWFR have their own power to close roads and it’s up to those services to decide what training is appropriate for their members given the risks they face and to decide what training they need to either close a road, or direct traffic on a road around a hazard.

A roads authority (such as a council) that wants to ‘control’ traffic (rather than close a road) at a public event would also need to consider the risk.  The safest option would be to ensure that anyone directing traffic (as opposed to staffing a road block) does have traffic control qualifications.  If a person directing traffic is not a duly appointed traffic controller, a driver commits no offence if they ignore their directions (Roads Regulation 2008 (NSW) r 6).


Categories: Researchers

Limits to NSW Workers Compensation for a firefighter

12 July, 2016 - 18:03

A former Fire and Rescue NSW retained firefighter has sought advice on a workers compensation matter.  I can’t provide specific advice, nor do I want to mention the specific details of the case, so I’ve rephrased the question to draw out the key issues rather than the specific ones.  My correspondent says:

I was a Retained firefighter for 20 plus years. In 2014 was placed on Workers Compensation and the brigade admitted liability for my Post Traumatic Stress Disorder however, all I am being compensated was for 10 hours per week which was calculated when I was on sick leave and my attendances were way down.  I have never been compensated for the loss of my business or financially compensated for the exact loss of both Primary and Secondary income.  I am held accountable for everything I do week in week out.

My questions are this:

  • Why aren’t I compensated for the full loss of Income?
  • Why am I held accountable 24/7 when I’m only compensated for 10 hours a week?

The answer is that Workers Compensation is a statutory scheme.  The obligations imposed on insurers, and the entitlement to compensation are all set out in legislation; in New South Wales there are two relevant Acts – the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (and for volunteer emergency service workers there is a third – the Workers Compensation (Bush Fire, Emergency And Rescue Services) Act 1987 (NSW)).

Tort law, in particular the law of negligence, would allow a person who has suffered losses due to someone else’s negligence to recover all their losses.   That too is no longer the case given many amendments to the law brought in by the Civil Liability Act 2002 (NSW).  This Act came in after the HIH Insurance collapse and at the time a ‘moral panic’ about the amount of compensation being paid and who was being compensated.    Even if a person can sue in negligence, today there are thresholds that must be met before any compensation is award and caps on the amount of compensation.  For example, compensation for loss of earnings is capped at three times average weekly earnings (AWE) so a person who earns more than three times AWE does not get fully compensated for their losses (s 12).

Workers Compensation has even more significant limits but it has benefits.  In particular workers compensation is ‘no fault’ so every employee who is injured at work receives compensation without regard to how the accident was caused even if the injured person caused their own injuries.  Further workers compensation is ongoing – whereas tort compensation is a ‘one off’ payment and when it’s spent it’s spent, regardless of ongoing need.  On the other hand, as my correspondent has noted, because workers’ compensation is ongoing the insurer has an ongoing interest in assessing and reassessing the claimant to ensure that they are still entitled to the ongoing compensation.

In terms of payments, for lost income workers compensation provides a maximum amount. In 2007 the maximum was $1838.70 per week but that has been indexed with inflation so the maximum today will be higher than that.   The entitlement to compensation ‘steps down’ so a worker receives 95% of their weekly earnings for the first 13 weeks then 80% for the next period until 130 weeks or 2.5 years.  A special case needs to be made for continuing compensation after 130 weeks.

It should be noted that these limits were introduced with amendments in 2012.  Fire fighters and paramedics were exempt from those amendments so the description of the limits, above, apply to workers other than fire fighters, paramedics and police BUT that doesn’t change the fact that there are limits.  For firefighters, paramedics and police compensation for the first 26 weeks is based on the employees average weekly earnings (but again subject to a statutory limit) and then it steps down to 90% of AWE.

As for being ‘accountable’ 24/7 that also reflects the attitude of the community to ensure that people don’t get benefits they are not eligible for.  Tightening up the rules to capture the undeserving necessarily exposes everyone to the procedures and requirements including the need to cooperate with the insurer and attend medicals and worse, be subject to scrutiny.

So, the answer to the questions

  • Why aren’t I compensated for the full loss of Income?
  • Why am I held accountable 24/7 when I’m only compensated for 10 hours a week?

Is because the scheme is not intended to compensate everyone for the entire loss of income – particularly if a person is a high income earner and it is designed to impose scrutiny because the Daily Telegraph and the radio shock jocks get outraged over perceived ‘bludgers’ and governments respond to such ‘moral panics’.

For further reading see:


Categories: Researchers

Authority to enter private property for a hazard reduction burn

9 July, 2016 - 12:41

This question comes from NSW

Does the [NSW] RFS have authority to enter private property for a planned hazard reduction burn on another property without the permission of the landowner? Also are RFS able to plan and conduct a planned hazard reduction burn on a property without the permission of the landowner? This is would be because they are doing a burn on the neighbour’s property and want to extend the burn.

The answer has to be ‘no’.

Let us consider the authority of an RFS officer (I’m not going to go through the steps about how officers receive delegated authority from the Commissioner, I’ll assume that in this discussion we’re talking about duly authorised officers).  First s 22 says (emphasis added):

An officer of a rural fire brigade … may, for the purpose of controlling or suppressing a fire or protecting persons, property or the environment from an existing or imminent danger arising out of a fire, incident or other emergency:

(a) exercise any function conferred on the officer by or under this Act, or

(b) take any other action that is reasonably necessary or incidental to the effective exercise of such a function.

The Rural Fires Act 1997 (NSW) the gives members of the RFS specific power to enter private land in a number of circumstances.  For example:

  • “An officer of a rural fire brigade or group of rural fire brigades may enter any premises for the purpose of exercising any function conferred or imposed on the officer by or under this Act” (s 23);
  • “An officer of a rural fire brigade or group of rural fire brigades may, if persons are, or property is, endangered or likely to be endangered by a fire, incident or other emergency, do any of the following things…

(c) destroy or remove or cause to be destroyed or removed any living or dead vegetation on any land,

(d) establish fire breaks on any land or cause fire breaks to be established on any land (s 25);

  • “The Commissioner may enter and inspect any land for the purposes of investigating the cause or origin of any fire that has occurred on that land or any adjacent land, but only for a period of up to 24 hours after the fire has been put out” (s 33B).
  • Bushfire prevention is dealt with in Part 4 of the Act. That part provides that a landowner can be served with a notice requiring them to reduce the fire hazard on their property (s 66).   In order to decide whether or not to issue a notice or to see if a notice has been complied with:

A hazard management officer may … enter during the daytime any part of the land (other than a dwelling-house) that it is necessary to inspect in order to form that opinion (s 69).

  • If “the owner or occupier … fails to comply with any requirement of the notice, the Commissioner may … enter on the land and carry out the bush fire hazard reduction work the owner or occupier was required to do under the notice” (s 70(2)).
  • “It is the duty of the owner or occupier of land to take the notified steps (if any) and any other practicable steps to prevent the occurrence of bush fires on, and to minimise the danger of the spread of bush fires on or from, that land” (s 63). If a landowner fails to do that then the Commissioner may carry out that bush fire hazard reduction work (s 73) on land.

We can rule some of these out as clearly not relevant eg s 33B relating to investigating the cause of the fire.  The other provisions fall into one of two categories – responding to fire (firefighting) and hazard reduction.

The first category is ss 23 and 25.  One could argue that as it is a function of the RFS to take steps for the ‘prevention, mitigation and suppression of fires in rural fire districts’ (s 9) then undertaking hazard mitigation work is performing a function ‘conferred on the officer by or under this Act’ (s 22) which, in turn, allows entry to land.  The problem with that argument is the general power (s 22) is limited to ‘suppressing a fire’ or ‘an existing or imminent danger arising out of a fire’.  One could then argue that a build-up of vegetation gives rise to ‘an existing or imminent danger’ but that arguments been tried, and lost.

In Lobsey v Care (1983) 1 M.V.R. 1 private landowners were conducting a hazard reduction burn along the side of the road.  They were burning off vegetation that was on land owned by council but that was between the road and their private land. A driver came around a corner and drove into the flames from the burn off. The driver ran into a car travelling in the opposite direction. One person was killed and two were injured.  One of the landowners was also a landowners was also the captain of the local bushfire brigade.  He relied on ss 22 and 48 of the Bushfires Act 1949 (NSW).   Like the current Rural Fires Act, these sections granted various powers to brigade captain to take action to protect life and property against ‘any existing or imminent bushfire danger’.   The NSW Supreme Court held that the phrase ‘existing or imminent’ qualified the term ‘bushfire’ rather than ‘danger’; that is it had to be the bushfire that was existing or imminent, not the danger.  In the same way the current Act refers to ‘an existing or imminent danger arising out of a fire’ it has to be a fire that is posing the danger, not the mere potential of fire.

President Moffit (ie President or Chief Judge of the Court of Appeal) held that the wide powers granted had to be narrowly interpreted and brigade captains couldn’t exercise powers to enter and build fire breaks or destroy property because of a real danger that a fire may occur; there had to be a risk from a fire actually occurring.   He said the powers granted to captains were limited to case of extreme emergency ‘where the bushfire brigades will have to make decisions in the agony of an immediate peril to people and homes, so that bona fides is the sole restraining force in decisions which may result in the destruction of the property of others without compensation or other redress.”  Hazard reduction burns, were outside the terms of both s 22 and s 48.

Justice Priestly (with whom Justice Samuels) agreed, referred to the evidence of that there was no urgency or imminent danger at the time they chose to light the fire that is they could have had their pick of days in which to burn. They were taking action against a possible future, not imminent, threat.

Whilst that is a different Act it is my view the interpretation would be the same.  Sections 22, 23 and 25 are related to firefighting when a fire is actually burning and threatening lives or property.  They do not apply to hazard reduction burns.  That argument is further supported by the fact that there are specific provisions relating to hazard reduction burns.  If the general powers in ss 22 and 23 were intended to apply to hazard reduction, Part 4 would not be necessary.  Part 4 sets up quite a difference scheme.  These are not matters of urgency, notices have to be served, time given to allow people to comply and then further notice of an intention to enter the premises and then, and only then, can the RFS enter the premises to conduct the hazard reduction work.

Let me go back to the question.  And I’ll break it down a bit.

Q: Can the RFS enter private property for a planned hazard reduction burn?

Yes, but only if the landowner has been given a notice (s 66) requiring him or her to undertake hazard reduction activity and  they haven’t complied with that notice.

Q: Can the RFS enter private property for a planned hazard reduction burn on another property without the permission of the landowner?

No, there is no power to do that.   Private property is private property.  I don’t have to allow the RFS access to my property in order to do something for the benefit of my neighbour.   Lord Denning (an English law lord) said in Southam v Smout [1964] 1 QB 308 at 320.

“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.” So be it—unless he has justification by law.

That’s a great quote, and not quite on point as it’s about entering the house rather than the land around it, but the principle is the same.  The RFS can’t enter private property without lawful justification any more than the King of England can – so without lawful authority you can’t enter one person’s property because it makes it easier to perform a function on another person’s property.

Q: Is the RFS able to plan and conduct a planned hazard reduction burn on a property without the permission of the landowner? This is would be because they are doing a burn on the neighbour’s property and want to extend the burn.

Again, no.  The RFS could, if for example, it was thought necessary to do a burn on one property and that the hazard cross the border onto the neighbour’s property.  In that case the RFS would have to ask the neighbour if they could do the burn, but if permission was refused they would have to comply with the provisions in the Act. That is the landowner would have to be given notice of steps that they are required to take ‘to prevent the occurrence of bush fires on, and to minimise the danger of the spread of bush fires on or from, that land’ (ss 63 and 66), they would have to be given time to comply with those directions or notice, there would have to be notice of an intention to enter the land to complete the hazard reduction work (ss 70 and 73).  It’s certainly not permissible to decide that the burn being done on one property would be more effective it if was extended to a neighbouring property and so enter that neighbouring property to conduct that burn.

 


Categories: Researchers

Liability for signing off a NSW SES Safety Management Sheet?

8 July, 2016 - 16:30

This question comes via a Facebook user group, but I am responding to it with permission of the person who initially posted it .

The question has been raised in regards to the legal impact of a Team leader signing the now mandatory Safety Management Sheet (SMS) and what is their personal liability should something unforeseen go wrong.

Scenario: Crew arrives at a job, the SMS is completed via Beacon which is signed under his/her name. At that point in time the job deemed to be safe to do, but during the operation unbeknown to the team lead the situation changes or something unforeseen happens and there is an injury to a team member occurs …. At a future point in time the injured team member puts in a claim against the service and during the process the Team lead is implemented because his/her name was associated with the SMS …

So the question is, as the SMS is now a requirement via Beacon is there a risk that the Team lead will have personal liability for the injury because they are the one associated with the SMS or is there some sort of coverage/indemnity to protect the Team lead?

The Safety Management sheet is in effect a check list or an aide memoire to the SES safety policy.  It requires members or team leaders to stop and consider risks and what they might do to minimise the risk and to record their actions and decisions.  In essence the question is asking ‘what is the legal issues for a team leader who assesses a job as safe but it turns out that it isn’t?’

The first thing to address is the role of documents.  The SMS (whether it’s a piece of paper or a computer entry) is evidence as to what it records – that is at a given point in time someone thought the things recorded were true. It doesn’t prove they were true and it is not a statement that is forever true.  I can record that I believe that something is true, but it doesn’t mean I still believed it 5 minutes later.   The best a ‘fixed in time’ document does is grab a shapshot of the state of mind of the person completing it, at that time.  The first implication of ‘signing off’ the SMS is that if something goes wrong, someone – whether it’s a senior officer, the police or SafeWork NSW (formerly Workcover) depending on the actual event, might ask the author – ‘what happened?’

Civil Liability

As for ‘personal liability for the injury’ let me make this crystal clear – there will be none.   A member of the SES who is injured is provided compensation via the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) (see Workers compensation benefits for NSW emergency service workers (July 21, 2015)).  This Act, in effect, brings volunteer workers under the workers compensation scheme for employees.  The critical point about workers compensation is that it is a no fault scheme.  The Workers Compensation insurer meets the claim because the person has been injured in the course of his or her duties.   Fault is not an issue.

If the insurer has paid out compensation in circumstances where a third party caused the injury, then the insurer can seek to recover the amount paid from that third party (Workers Compensation Act 1987 (NSW) s 151Z(1)(d)).    Would that extend to the person who signed off on the SMS?  No.

First signing off on the SMS would not be the cause of the accident or injury. Second to be liable there has to be negligence, even if the assessment was wrong and a risk was missed it doesn’t mean there was negligence, particular in the scenario given where ‘unbeknown to the team lead the situation changes or something unforeseen happens’.  If it’s ‘unbeknown’ and ‘unforeseen’ then it can’t be protected against, unless the circumstances are such that the person should have known or foreseen the issue.   Even if that’s true the State Emergency Service Act 1989 (NSW) s 25 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 … subject the member, officer or volunteer personally to any action, liability, claim or demand.

The Civil Liability Act 2002 (NSW) s 61 also says that ‘A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work…’  I think we can assume, for the sake of the argument, that the SES is engaged in community work.

What is good faith?  In Mid Density Developments Pty Limited v Rockdale Municipal Council [1993] FCA 408. Justices Gummow, Hill and Drummond JJ said (at [24]):

His Honour found that the statutory concept of “good faith” in the performance of the functions in question, included two criteria. The first was that the act be done bona fide and not maliciously or to achieve an ulterior purpose. The second was that there be “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”.

Apply that here provided a member is acting ‘bona fide’ (ie you’re not saying the job is safe because you don’t like a team member and you know there’s a risk but don’t tell them in the hope that they’ll hurt themselves) and you are actually trying (not just filling in the boxes so you can say the form was completed without any attempt to actually think about the issues raised) then you are acting in good faith and are not liable.

Even if you were liable, the SES would be vicariously liable for your actions, gross negligence or deliberate criminal conduct excepted (see Vicarious liability for the actions of fire wardens (March 5, 2016); Queensland paramedics, registration and misunderstanding the law on liability (April 12, 2016).

So a person has signed off the SMS. That doesn’t prove that they were negligent.  It doesn’t mean the assessment at the time was wrong.  It doesn’t mean the assessment at the time was ‘unreasonable’.  It doesn’t mean that they caused the accident.  It doesn’t mean they weren’t acting in good faith.   Further if they assessed a risk as ‘low’ that didn’t mean it would not occur.  Even low probability events occur.

It follows that there will be NO liability attaching to the team leader for the payment of compensation just because they signed off on the SMS sheet.  It is simply not an issue.

Work Health and Safety Act 2011 (NSW)

I suggest that this question is really about criminal liability under this Act, not civil liability to pay damages for any injury suffered.  It is well known that with this Act the concept of ‘worker’ has been extended to include a volunteer (s 7).  As a worker, a volunteer has various duties under the Act (s 28) and they are, ultimately, enforced by way of the criminal law (ss 30-34).

A volunteer can only be prosecuted (ss 28, 29 and 34) if his or her conduct is such that they failed to:

(a) take reasonable care for his or her own health and safety,

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons,

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act,

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

Reasonable care doesn’t mean that they had to guarantee safety, just take ‘reasonable care’.    ‘Reasonable care’ is a concept familiar to negligence law.  To borrow from that case law to take reasonable care you need to first recognise the risk (understanding here that the issue was ‘unbeknown’ and ‘unforeseen’) and then take ‘reasonable measures’ to control the risk.  What is reasonable requires consideration of:

… the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities (Wyong Shire v Shirt (1980) 146 CLR 40, 48).

Even if the risk is foreseen it may be impossible to eliminate it and one also has to consider the job at hand.  Cutting up a tree on a driveway probably warrants less risk than getting someone out of a floating car.  Leaving the tree on the driveway may be inconvenient, leaving the person in the car may be fatal.  So the fact that there is a poor outcome doesn’t mean that there was not reasonable care.

In the criminal law the burden of proof is ‘beyond reasonable doubt’ so the prosecutor, in the unlikely event they wanted to prosecute the team leader would have to show that the team leader failed to take reasonable care.  Just because the person signed off on the SMS that doesn’t prove that they were negligent.  It doesn’t mean the assessment at the time was wrong.  It doesn’t mean the assessment at the time was ‘unreasonable’.  It doesn’t mean that they caused the accident.  It doesn’t mean they weren’t acting in good faith.   Further if they assessed a risk as ‘low’ that didn’t mean it would not occur.  Even low probability events occur.

What of the State Emergency Service Act 1989 (NSW) s 25 and the Civil Liability Act 2002 (NSW) s 61?  The Civil Liability Act won’t help here because we are talking about criminal liability so the Civil Liability Act will be irrelevant.    On its face the SES Act is not limited to civil liability – it refers to ‘any action, liability, claim or demand’.  Section 78 of the Fire Brigades Act 1989 (NSW) also refers to a thing ‘done, in good faith…’ and provides that such an action does not subject any person ‘to any action, liability, claim or demand’.   In Workcover v Crown in the Right of the State of New South Wales (NSW  Fire  Brigades) [2006] NSWIRComm 356 the New South Wales Industrial Commission had to consider whether s 78 gave a defence to the NSW Fire Brigades when they were prosecuted over the deaths of three workers during a factory fire at Rutherford, near Newcastle.  At [51] Justice Boland took the ‘… tentative view’ that the words ‘any action, liability, claim or demand’ did not include criminal proceedings and that “s 78 of the Fire Brigades Act does not provide a general immunity from criminal liability”.   Assuming that his Honour’s ‘tentative view’ is correct, then the State Emergency Service Act 1989 (NSW) s 25 will not be relevant in a criminal prosecution because the words ‘any action, liability, claim or demand’ do not extend to the criminal law.

Do note that even in this case, where three people died and others were injured, it was not the firefighters that were being prosecuted. It was the State of New South Wales for the failure to properly train and equip those firefighters.  Everyone works in a system. If you are an SES volunteer you have the training you have, the resources you have and the policy options to follow.  If you apply those and someone gets injured it’s not your fault.  If you apply them badly and still someone gets injured it’s still not your fault – it reflects then on your training, supervision and mentoring as well as the culture of the agency.   Finding examples where an individual may get prosecuted are extremely difficult – Even in Cahill v NSW Police [2005] NSWIRComm 33, where a police radio technician was working at the front of a police truck when a police officer, as a joke, activated the siren causing permanent damage to the victim’s hearing, it was the NSW Police that was prosecuted.

(See also Michael Eburn, ‘Changes to occupational health and safety laws and the impact on volunteers in the emergency services’ (2011) 26(4) Australian Journal of Emergency Management 45-49).

Conclusion

Signing of on the Safety management Sheet means, at most, that the person signing off believed that what was recorded was true at that minute. It might give an investigator a starting point – ‘given that this was how the risk was assessed, what if anything went wrong? Given this starting point how did this accident happen?’

There is NO chance that merely signing off the SMS would lead to civil liability for the damages suffered should anyone get injured.

There is also NO chance that merely signing off the SMS would lead to liability under the WHS Act.

Just because the person signed off on the SMS that doesn’t prove that they were negligent.  It doesn’t mean the assessment at the time was wrong.  It doesn’t mean the assessment at the time was ‘unreasonable’.  It doesn’t mean that they caused the accident.  It doesn’t mean they weren’t acting in good faith.   Further if they assessed a risk as ‘low’ that didn’t mean it would not occur.  Even low probability events occur.


Categories: Researchers

A ‘warrant card’ for Paramedics?

3 July, 2016 - 17:17

This question comes from a Queensland based paramedic:

I’m curious about a paramedic’s right to forcibly enter a home in order to render aid.  Is this something that paramedics are legally allowed to do?

Here’s a simple scenario: Paramedics respond to a private residence because family members cannot get their elderly mother to answer the phone and want the paramedics to check in on her.  Paramedics arrive without Police or Fire on scene, and, looking through the window of the front door, they see the patient has collapsed and is not responding to them knocking.  They try all the windows and doors but there is no way to gain entry without breaking in.  I know most paramedics probably would forcibly enter the home, and they’d probably have the thought in the back of their mind that they could reasonably defend their actions in court, if they were required to do so.  However, I do wonder – are they legally allowed to do so?

I was discussing this with a (Canadian) friend who worked with the Police there for years and he said “I’ve always had the opinion that Paramedics should have warrant cards for situations like that” and he explained that in Commonwealth countries a warrant card is simply something that allows a normal citizen to legally do specific (and limited) things that citizens aren’t normally allowed to do – like breaking down your front door and entering your house without permission.

Can we break people’s doors down legally if it is required?  If not, would the issuance of a warrant card be a reasonable solution?  I’m curious what your take on this is.

With respect to the issue of forcing entry to provide treatment see:

The answer is clear enough, paramedics do have authority to force entry in the circumstances described.

As for the issue of a ‘warrant card’ that is a different matter.   The term ‘warrant card’ is shorthand for a police officer’s official ID (see that great source of information, Wikipedia, Warrant Card).  Whilst the term is used in some legislation (eg State Emergency and Rescue Management Act 1989 (NSW) s 61E ‘Police officer to produce warrant card  if required’) it is not defined.

Whatever a warrant card is, it is NOT “something that allows a normal citizen to legally do specific (and limited) things that citizens aren’t normally allowed to do – like breaking down your front door and entering your house without permission”.   No-one, not the Commissioner of Police, not the Minister, not the Premier nor the Prime Minister, Governor, Governor-General or even the Queen can simply exempt someone from the operation of the law.

Permission to do something which is otherwise illegal is a ‘licence’ (Federal Commissioner of Taxation v United Aircraft Corporation (1943) 68 CLR 525).  For someone to give ‘licence’ to someone else there needs to be lawful authority.  For example under the Rural Fires Act 1997 (NSW) “An officer of a rural fire brigade or group of rural fire brigades may enter any premises for the purpose of exercising any function conferred or imposed on the officer by or under this Act” (s 23) and may in some circumstances, use reasonable force for the purpose of gaining entry (s 31).  However, a person can only exercise those powers if they are:

… in possession of an authority and produces the authority if required to do so by the owner or occupier of the premises.

(2) The authority must be a written authority that:

(a) states that it is issued under this Act, and

(b) gives the name of the person to whom it is issued, and

(c) describes the nature of the powers conferred and the source of the powers, and

(d) states the date (if any) on which it expires, and

(e) describes the kind of premises to which the power extends, and

(f) bears the signature of the Commissioner.

In effect they must be in possession of what my correspondent has described as a ‘warrant card’ however the power to authorise the officer and to issue the relevant written authority comes from the Act.   It is not some ‘at large’ power vested in the Commissioner or anyone else to simply grant a citizen licence – or permission – to break the law.

So, in short, the issue of a ‘warrant card’, as described by my correspondent, is neither possible or lawful and nor would it help.  Whether it’s signed by the Commissioner or the Governor a card given to a paramedic saying this paramedic is allowed to force entry into premises means nothing unless there is an Act that allows them to grant that authority. It so happens that in Queensland there is such an Act.  The Ambulance Service Act 1991 (Qld) s 38 says

An authorised officer, in providing ambulance services, may take any reasonable measures

(a) to protect persons from any danger or potential danger associated with an emergency situation; and

(b) to protect persons trapped in a vehicle, receptacle, vessel or otherwise endangered…

(2) Without limiting the measures that may be taken for a purpose specified in subsection (1)(a) or (b), an authorised officer may, for that purpose—

(a)  enter  any premises, vehicle or vessel …

(e) destroy (wholly or partially) or damage any premises, vehicle, vessel or receptacle…

An authorised officer is an officer authorised by the Commissioner to exercise the powers set out in s 38 (see s 37).   The Commissioner could arrange to issue some form of ID (or ‘warrant card’) to confirm that a particular paramedic is ‘authorised’ but the Act does not require that.    The only time when a card might help is on the ground if the paramedic is seeking to exercise their power and someone questions their right to do so.

Conclusion

Can we break people’s doors down legally if it is required? 

Yes – and the authority of ‘authorised officer’ comes from both the common law (discussed in the earlier posts) and the Ambulance Service Act 1991 (Qld).

If not, would the issuance of a warrant card be a reasonable solution? 

Only if a relevant Act authorised the issue of a card or ID and said that effect that had, for example Rural Fires Act 1997 (NSW) s 31.  No such card is required for an authorised ambulance officer in Queensland.

 

 

 

 

 

 

 

 


Categories: Researchers

Transporting a Queensland prisoner by ambulance – and stopping at an accident

1 July, 2016 - 11:11

Sometimes I get questions where someone says “I’ve been told this … and is it correct?” and sometimes I think ‘how could anyone think that?’  This is one of those questions from a Queensland paramedic – and it’s not the paramedic who’s left me shaking my head, but the person who gave the initial advice.  My correspondent says:

My duties require me to regularly transfer prisoners from a number of local prisons to nearby hospitals for medical review and treatment. In such instances there are usually two prison guards escorting the prisoner in the ambulance or a prison officer in the ambulance with an armed prison officer following the ambulance in an escort vehicle with attack/tracking dogs.

In a recent transfer while speaking with a prison officer it was indicated to me that if I were to be involved in a traffic incident, say another vehicle or a pedestrian, that I would not be permitted to stop and render assistance due to there being a prisoner in the vehicle.

My understanding is that my obligations under Queensland law are twofold:

  1. I am a uniformed Ambulance Officer who is on shift (therefore currently receiving financial reward) so am obliged to stop and render assistance.
  2. Under the Section 92 of the Transport Operations (Road Use Management) Act 1995 (QLD) a vehicle involved in a road incident resulting in injury or death must (a)  immediately stop the vehicle, tram or animal; and (b) if any person is injured – (i) remain at or near the scene of the incident and immediately render such assistance as the driver can to the injured person

I would also think that as a paramedic in an operational ambulance vehicle my obligations under the Transport Operations (Road Use Management) Act 1995 (QLD) would extend considerably further than my obligations if I were to be involved a traffic incident in my private vehicle on a day off. That is to say I would be required to stop and treat any injured person in a manner which is consistent with my training, skills and education. I.e. I could not just give someone a cursory examination and continue on with the transport

My question is:

If I am the paramedic and driver of an Ambulance vehicle in Queensland that is:

  • transporting a prisoner; and
  • that vehicle is involved in a road incident; and
  • I believe or have the reasonable belief that the road incident has resulted in injury or death;

Am  I still obliged to stop the ambulance, remain at the scene and assist the injured parties even if this is contrary to the instruction of the escorting prison officer/s?

I am not going to address whether being a ‘uniformed Ambulance Officer who is on shift (therefore currently receiving financial reward)’ gives rise to a separate obligation to stop and render assistance, because I don’t need to address that to answer the question – but see Failure to attend by NSW Police and Ambulance (December 18, 2013).

Everything my correspondent says about the Transport Operations (Road Use Management) Act 1995 (Qld) is correct.    There is the normal exemption from the operation of the road rules for the driver of an emergency vehicle set out in the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) r 306 but that won’t apply here.  First we can assume that a patient transfer is not an emergency within the meaning of the rules and second, r 306 grants an exemption from the provisions of the provisions in the Transport Operations (Road Use Management—Road Rules) Regulation 2009 not the Act.

So is there any relevant exemption from s 92 of the Act?  The answer is ‘no’.  And it should be noted there is no exemption for anyone, including Queensland Corrective Services.  That section applies whether the prisoner’s being transferred in a station wagon, a prison van or an ambulance.   And the legislature has thought about exemptions for prison vehicles eg the Corrective Services Act 2006 (Qld) s 353 says “A vehicle being used to transport prisoners is exempt from payment of a toll for the use of a road, bridge or ferry” and the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) grants some exemptions from the requirements to ensure that a passenger in a prison van is wearing a seat belt (rr 265(5) and 266(5A)).  The legislators know that the road rules apply to vehicles being used to transport a prisoner and have given the exemptions they want to give. There is no exemption from the obligation to stop and render assistance.

One can apply a ‘reality test’ here to see if this makes sense. On the one hand the fear must be that the accident is a ruse to facilitate the escape of the prisoner.    If there is actual evidence of that – eg after the accident armed offenders appear demanding the release of the prisoner – then there would be grounds to try to drive away, though I would have thought the more prudent response of a  paramedic is to say ‘you want him, you can have him’.    Even if the people seeking to secure the prisoner’s escape have done so by running over an innocent pedestrian in front of the ambulance, the paramedics may well be better off getting out to help the pedestrian and let the offenders escape.  The paramedic’s job is to render care, not secure the prisoner, that’s the job of the prison guards (and I don’t suppose they want to get shot either).

Assuming there’s no evidence of an escape attempt, on what basis could a paramedic not stop?   Why would the security of the prisoner (which is not the ambulance service’s problem) take priority over the health and well-being of someone else?  Imagine it’s your family member that has been injured, perhaps in circumstances where failure to provide immediate paramedic assistance means the outcome is fatal, do you think you would be satisfied with the explanation ‘but we had to keep a prisoner, with a non-life threatening condition, secure’.    Why would that take priority particularly if there are prison guards there who can secure the prisoner whilst immediate care is given to the injured?

As for the prison guard’s instructions, the prison service doesn’t own the ambulance and the ambulance crew aren’t subject to the prison guard’s direction and control. It is not for the prison guard to tell the driver of an ambulance what he or she is ‘permitted’ to do.  Imagine, if you will, you are transporting a person to hospital ‘for medical review and treatment’ and you are involved in or observe an accident where someone is injured.  Would you allow the patient’s family to tell you ‘you are not permitted to stop’ because they think their family member’s needs, or worse, their own needs are more important?  The answer is ‘no’ and the prison guards are in the same position.   It’s not like a taxi service where having hired the taxi I can say whether or not the taxi driver can take on a multiple hire (Transport Operations (Passenger Transport) Regulation 2005 (Qld) s 66) so I can’t tell a paramedic not to treat an injured person because I, or my loved one, or my prisoner, got into the ambulance first.  And if I hire a taxi, I can’t tell the driver to keep going after he or she has been involved in an accident because me getting to where I want to go is more important than the needs of the injured.  The guards are there to secure the prisoner not tell the paramedics how to treat them or how to drive.  If the prison service wants to give those sort of directions it should buy its own ambulance and employ its own paramedics, but even then the prison service couldn’t give instructions to ignore the provisions of the Transport Operations (Road Use Management) Act.

Conclusion

Let me reiterate that this answer does not apply if there is reason to believe that the entire situation is a ruse designed to facilitate the escape of the prisoner but assuming that’s not the case there is nothing in the Transport Operations (Road Use Management) Act 1995 (QLD); the Transport Operations (Road Use Management—Road Rules) Regulation 2009; the Corrective Services Act 2006 (Qld); the Corrective Services Regulation 2006 (Qld); the Ambulance Service Act 1991 (Qld) or the Ambulance Service Regulation 2015 (Qld) – or logic – that would give a paramedic an exemption from the requirements of the Transport Operations (Road Use Management) Act 1995 (Qld) s 92.

Any prison guard who says a paramedic ‘would not be permitted to stop and render assistance due to there being a prisoner in the vehicle’ is speaking, to put it politely, through his or her hat.


Categories: Researchers

The CFA Enterprise Bargaining Dispute v 2

28 June, 2016 - 13:03

I’m writing this to make my conclusions clear.  As I tell my students, if readers don’t understand your position it’s the fault of the writer, not the reader.  In the first version of this post I set out my arguments but after much discussion with others (see the comments after my first post – The CFA Enterprise Bargaining Dispute (June 24, 2016)) I want to try and set out my conclusion (not so much the arguments) with greater clarity.  My aim is not to have my position misrepresented by either the VFBV, the UFU, their members, the media or the government.  My position is:

  1.  I make no judgment on whether the proposed Enterprise Agreement (EA) is in the best interests of the Country Fire Authority (CFA), the United Firefighters Union (UFU), the Volunteer Fire Brigades Victoria (VFBV), paid firefighters, volunteer firefighters or the community. That is not my task.  Whether my conclusions mean that the EA should not be signed is a question I don’t address but I do note that I do not think that a conclusion that the proposed EA is contrary to s 6F of the CFA Act means that it cannot be signed.   It may be that all things considered, the EA is in the best interests of the CFA, the UFU, the VFBV, paid and volunteer firefighters and the community, or just some of those parties. I make no comment on any of that.  That is not my task.  My role, on this blog, is to look at the law and consider it’s terms (I go back to the point on my first post of being a ‘legal positivist’).  Accordingly my conclusion is based on ‘an abstract legal perspective’.  Not only am I ‘missing out vital operational considerations’ it is not my role to address those considerations.
  2. My conclusion is that the proposed EA (as it appears on the CFA website) is inconsistent with the CFA Act because s 6F says:
    “The Parliament recognises that the Authority is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner.”
    To give effect to that recognition there is the Volunteer Charter (s 6G), an obligation upon the CFA to give effect to that charter (s 6H) and an obligation upon the CFA “to develop policy and organisational arrangements that encourage, maintain and strengthen the capacity of volunteer officers and members to provide the Authority’s services” (6 H).
  3. It is my view that having arrangements that distinguishes between firefighters, in operational issues, is inconsistent with s 6F and the intention that is implied by ss 6F-6I. So clauses that say the CFA will respond ‘seven professional firefighters’ rather than ‘seven firefighters’ or that ‘professional firefighters’ will not report to volunteers (level 3 multiagency events and CFA volunteer Incident Controllers excepted) is not consistent with s 6F nor s 6H ie they do not reflect “a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner” and they do not “strengthen the capacity of volunteer officers and members to provide the Authority’s services”.  The clauses may, or may not, be perfectly sensible for the protection of the health and safety of the CFA’s employees or for the better protection of the community.  Whether they are sensible or not, does not change my opinion that they are inconsistent with the Act.
  4. There is no doubt much in the way in which the CFA operates that is inconsistent with s 6F and it is perhaps the case that s 6F is a section without meaning. It may be impossible to have a “fully integrated” service if the volunteers are rated “first and foremost”.    But just because the objectives set out in ss 6F-6I have not been fully realised, and perhaps cannot be realised, doesn’t alter my conclusion that this proposed EA is contrary to those provisions in the Act.  Some might think that being contrary to those provisions is trivial or irrelevant because those provisions can’t be, or aren’t given effect elsewhere by the CFA.  That may be true and may justify the CFA agreeing to the EA.  Others, no doubt, believe those provisions are central to the character of the CFA and the service the CFA provides to the Victorian community.
  5. My objections would disappear if for example cl 83.5 referred to ‘firefighters’ rather than ‘professional firefighters’. The UFU and paid firefighters may have genuine and serious objections to that change on say OHS grounds, but that is not what I’m addressing.  I’m addressing conflict with the CFA Act.   If the section said ‘the CFA shall, within 90 seconds of the alarm, dispatch seven firefighters’ or ‘the CFA shall dispatch seven firefighters who hold listed minimum qualifications’ that might remove my objection. (I say ‘might’ because if you impose conditions that volunteers can’t meet, that could be implementing a policy that fails to “strengthen” or even hinders “the capacity of volunteer officers and members to provide the Authority’s services”. On the other hand if there are volunteers that can meet the necessary criteria, a clause like that would strengthen their “capacity … to provide the Authority’s services” by allowing them to work with their salaried colleagues).   In any event I make no comment on whether those requirements would be reasonable or should be in the EA, nor whether a hypothetical provision would be consistent or inconsistent with the Act.
  6. With respect to cl 36.4 I don’t see how that can be made consistent with the current Act.
  7. One way to resolve the inconsistencies would be to repeal ss 6F-6I. I do think that legislators should ‘say what they mean and mean what they say’ so if the CFA isn’t, or can’t be, that which is described in s 6F then the section shouldn’t be there; but whilst it (and ss 6G-6I) are there, the CFA has to try to give meaning and effect to those sections.
  8. As for cl 90.4 I see that gives ‘extraordinary’ powers to the UFU as it requires the UFU to ‘agree’ with the CFA on OHS issues, not merely be consulted, even though there are detailed consultation provisions in both the OHS Act and the proposed EA. An obligation to ‘agree’ gives the UFU authority at the workplace that is above and beyond that which employees and their associations have at other workplaces.  Whether it is a good idea or not, and whether the hazardous nature of the work warrants that, is something I make no comment on.  I’m merely drawing out the difference between the positions of the UFU as it would be under the EA compared to the OHS Act.
  9. I don’t think all of the criticism of the EA are made out. For example in their other areas of concern the CFA refers to:
    “Clause 95 – Infrastructure – prescribes in unnecessary and restrictive manner where a volunteer can and cannot go within a fire station. It is divisive in its terms and can sensibly be managed by each fire station within existing guidelines without this prescription.”
    I can’t see that cl 95 (at least on the version of the EA on the CFA website) ‘prescribes in unnecessary and restrictive manner where a volunteer can and cannot go within a fire station’.
  10. I can see that the EA restricts some of the powers of the Chief Officer (see Josh Gordon and Richard Willingham ‘CFA crisis: Victoria’s chief fire officer under pressure over union dealThe Age (Online) (June 28, 2016)). The Chief Officer’s powers are set out in the Act. Section 29 says, inter alia, that the Chief Officer ‘shall at all times have the charge and control of all apparatus and other property of the Authority and shall cause the same to be kept in a fit state at all times for efficient service’.  It doesn’t say that the Chief Officer shall determine what appliances the CFA will purchase or what uniforms it will buy.   The obligation to agree with the UFU on items of equipment “to be used or worn by employees” does not mean ‘used or worn today’ so that it doesn’t imply that the UFU have to agree to ‘this appliance being sent to this fire’.  It is about the decisions made by the CFA (not the Chief Officer) on what equipment to buy.   I don’t therefore see that cl 90.4 affects the Chief Officer’s powers.
  11. Section 28 however says:
    “The Chief Officer may, by written instrument, delegate to any person by name or to the holder of an office or position approved by the Authority, either generally or as otherwise provided by the instrument, any power or authority conferred on the Chief Officer under this Act or the regulations or any other Act or regulations.”
    One of the powers of the chief officer is to “have the control and direction of— (i) any brigade or brigades present at the scene of the fire” (s 30(1)(b)).  Where cl 36.4 says “All employees covered by this agreement shall only report to operational employees” (level 3 multiagency incidents or volunteer CFA incident controller excepted) that may limit the Chief Officer’s power of delegation.  It may mean that a volunteer cannot exercise the chief officer’s powers that have been delegated to that volunteer if he or she is not the incident controller (eg if they are appointed sector commander at a level 2 event; or are directed to lead a team made up of both volunteer and paid firefighters).
  12. In conclusion, I still think:
    1. The enterprise bargaining agreement, central to the sackings, is contrary to the CFA Act – because provisions are inconsistent with the idea of the CFA as “first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner”. It may be that the CFA is not really “first and foremost a volunteer-based organisation” nor does it operate as a service where “volunteer officers and members are supported by employees in a fully integrated manner” and it may be achieving that will never be possible.  That doesn’t alter my conclusion.
    2. It provides unprecedented powers within the CFA to the United Firefighters Union – in that it gives them greater powers than other unions under the Occupational Health and Safety Act.
    3. The EA undermines the role and independence of volunteers – it undermines the role of volunteers by, in some circumstances, limiting the roles that volunteers can play, or the positions that they can take when working with their paid colleagues. It undermines the independence of volunteers in circumstances where matters which require UFU agreement also apply to volunteers (eg uniform choices).  In that case the volunteer’s voice may not be fully heard as the UFU agreement is required regardless of the position adopted by volunteers.
    4. Those sacked or resigning had no choice but to oppose the EA – if they believe it is inconsistent with the Act they have to oppose the EA as they have to comply with the legislation. If faced with what they see as irreconcilable, conflicting responsibilities to the Legislature and the Government of the day, then the appropriate action is to resign or to stand one’s ground and get sacked.

Categories: Researchers

Carrying Scheduled Drugs interstate v 2

27 June, 2016 - 14:51

I wrote a post on Carrying scheduled drugs interstate back on  January 28, 2016.  That post was triggered by a question from a volunteer with St John Ambulance (NSW). The issue arose because St John Ambulance (ACT) were unable to provide requested first aid cover and asked their NSW colleagues to assist. The question was whether the NSW members could carry scheduled drugs that they were authorised to use, into the ACT. I had assumed that there must be legal provisions in place to allow people to carry drugs across state and territory borders as it must happen on a regular basis – ambulance paramedics, non-emergency patient transport services, commercial and volunteer first aid organisations as well as registered health professionals must often cross borders whilst carrying their normal ‘drug kit’.

My research failed to identify any relevant legal authority. My conclusion was

… to possess, supply or administer a schedule 2, 3, 4 or 8 medicine in the ACT a person has to have an authority issued by the Chief Health Officer of the ACT. Presumably members of St John Ambulance Australia (NSW) do not have that authority. It follows that if they wanted to travel to do duty in the ACT any authority they have under the relevant NSW law would not be sufficient and they would have to leave their scheduled drugs at the border.

I came to a similar conclusion for people travelling from the ACT to NSW.

In that post I said:

I confess this is an issue I’d ‘skirted’ around in earlier answers that is the question asked didn’t need me to address this head on, so I didn’t but now I have no choice and it appears that the answer is ‘No, an interstate authority is not sufficient’. As I say I think this answer is both surprising and important for the sector so in this blog I’m going to limit myself to the facts given, ie St John volunteers crossing between NSW and the ACT. I may take time to write a more detailed paper looking at all health professionals (in particular doctors, nurses and paramedics) and all states and look to publish that in an appropriate journal, perhaps the Australian Journal of Emergency Management. Watch this space and I’ll let you know if and when that happens.

In researching this matter further, I am now persuaded that I was wrong and that there is relevant authority.

In New South Wales the Director General can give authority to supply, prescribe or administer scheduled drugs (Poisons and Therapeutic Goods Regulation 2008 (NSW) r 170(1)). Regulation 170(3) says that ‘… any exemption in force under a law of the Commonwealth, or of another State or a Territory, corresponding to this clause has the same effect as an exemption under this clause’. It follows that if a person has an authority issued in the ACT that will be honoured in New South Wales.

In the ACT ‘The Act requires that a person must not deal with a medicine in a particular way unless the person is authorised to deal with the medicine’ (Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT) r 10). A person is authorised to deal with a medicine if ‘the person has a licence or permit under a Commonwealth Act, this Act or another territory law that authorises the dealing’ (Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) s 20(1)). It follows that if a person has an authority under an interstate law that too will be honoured in the ACT.

There could be debates about whether an exemption granted under a regulation (see Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) r 190(1)(a)) is the equivalent to an exemption granted by the Director-General of Health in NSW but I can’t see that any regulator or court would seriously entertain the argument that the NSW regulation was not intended to act, in effect, as a mutual recognition provision.

Equally one might argue that an exemption set out in Appendix C to the NSW Regulation is not a ‘licence’ for the purpose of the ACT law. A licence is, however ‘an authority to do something which would otherwise be wrongful or illegal or inoperative’ (Federal Commissioner of Taxation v United Aircraft Corporation (1943) 68 CLR 525) not a card or piece of paper. The key issue is the authority, not the form so an exemption provided by regulation is as much as licence to deal with drugs in a way that would be otherwise illegal as a licence issued as a card would be.

It follows that to return to the question I was originally asked ‘Is a NSW poisons licence valid for use in the ACT?? (And potentially vice versa?)’ I am now of the view that the answer is actually ‘Yes’.


Categories: Researchers

The CFA Enterprise Bargaining Dispute

24 June, 2016 - 12:33

I have hesitated getting involved in this debate for a number of reasons.

  1. Accessing the relevant documents has been difficult but the CFA did put them up on their website last week.
  2. The proposed Country Fire Authority / United Firefighters Union Of Australia Operational Staff Enterprise Agreement 2016 runs for 229 clauses, 27 Schedules and 406 pages.
  3. On many issues that are discussed on this blog I am the only commentator. There has been much commentary on this issue including from Rush QC, former counsel assisting the 2009 Victorian Bushfires Royal Commission (‘CFA dispute deal risks our volunteers’ future: Jack Rush QC’ (22 June 2016)), and legal opinions from the  Victorian Equal Opportunity and Human Rights Commission and the Government’s Senior Crown Counsel.

Even so, I do want to enter into the debate in a limited way and consistent with what is, I’m told, my philosophical position as a ‘legal positivist’ (the law is what it is – it’s for others to say whether it’s good or bad law).   Consistent with my approach since starting this blog in 2009, it’s my job to ‘call it as I see it’ even if that is entering a political controversy and even though, whatever conclusion I come to, it will be unpopular with either Volunteer Fire Brigades Victoria or the United Fire Fighters Union and both those organisations represent ‘my’ audience.

Introduction and the Country Fire Authority Act 1958 (Vic).

I do have concerns with the proposed Enterprise Agreement and with provisions that are unique to the Country Fire Authority Act 1958 (Vic).  They are sections 6F-6I:

6F.                   Recognition of Authority as a volunteer-based organisation
6G.                  Recognition of the Volunteer Charter
6H.                  Authority to have regard to Volunteer Charter
6I.                    Authority’s responsibility to encourage, maintain and strengthen capacity of volunteers

Section 6F says (emphasis added) that the CFA ‘is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner’.  According to s 6I ‘The Authority has a responsibility to develop policy and organisational arrangements that encourage, maintain and strengthen the capacity of volunteer officers and members to provide the Authority’s services.’  Pursuant to the volunteer charter, the CFA is to ‘Recognise and acknowledge that a primary responsibility of CFA and people employed by CFA is to nurture and encourage Volunteers and to facilitate and develop their skill and competencies’.

Clause 83.5

It does appear that the current proposed Staff Agreement would not give effect to those provisions.   To take just two examples, the proposed cl 83.5 says:

Consistent with the increases in staffing provided in this Agreement, the CFA will conduct an extensive range of preventative and preparedness programs and meet its duty of care by ensuring a minimum of seven professional firefighters to fireground incidents are dispatched before commencement of safe firefighting operations. This requirement applies to integrated stations in Districts 2, 7, 8, 13, 14, 15 and 27. Consistent with the increases in staffing provided for in this Agreement, CFA will also ensure that there is a minimum of seven professional firefighters to fireground incidents that professional firefighters are dispatched to before commencement of safe firefighting operations for the following integrated stations being Shepparton and Mildura professional firefighters by no later than 1 January 2017 and Warrnambool professional firefighters by no later than 1 January 2018.

An integrated station ‘is a fire station which includes professional firefighters appointed to the station’ [11.24].

Victoria has not adopted the model Work Health and Safety Act 2011.  If it had the Act would impose the same duty to ensure work health and safety regardless of whether or not the worker is a volunteer or paid staff member (see Work Health and Safety Act 2011 (Cth) s 7 ‘Meaning of worker’).   Certainly if that Act applied, and if it was necessary to send seven professional firefighters to ensue firefighter safety, it would be equally necessary to send seven volunteers.    Under the Occupational Health and Safety Act 2004 (Vic) s 21, the primary duty is owed by an employer to an employee and a volunteer is not an employee.  Even so an ‘employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer’ (s 23).  The CFA does have a duty to ensure for the safety of its volunteers.

The effect of clause 83.5 is that if the CFA sends one paid firefighter, they have to send 7.   They can’t send 4 paid firefighters and 3 volunteers or any other combination.  It has to be seven paid firefighters.

To ‘integrate’ means (according to Oxford Dictionaries online):

1              Combine (one thing) with another to form a whole:

1.1          Combine (two things) so that they form a whole:

1.2          (Of a thing) combine with another to form a whole:

2              Bring (people or groups with particular characteristics or needs) into equal participation in or membership of a social group or institution:

2.1          Come into equal participation in or membership of a social group or institution

A fire station is not ‘integrated’ if the volunteers and paid firefighters are not combined into a whole but are treated differently because of their employment status.  Clause 83.5 would not create an ‘integrated station’ but would, instead, create a situation akin to the situation in NSW where NSW Fire and Rescue has ‘permanent’ and ‘volunteer’ brigades (Fire Brigades Act 1989 (NSW) ss 8 and 9). Even if they work out of the same station they are different brigades rather than an ‘integrated’ brigade or station (see Who’s the officer in charge? – NSW Fire and Rescue (September 3, 2013) and the comments attached to that post).

It is not clear why, if what is intended is an integrated station and if the CFA ‘is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner’ that the safety concerns wouldn’t be met by ensuring seven firefighters, regardless of their employment status.  That is cl cl 83.5 could say:

… the CFA will conduct an extensive range of preventative and preparedness programs and meet its duty of care by ensuring a minimum of seven firefighters to fireground incidents are dispatched before commencement of safe firefighting operations.

Clause 83.5 as currently drafted does appear to be inconsistent with s 6F of the CFA Act.

Clause 36.4

Clause 36.4 says:

All employees covered by this agreement shall only report to operational employees under this agreement or at the rank of DCO or CO when responding to fire alarms or incidents under this agreement except in the case where the incident is a level 3 multiagency incident or to a CFA/MFB incident controller at an incident.

The UFU is quoted as saying ‘volunteers acting as incident controllers would still have the capacity to give orders’ (‘Victoria’s CFA, union Enterprise Bargaining Agreement dispute explained’, ABC News (Online) 8 Jun 2016).  That is quite correct, but it does mean that a volunteer can’t act as crew leader, sector commander or some other position other than IC and exercise command responsibility over a paid firefighter, regardless of their relative experience and training.  Again this appears to be inconsistent with s 6F and the concept of an integrated service.

This position would also be contrary to the reasoning behind a recommendation of the 2009 Victorian Bushfires Royal Commission.  The Royal Commission recommended (Recommendation 18) that:

The Country Fire Authority and the Department of Sustainability and Environment amend their procedures to require that a suitably experienced, qualified and competent person be appointed as Incident Controller, regardless of the control agency for the fire.

Disputes over land tenure was not to influence who acted as IC.  Clause 36.4 still allows a volunteer member of the CFA to act as IC but as noted, not at lower levels of control.  It can be foreseen that an issue will arise at the next Royal Commission where ‘a suitably experienced, qualified and competent’ volunteer was unable to exercise fire ground decisions because he or she could not require less experienced but paid firefighters to report to him or her.

Clause 90.4

There are other clauses with respect to the implementation of decisions and the development of policy that are problematic.  For example, cl 90.4 says:

90.4. The parties acknowledge that the occupation of firefighting is an extremely hazardous and dangerous occupation where firefighters can be deployed into known and unknown hazardous situations to perform the rescue of life and protection of property.

In this context, the parties have prioritised the health and safety of the employee covered by this Agreement by agreeing on the following clause.

The CFA and UFU must agree on all aspects of the:

90.4.1. articles of clothing;

90.4.2. equipment, including personal protective equipment;

90.4.3. technology;

90.4.4. station wear; and

90.4.5. appliances;

to be used or worn by employees. ‘All aspects’ includes, without limitation, design and specifications. This applies to new and replacement items. ‘Appliances’ is defined as including any vehicle used by employees (including vessels and aerial vehicles) and any vehicle attachment such as a POD or trailer.

That clause is problematic for two reasons.  First the section requires that the CFA and the UFU ‘must agree’ on the issues listed.  The CFA, as an employer, has the primary duty to ensure the health and safety of its employed firefighters (Occupational Health and Safety Act 2004 (Vic) s 21).  The Occupational Health and Safety Act sets out detailed procedures to ensure that obligation is met and to provide for consultation between employees and employers (ss 35 and 36; see also s 43-94 on representation of employees and rights of relevant employee organisations).  Consult does not necessarily require ‘agreement’ (see Firefighters and the need to consult with landowners in WA (September 1, 2015); The role of volunteer associations in Victoria’s SES and CFA (March 2, 2016); and A Question on the ACT Emergency Services Authority Volunteer Charter (April 14, 2016)).  I don’t know what the terms of the current Enterprise Agreement say, or whether such clauses exist in other agreements, but a clause that requires employer and employee agreement is a much tougher test than a duty to consult but with final responsibility for any decision resting with the employer.

This clause might also complicate any OHS enforcement.  Under the OHS Act it is the duty of the employer to ‘so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health’ (s 21).   If, after consultation, the employer implements a policy or introduces technology that does not ensure safety then the employer can be compelled to rectify the work arrangements and may ultimately be prosecuted.  The final say, and final responsibility, lies with the employer.

What is ‘reasonably practical’ requires consideration of ‘the availability and suitability of ways to eliminate or reduce the hazard or risk’ (s 20).  If the CFA determines that there is some way to reduce a risk that is commercially available and suitable, but there is no agreement from the UFU then the measure is not ‘available’ to the CFA.  Under this clause an employer is constrained, even if there is a risk to health and safety the employer can’t take action to rectify it without ‘agreement’. Whether that would be a successful defence or not would remain to be seen but it would certainly complicate the issue.

Second this clause says ‘the parties have prioritised the health and safety of the employee covered by this Agreement…’  Because volunteers are not party to the agreement I would infer that this clause is intended to be read as “the parties have agreed to prioritise the health and safety of employees ahead of other concerns” not as “the parties have agreed to prioritise the health and safety of employees ahead of others, such as volunteers”, but it is ambiguous and the clause could well see health and safety for paid firefighters dealt with in a different way to volunteers.   Under this clause it could be the case that volunteers could be issued with clothing, equipment etc that the paid staff would not agree to.    Again if Victoria had adopted the Model Work Health and Safety Act 2011 that would be problematic, because any obligation owed to a ‘worker’ is owed whether that worker is paid or a volunteer.   In Victoria the Occupational Health and Safety Act deals with ‘employees’ and ‘employers’ so this clause may be allowed but it could lead to differential levels of uniform and equipment.

Other concerns and the Fair Work Commission

The CFA has other concerns regarding the position of volunteers – Country Fire Authority and United Firefighters’ Union of Australia Bargaining Dispute s.240 B2015/1496 and B2015/1498 15905955/1 CFA – Alternative Proposal to the Union Claim Version 17.2/1.0 Preserving the role of Volunteers.  In his non-binding recommendations Commissioner Roe said (at [7]):

I do consider it necessary to recommend changes to the Agreement to underline that the Agreement only applies to paid professional firefighters and does not apply to volunteer firefighters or affect their important role … The role of volunteers in fighting bushfires and maintaining community safety and delivering high quality services to the public in remote and regional areas and in integrated stations is not altered by this Agreement.

That the agreement only applies to paid professional firefighters is a limitation that the Fair Work Commission cannot avoid.   Enterprise Agreements are made between employees and employers, the Commission would not have jurisdiction to require an enterprise agreement to apply to volunteers but by consistently distinguishing between paid and volunteers firefighters (eg in cl 83.5, discussed above) it will, if adopted, create a two tier CFA in a way that is inconsistent with s 6F of the Act.

Second it is hard, if not impossible, to see how the role of volunteers will not be altered by the Agreement.  Whilst the CFA and volunteer firefighters are clearly pushing the issue and making their position clear and public, the UFU is relatively quiet. UFU officials have been quoted in the press (eg ‘Victoria’s CFA, union Enterprise Bargaining Agreement dispute explained’, ABC News (Online) 8 June 2016) but there is very little on the UFU website to refute the arguments that the proposed agreement does represent a radical change of the CFA and the role of volunteers.

Conclusion

In the absence of some detailed explanation from the UFU as to why this is not the case and how the agreement won’t alter the ‘role of volunteers in fighting bushfires and maintaining community safety’ then I have to agree with Rush QC’s opinion that:

The enterprise bargaining agreement, central to the sackings, is contrary to the CFA Act.
It provides unprecedented powers within the CFA to the United Firefighters Union.
The EBA undermines the role and independence of volunteers.
Those sacked or resigning had no choice but to oppose the EBA.


Categories: Researchers

NSW RFS volunteer acquitted of dangerous driving occasioning death and grievous bodily harm

16 June, 2016 - 09:53

I’ve previously reported on a NSW Rural Fire Service volunteer who was facing serious criminal charges following a fatal motor vehicle accident – see Rural Fire Service volunteer on trial for fatal collision (May 19, 2016).  9News Online is reporting that a jury has returned a verdict of ‘Not Guilty’ (see NSW firie not guilty over fatal smash, 16 June 2016).

Whilst this process must have been very hard for all concerned it is an example of the rule of law in action.  This was a tragic accident where one person died and one person was permanently and seriously injured.   Testing, in public, whether the conduct of the fire fighter was criminally culpable should help to reassure the community and the family of the loved one’s that the matter was investigated and properly dealt with, something that may not happen if decisions such a decision not to prosecute are made by the police or the Director of Public Prosecutions.  Where there is evidence to suggest a crime may have been committed the appropriate course is to put the matter before a jury and let the community’s representatives – the jury – determine whether conduct was ‘reasonable’ or caused the death and injury.  Because juries do not give reasons for their decision, however, we’ll not know what factors were considered important in their decision.


Categories: Researchers

Splitting from the CFA

13 June, 2016 - 20:45

These two related questions arise from the current dispute involving the Victorian CFA.  With the issue going to the heart of the CFA’s volunteer culture some fire fighters are talking of breaking away from the CFA.  One correspondent writes and says:

As part of a larger article in the papers today about the ongoing debacle with the CFA, there is the following, but what is the legalities of this? Could it work? What needs to happen?

VOLUNTEER firefighters in the state’s north east are planning to leave the CFA and reform as an independent fire service, as Federal Labor candidates face a backlash in marginal seats.

Firefighters in Molyullah, south of Wangaratta, have voted to explore options of leaving the CFA and reforming as an independent Bush Fire Brigade.

Another correspondent says;

This is very relevant at the moment, but in Victoria under the CFA act, are individuals registered with CFA to gain access to the powers that we have, or are the brigades registered and our powers flow from them? Interested as many of us would like to formally separate from the CFA to avoid conflict, without impeding our ability to look after our communities.

This is not the first time I’ve considered this question.  See

The main bar to separating from the CFA is s 26 of the Country Fire Authority Act 1958 (Vic) s 26, which says:

No association of persons shall operate as a fire brigade in the country area of Victoria unless it is first registered and its officers and members enrolled in accordance with this Act, and no persons so operating without such registration and enrolment shall have any powers or privileges or the benefit of any immunity conferred by this Act.

What is interesting is that there is nothing to say what is to happen if a brigade is established. There is not general penalty provision that says ‘Breach of a section where no penalty is provided carries a penalty of  $….’ and there is not specific penalty provided.  Compare s 26 to s 107A which says:

(1)     A person must not use any name, title or description to imply an association with the Authority, without the written authority of the Authority.

Penalty:     60 penalty units.

(2)     A person must not represent that the person is associated with the Authority unless such an association exists.

Penalty:     60 penalty units.

(3)     A person must not impersonate an officer of the Authority or a member or volunteer.

Penalty:     60 penalty units.

(4)     A person must not use any insignia described or set out in the regulations in any manner contrary to the manner set out in the regulations without the written authority of the Authority.

Penalty:     60 penalty units.

That there is a penalty for impersonating a member of the CFA is clear, but no penalty is provided for in s 26. The normal expectation with a rule that says ‘No one shall do x’ is that anyone doing x is required to stop doing it, but that’s not what s 26 says.  It says ‘No association of persons shall operate as a fire brigade …’ but then goes on to talk about what limitations there are on people so operating, they are not required to stop, they are not subject to any penalty rather they operate without ‘… any powers or privileges or the benefit of any immunity conferred by this Act’.   What I said in my earlier post (Self help firefighting in Victoria (August 30, 2014)) was:

There is no need for legal authority to fight a fire (Stephens v Stephens (1970) 92 WN(NSW) 810); if a fire starts on my property of course I can attempt to extinguish it and equally if my friends and neighbours want to join me, they can.   Not only is this consistent with resilience any law to the contrary would be impracticable and unenforceable.

So what the CFA Act says, in my view, both in s 26 and 107A, is that one must not operate a brigade or purport in any way to be associated with the CFA unless one is actually associated with the CFA.

Given the terms of s 26 I would anticipate that if there was an unregistered brigade, the CFA may be able to get an injunction from the Court requiring those operating the brigade to cease and desist but there is no actual offence committed.

With respect to the question from my second correspondent; as noted, any brigade that operates outside the CFA legislation would not enjoy any of the rights, privileges or immunities of the CFA.    They will have no special authority to take control of anyone at the scene of a fire, they will not have the support of the police, and in any event, the police are required to support the authority of the CFA (s 31) so one can see that as a source of potential conflict; they would have no power to set fires either as hazard reduction or back burning during fire ban periods; they would not be entitled to benefit under the fire fighters compensation schemes and finally they would not enjoy any particular exemption from liability (s 92).

If we look at the powers of a CFA member at the scene of a fire, we can see the power is actually vested in the Chief Officer – s 30 says:

Where the Chief Officer believes on reasonable grounds that there is danger of fire occurring or where a fire is burning or has recently been extinguished anywhere within the country area of Victoria the Chief Officer for the purpose of preventing the occurrence of a fire, of extinguishing or restricting the spread of the fire or of protecting life or property shall have and may exercise the following powers and authorities:

(b)  He shall have the control and direction of—

(i) any brigade or brigades present at the scene of the fire; and

(ii) any persons who voluntarily place their services at his disposal either individually or as members of any fire fighting organization (whether established by or for the purposes of a statutory authority or body corporate or not) whilst they remain present at the scene of the fire;

(c) He shall have authority either alone or with others under his command to enter upon any land house building or premises and if necessary to force open any outer or inner doors of any house or building which may be on fire or in the near neighbourhood of any fire for the purpose of taking any steps which he deems necessary for any of the purposes aforesaid, and he may take or give directions for taking any apparatus required to be used at a fire into through or upon any land house building or premises which he considers convenient for the purpose;

(ca) The Chief Officer may cause—

(i) any vessel, wharf, pier or jetty to be entered upon or into, if necessary with force; and

(ii) any necessary apparatus to be taken upon or into any vessel, wharf, pier or jetty;

(d) He may take any measures which in the circumstances are reasonable and which appear to him to be necessary or expedient for any of the purposes aforesaid and in particular he may cause any house building or structure to be entered into and taken possession of or pulled down or otherwise destroyed or removed, and any fences to be pulled down or otherwise destroyed or removed, and any undergrowth trees scrub grass stubble weeds or other vegetation to be burnt or otherwise destroyed or removed;

(e) He may cause water to be shut off from any main pipe channel or other works of water supply in order to obtain greater supply and pressure of water for the purpose of extinguishing the fire and he may enter or give directions for entering any land or premises and may take or cause to be taken water from any waterway, lake, lagoon, bore, dam, tank, main or pipe or other source of water supply whatsoever; and no person or body of persons having the management of any water supply shall be liable to any penalty or claim by reason of any interruption in the supply of water occasioned by any act matter or thing

(f) The Chief Officer may close any road or part of any road affected, or likely to be affected, by a fire or smoke from a fire and may direct traffic on any road in the vicinity of the closed road (or closed part of a road);

(g) If a person is interfering, by his or her presence or otherwise, with the operations of any brigade or group of brigades or is in or on any land, building or premises that is burning or threatened by fire, the Chief Officer may—

(i) order the person to withdraw and may include in the order a direction to immediately leave any area affected by the fire by the safest and shortest route; and

(ii) in the event that the person fails or refuses to withdraw—remove the person or direct a member of a fire brigade or a police officer present at the fire to remove the person;

(h) He may at any time pull down or shore up any wall or building damaged by fire that may be or may be likely to become dangerous to life or property;

(i)     The Chief Officer may take such other measures as appear necessary for the protection of life and property.

The Chief Officer isn’t at every fire and cannot really do all those things him or herself, so the Chief Officer can delegate and authorise ‘any person by name or to the holder of an office or position approved by the Authority’ the various powers that are granted to the Chief Officer.  Without seeing the delegation manual, I would assume there is a standing delegation to Brigade Captains, regional officers and the like to allow them to exercise the Chief Officer’s powers.

So members of the CFA have whatever power they have by virtue of the delegation from the Chief Officer.  It follows that if members were to resign from the CFA and ‘formally separate’ they would no longer be able to exercise any of the Chief Officer’s powers or any other authority that is found in the CFA Act.  That conclusion would be consistent with the clear words of s 107.

 


Categories: Researchers

Liability for advice on dangerous trees

13 June, 2016 - 12:16

A correspondent with NSW SES says:

I was out with the NSW SES during the recent storms. On two occasions residents had claimed they had asked the local Council for permission to remove a tree that had now damaged their property. In fact our neighbour has a “dangerous” tree (it has an increasing lean on it), they approached Council and they have refused to approve removal. I have three questions:

  1. Could the Council be in any way liable for damage caused by a tree they did not give permission to remove?
  2. Could an insurance company refuse liability in any way (eg known risk)?
  3. Could the SES (or an individual member) be liable if we said that we thought a tree was safe, but later this caused property damage or person injury? Remembering SES members are not trained arborists.
  1. Would the Council be in any way liable for damage caused by a tree they did not give permission to remove?

This question is reminiscent of the facts in Timbs v Shoalhaven City Council [2004] NSWCA 81.  In that case the council was liable.  The deceased had approached a council employee regarding permission to remove trees that he thought were dangerous. The council employee pointed out that there was a tree preservation order and the landowner would be prosecuted if he removed the trees. The advice was right in that there was a tree preservation order but wrong in that the owner was not advised that he had to apply for permission and if he did the trees would be inspected and if they were dangerous he could remove them. Rather the owner relied on the advice he was given during an onsite conversation, did nothing about the trees that subsequently fell and killed him. The council was liable for failing to advise the owner to make an application so that they could properly consider the request and consider whether the trees were dangerous.   By not giving correct advice or taking steps to inspect the trees the employee was negligent. If, however an application had been made, the trees had been competently inspected and a decision made, in good faith, not to allow the removal of the trees there would have been no liability even if the tree had fallen in the wind.  (See also An act of God? (January 12, 2016) and Liability for dangerous trees (April 28, 2015))

So the answer can be ‘yes, the Council can be liable’ but it depends on much more than we know from this story.  Was a formal application made?  Was it considered?  Were the steps taken to consider the application reasonable in all the circumstances?  Did the tree owner get their own inspection to confirm the state of the tree or just rely on council?  To many questions to give a specific answer. (And that is why this blog talks in general terms, but in an actual case, people need to go to a lawyer of their choice to consider all these sorts of questions and the particular facts).

  1. Could an insurance company refuse liability in any way (eg known risk)?

That would depend on the terms of any given policy.

  1. Would the SES (or an individual member) be liable if we said that we thought a tree was safe, but later this caused property damage or person injury? Remembering SES members are not trained arborists.

This is taken from the ‘headnote’ or summary of Timbs’ case:

1.The Council was not bound to express any opinion about whether the tree was dangerous. The Council, through its officer, took unto itself the responsibility of determining whether the tree was dangerous…

2. … the Council officer did not know that the tree on the Timbs’ property was dangerous when he made his inspections …

3. The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority. In this case, the Council held a significant and special measure of control over the safety of homeowners who brought to the Council’s attention their fears that overhanging trees were dangerous. This was particularly so, as the Council opted to advise the particular homeowner about whether the trees in question were dangerous…

5. When the Council officer took it upon himself to express a positive view as to the safety of the tree, he was representing a capacity to do so based upon his expertise and experience. In those circumstances, the requisite standard of care required of him was higher than that of a layman and, like a general practitioner, the sufficient level of expertise he professed to have, required him to make a reasonably informed diagnosis or to admit the need for referral to a specialist…

10. This decision does not mean that a Council officer, who is asked informally for advice or consent in relation to a potentially dangerous tree, is obliged to give expert advice. In the present case, the Council officer could have stated that it was open to the deceased to obtain his own advice and to make a formal application to remove the tree and also that if the tree was dangerous, it could be removed without Council consent. There would then be no breach of duty.

Substitute ‘SES’ for Council, and change the past tense to future tense, and you get

  1. The SES is not bound to express any opinion about whether a tree is dangerous. But the SES, through its officer, could take unto itself the responsibility of determining whether the tree was dangerous…
  2. … the SES officer may not know that the tree … [is] dangerous …
  3. The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority. In this case, the SES holds a significant and special measure of control over the safety of homeowners [because the SES can decide to take action to remove a threatening tree and, in any event, the SES should appreciate that a person who has brought to the SES’s attention their fears that overhanging trees are dangerous is asking the SES because they are on scene as the combat agency for responding to damage from storms and they’re being asked because they’ve responded to a call for help about a tree, they carry lots of kit that makes it look like they know about trees]. This is particularly so, if the SES opts to advise the particular homeowner about whether the trees in question were dangerous.
  4. When an SES officer takes it upon him or herself to express a positive view as to the safety of the tree, they are representing a capacity to do so based upon perceived expertise and experience. In those circumstances, the requisite standard of care required is higher than that of a layman and, like a general practitioner, the sufficient level of expertise he professed to have, required him to make a reasonably informed diagnosis or to admit the need for referral to a specialist…
  5. This does not mean that an SES officer, who is asked informally for advice in relation to a potentially dangerous tree, is obliged to give expert advice. In a similar case the SES officer could state that it was open to the deceased to obtain his own advice and to make a formal application to remove the tree. There would then be no breach of duty.

Conclusion for question 3

What follows is that it would seem to me that an SES member could put the SES into the same position as the Shoalhaven Council. If a person asks the SES ‘is that tree safe?’ and the member says ‘yes.  In those circumstances it may well be arguable that

  • the tree owner was vulnerable (if the tree is not safe, it’s going to hurt them);
  • they are looking to the SES for advice;
  • in circumstances where it can be anticipated that they are going to rely on that advice.

That could give rise to a ‘duty of care’ but the duty would be to answer the question honestly and reasonably – ie give reasonable advice.  Just as in Timbs a simple statement of ‘that tree is safe’ may be enough to stop the person taking further action and then suffering if the tree falls.  As my correspondent says ‘SES members are not trained arborists’ so any advice would have to be couched in those terms for example: ‘We’re not experts and we can’t say whether that tree is safe or dangerous.  You will need to contact your council or an arborist as soon as you can if you have any ongoing concerns’.

Do note that in that conclusion I haven’t addressed the multitude of defences that would be open including s 25 of the State Emergency Service Act 1989 (NSW) (‘A matter or thing done … 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 … subject the member, officer or volunteer personally to any action, liability, claim or demand’) and various issues under the Civil Liability Act 2002 (NSW).  The question of whether there is a) a duty of care and b) a breach of that duty can only be answered in a particular case based on the particular facts of that case.  The question I was asked was ‘Could the SES (or an individual member) be liable…’  In the right circumstances I can see an argument that the SES could be liable but that is not a complete answer and a complete answer is not possible in a blog like this.  Like the tree expert, if you want to know the answer in relation to a particular tree, at a particular house, independent advice is required that takes into account all the circumstances.

 

 


Categories: Researchers

Can you ask the patient to help complete the paperwork?

13 June, 2016 - 11:21

I don’t really understand this question, or more accurately, the thinking behind the advice.  This question comes from a St John volunteer; I don’t know from which state or territory but it doesn’t matter.

I’m a volunteer with St. John and I wondered, from a legal perspective, is it ok if when I treat a patient I get them to write their own personal details on the casualty report form?  I have been told we can’t get the patient to fill in their details.

As I said I don’t understand the thinking behind this at all so I got back to my correspondent and asked if the person who had given that advice had given any reason – the response was ‘the only reasoning is because it’s a legal document’.

It is a ‘legal document’ means, in my view, that it is, in law, a document – and nothing more.  All documents are ‘legal documents’ in the right context.   Patient care records are written for a number of reasons – see First aid patient records – who and what are they for? (January 31, 2015), the law is only one and in most, if not all cases, the least important.  For whatever purposes the records are put, it is most important that they are accurate.  Asking the patient to complete the personal details, name, address, date of birth, phone number etc surely means it’s more likely to be accurate.  No risk of mishearing what they said or misspelling something.

I can imagine there can be clinical issues. If the person needs to cooperate with the first aider giving treatment or is distracted or affected by their injury, illness, drugs or alcohol you may not want to ask them to also fill in a form, but if we assume that none of that applies, I can see no objection from a legal point of view of asking ‘them to write their own personal details on the casualty report form’.   I just can’t imagine what the person who gave that advice was thinking or why they think there’s some problem.


Categories: Researchers

Responding ‘the closest fastest most appropriate resource’ NSW Fire and Rescue

13 June, 2016 - 11:07

This issue is becoming a theme –

This time the question relates to NSW Fire and Rescue.

The retained fire station that I belong to is around 12 to 15 mins away from a permanent station. The permanent fire fighters are expected to turn out within 3 mins; the retained (part-time) firefighters are given a 7 min turnout time which our brigade meets, give or take 2 mins here and there.

Recently we have been told that there are massive budget cuts to NSW Fire and Rescue.  As a result, the area management want to make it that the permanent firefighters respond to any single pump response and the retained firefighters won’t be activated even if the call is within the retained brigade’s area; so, for example, if there is a car fire in our area where the permanent brigade is roughly 12 to 15 mins away, they will be sent and the retained firefighters won’t be sent.  We are also told that the service won’t be calling in the permanents bravo pump, which is staffed by retained firefighters, to cover the area the permanent brigade is responsible for which is meant to provide 24-hour fire coverage.

Is there any legal obligation that the service is breaking to save money and not call the closest brigade?  Are they ignoring a legal obligation to provide a 24 hour permanently staffed station when the permanent crew are out by not calling in retained firefighters to stand by?  If a job was to happen in front of the permanent’s station and they didn’t have a truck there within 3 mins and someone died as a result of the slower response because it was chasing a fire call out of area when the closer retained station could of done it and they want to save money and not page the retained fire fighters to stand by are they being negligent? And how could we go about getting this issue fixed if it comes in?

Discussion

Response times

First let’s clarify the issue of times.  Chances are the fire call is not to a location directly outside the fire station, so let’s assume it’s a further 5 minutes from the retained fire station.  If the permanent brigade takes 3 minutes to get out the door and then have to travel 12-15 minutes to drive past the retained station on the way to the fire, then a further 5 minutes from there means that the time from receiving the call to getting to the fire will be 20-23 minutes.  The retained brigade will take 7 minutes +/- 2 to get out the door and then 5 minutes to the scene so that will see them there in 10 to 14 minutes.    If the call is actually 5 minutes the other way, so it’s between the permanent station and the retained station, then the permanent fire fighters don’t have to travel the 12-15 minutes to the retained station and then keep going. In that case the permanent brigade would have 3 minutes to get out the door then 7 to 10 minutes to the fire ie 10-13 minutes in total.  The retained brigade would still have 7 minutes +/- 2 to get out the door and then 5 minutes to the scene so that will see them there in 10 to 14 minutes.  Where the fire is really does matter!

Some law

The Fire Brigades Act 1989 (NSW) s 6 provides that ‘It is the duty of the Commissioner to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district’ (emphasis added).   Fires outside a ‘fire district’ are the responsibility of the Rural Fire Service (Rural Fires Act 1989 (NSW) s 6). Providing fire services within the fire district is the responsibility of the Commissioner and to meet these obligations, the Commissioner may:

(a) … establish permanent fire brigades and form or assist in the formation of volunteer fire brigades, and

(b) provide permanent and volunteer fire brigades with suitable premises and requisite equipment, and

(c) maintain permanent fire brigades, and

(d) pay subsidies to volunteer fire brigades and make payments to the members of volunteer fire brigades.

A fire district is not further divided into areas for permanent brigades and retained or volunteer brigades. It is up to the Commissioner to decide which brigade is called to any particular fire.

As you would expect, there is little direction given to the Commissioner on how to perform the functions imposed by s 6.  The Parliament creates the structure and gives the necessary powers to the Commissioner but it is then up to the Commissioner, responsible to the Minister and the Government of the day, to decide how best to meet those obligations.  The courts can intervene if an interested party seeks an order to require the Commissioner to perform the statutory obligations, but this brings us back to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223).  Within a broad discretion the Commissioner is left to make decisions and a court won’t intervene unless the decision ‘‘… is so unreasonable that no reasonable authority could ever have come to it…”.   Are the decisions described by my correspondent so unreasonable that no fire agency could sensibly make the same sort of decision?  I doubt it.

First, and no doubt I’m making many assumptions here, but as I understand it retained firefighters are paid a small retainer but then an hourly rate, and for not less than 4 hours, if they are actually called.  If that’s correct one can see that it costs to call out the retained firefighters and pay them for 4 hours when you are already paying the permanent firefighters and they are being paid whether they are fighting a fire or working at their station.   So there is a budget issue and like it or not, the Commissioner does have to manage the budget.  Second as noted above, it really does matter where the fire is – so at least sometimes the response times may not be very different.

Let us assume, for the sake of the argument, that a person calls triple zero for fire brigade assistance and there is a delay because the permanent brigade, rather than the retained brigade is dispatched.    Let us also assume that the person can establish that NSW Fire and Rescue owed them a legal duty to respond promptly a proposition which, I might add, is NOT the law (see Liability for fire – a review of earlier posts (January 8, 2016)) but which I will assume here just so I can move onto other issues.   The plaintiff would then have to prove that there was negligence, that is that the action taken was not that which a reasonable person would have taken.

In deciding whether there is negligence by an authority like NSW Fire and Rescue, the court has to consider (Civil Liability Act 2002 (NSW) s 42):

(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,

(b) the general allocation of those resources by the authority is not open to challenge,

(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate)…

So the fact that the Commissioner has budget constraints is a real issue.  How to allocate the resources that the Commissioner has – and those resources are the brigades, permanent and volunteer, as well as the money allocated by the Government – is a matter for the Commissioner.  A plaintiff can’t argue, and a court can’t rule, that the Commissioner should have allocated the budget in a different way.  And the budget has to cover all the functions of the service – fighting fires, hazmat response, rescue response, supporting other agencies, public education, training, administration etc etc etc.   An argument that ‘if you had responded retained fire fighters to my fire at my address on this date I would not have suffered a loss’ is just not tenable (and remember that’s assuming there is an obligation to send anyone at all).

The questions

Let me now return to my correspondent’s questions:

Is there any legal obligation that the service is breaking to save money and not call the closest brigade? 

No.

Are they ignoring a legal obligation to provide a 24 hour permanently staffed station when the permanent crew are out by not calling in retained firefighters to stand by? 

No; There is no legal obligation to provide a 24 hour permanently staffed station.  Stations are often unattended because firefighters are out doing their job but the station is still ‘staffed’; they’re just out doing their job.  If further fire fighters are needed they can be brought in from other stations, retained fire fighters called up or off duty fire fighters recalled to work – Fire Brigades Regulation 2014 (NSW) r  27.  It’s a matter for the Commissioner to determine whether fire fighters should be called up ‘just in case’ or only when the next fire call is received.

If a job was to happen in front of the permanent’s station and they didn’t have a truck there within 3 mins and someone died as a result of the slower response because it was chasing a fire call out of area when the closer retained station could of done it and they want to save money and not page the retained fire fighters to stand by are they being negligent?

No; there’s no guarantee that a fire station will have fire fighters there all the time.  Whether the brigade is at a fire 20 minutes away or just around the corner, if there is an accident in front of the fire station the people are still going to have to wait for a response.

And how could we go about getting this issue fixed if it comes in?

The fire service is a part of government, and so the issue of how its run and how the government allocates the budget between the fire service, the health services, education, policing, local government, national parks, roads and transport and all the other myriad of things that governments do is a matter for the government.  Influencing the government is a matter of politics.  If you think the fire service doesn’t get enough budget, or that the Commissioner is making poor decisions, then the answer is in politics.  Raise your concerns with the management, join the union, lobby your local MP, get active in the community (remembering that ‘A firefighter must not comment publicly on the administration of Fire and Rescue NSW, except with the approval of the Commissioner’ Fire Brigades Regulation 2014 (NSW) r 23) or run for elected office.   But the law of negligence is not going to help.  The law says these sorts of decisions are matters for the Commissioner and there’s no legal obligation to have fire fighters on a station at all times, or to have a 3-minute response time, or to call the closest retained brigade in preference to a permanent brigade that’s already on station and ready to turn out.


Categories: Researchers

Responding ‘the closest fastest most appropriate resource’ rural/bush fire brigade

12 June, 2016 - 18:17

This question comes from a volunteer fire fighter.  I won’t mention the jurisdiction as it doesn’t affect the answer.   My correspondent is with:

… a small rural fire brigade located approximately 15 minutes from the nearest town, and a lot of the time our pagers are not activated for emergency calls in our area and the next brigade is 15-20 minutes away. Our district has guidelines set out for certain calls for example a structure fire in our village would be cause for the activation of us and another brigade (local Brigade plus back up) but the local Brigade is often overlooked. Would this have any legal implications if someone was injured or killed because the nearest unit wasn’t activated? Who would be held accountable? The duty officer? The officer in charge of the other unit responding for not ensuring the local brigade was notified?

My question comes because we had a fire call 3 minutes from our station, we didn’t know about it until a few days later when local farmer asked us why the local brigade didn’t show up and why they had to wait 20 minutes instead of 8 minutes.

In many recent posts I’ve discussed the decision in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223).   That case said that where a person comes to court and asks for an order saying that whatever a government department is doing, nor not doing, the court won’t intervene unless the decision ‘‘… is so unreasonable that no reasonable authority could ever have come to it…”.  So in this context, the fire service has to make decisions about who gets called and when.  One would assume that they will call the ‘fastest closest most appropriate resource’ (to borrow a phrase from an earlier correspondent – Responding ‘the closest fastest most appropriate resource’ in South Australia (June 6, 2016)) but there may be reasons for not doing that.  Provided those reasons are not ‘so unreasonable that no reasonable authority could ever have come to…’ the same decision then the service will still being complying with its obligations.

So the critical issue is why is this particular brigade not activated?  Is it that the pagers are in a dead spot so the calls aren’t received?  Are there too few members or they don’t have appropriate training and qualifications?  If the answer to those questions or ones like it are ‘yes’ then that may be OK.  Or are they not activated because a more senior officer has decided that he or she doesn’t like the captain? Or thinks the brigade is made of trouble makers? Or somehow their details have just not been entered into some CAD system so the ComCen don’t know to call them?    Those decisions could not be ‘Wednesbury’ reasonable or worse, they are no decision at all.   A person who lived in the community or otherwise had sufficient interest in the matter could for example, seek a review of a decision (if there was such a decision) to not activate the brigade.

The ‘Wednesbury’ test is a test of administrative law but it has also been included into torts law so today, if someone want to sue a government agency for damages based on how they have attempted to do what the statute (Act) says they are to do, they also have to prove ‘unreasonableness’ (See for example Civil Liability Act 2002 (NSW) s 43; Wrongs Act 1958 (Vic) s 84).   That means if someone has suffered a loss because of the delay in sending the further brigade, and not dispatching the local brigade, and the decision not to activate the local brigade was ‘so unreasonable that no reasonable authority could ever have come to…’ the same decision then that would be one step in allowing that person to establish a claim in damages.

They would still need to prove that the brigade owed a duty of care which is not easy – see Liability for fire – a review of earlier posts (January 8, 2016).  But a judge would, I suggest, be attracted to find a way to find a duty if he or she thinks the actions of the service cannot be justified.  For example, in Kent v Griffiths [2001] QB 36, an English court had to decide whether London Ambulance owed a duty of care to a person who had rung 999.  The ambulance service wanted to rely on the English cases that said that a fire brigade would not owe a duty in those circumstances (Capital and Counties v Hampshire Council [1997] QB 2004).  A critical issue was whether the ambulance service should be equated with a ‘health service’ or an ‘emergency service’.   Regardless of the merits of the arguments, I have no doubt that the judge found it easier to find in favour of the patient, and against the ambulance service, when he found (2001] QB 36, [5]):

… that there had been contemporary falsification of the records by the member of the ambulance crew. He [the judge] considered that he [the paramedic] had not been given any satisfactory explanation for the ambulance taking 34 minutes to travel 6.5 miles from its base to the claimant’s home. The judge was satisfied that the crew member had “withheld the true reason, whatever it might have been, why it took so long for the ambulance to reach the claimant’s house”. The crew member “knew full well just how critical was going to be the record which he made” of the time of arrival. In the absence of any reasonable excuse for the delay, the judge was “driven to conclude that the delay was culpable”.

The relevance of that is that the bulk of the common law says that a fire brigade does not owe a duty of care to those that call for their assistance, but a judge may well find a way to distinguish that if the judge thinks, in an example like I’m given, that the fire service was delayed for improper reasons (“we don’t call that brigade because I don’t like them”) or ‘culpable’ reasons (“We don’t call that brigade because we forgot they exist”).

Who would be held accountable? The duty officer? The officer in charge of the other unit responding for not ensuring the local brigade was notified?

Everyone is accountable for their own decisions.  Accountable means that a person might be held to account –ie to explain why they did what they did. The duty officer would be accountable if the reason the local brigade was not called was because he or she elected not to call them.  They may have a perfectly good reason; they may not.   As for the ‘officer in charge of the other unit responding for not ensuring the local brigade was notified’ I find it hard to believe that would be an issue.  I assume that the officer in charge of a responding brigade has enough on his or her plate without being expected to question ComCen as to whether or not they have activated another brigade – but that’s really a matter for those in the relevant service to consider.  Is it ‘normal’ for a responding captain to ask ComCen have they activated a closer brigade?  If it is then the responding captain would also be accountable for his or her decisions or actions – that is he or she might be asked to explain what was done, or not done, and why.

If by accountable you mean liable to pay damages, the answer is it will be the relevant state or local government authority that operates the service (depending on the jurisdiction).   If you mean ‘ultimately responsible for the decision’ then it is the relevant Chief Officer/Commissioner.

 


Categories: Researchers

The value of file notes

10 June, 2016 - 13:26

This question is phrased as a question on industrial law, rather than emergency law but the issues have wider implications including for emergency workers.

I have always been of the understanding that if a person is subject to, say, unacceptable behaviour from someone such as their manager, they should keep file notes/diary entries of ongoing occurrences of this behaviour so that a pattern can be established. However I was recently informed that such notes can only be used if the person who was having notes written about them was actually informed that these notes were being written. In other words, if a person isn’t told diary entries are being made detailing their unacceptable behaviour, then any notes substantiating this behaviour won’t be referred to in any subsequent unacceptable behaviour investigation. It should be noted the person making this assertion to me said it related to Commonwealth law, but not specifically which law!

This doesn’t seem right to me as I have often advised staff to keep such contemporaneous notes. Can you please advise if diary notes can be used in a case of harassment / unacceptable behaviour if the perpetrator was not informed the notes were being taken.

I can’t address the industrial law issues and perhaps there is some rule in industrial law or in some Commonwealth tribunal that says the notes can’t be used.   Speaking more generally, about the use of personal notes, they are not ‘evidence’ and can’t be put into evidence to prove that what is recorded is true, because that is called ‘hearsay’.  My definition of ‘hearsay’ is ‘an out of court statement admitted for the truth’.   A diary is an out of court statement, that is it was written ‘out of court’ so if you want to put the diary before a court to say ‘look it must be true it’s in my diary’ then that is an example of prohibited hearsay evidence.  So what use are file notes?  The text below is taken from my book Emergency Law (2013, 4th ed, Federation Press) p 18:

The other use of records is an aide-memoir or a tool to assist the person who wrote the record to refresh their memory should they be called into court to give evidence. In some cases where it is clear that the record maker has no recollection of the event, but did make a record at the time, the record may be given in evidence. One can imagine, for example, a fire officer who is called to give evidence in relation to a small fire and who is asked to remember some detail that happened three years previously, after the officer has attended many more fires. The officer may have a vague memory or no memory at all, of the particular fire. The officer may be able to use any record made at the time of the incident to refresh his or her memory about the matter.  To return to Lithgow Council v Jackson, discussed above, even if the patient record could not be used to prove how the injuries occurred, it could have been used by the paramedics, if they had been called to give evidence, to ‘jog their memory’ about the case and that may have allowed them to give more accurate evidence about what they saw and observed.

A record used as an aide-memoir does not have to be a “business record” but simply a record made at the time when the events where fresh in the person’s memory. Accordingly even a private notebook or diary entry can be used in this way.  This is relevant for people who may provide emergency assistance but not in the course of business. It would be prudent practice, after the event, for anyone who provided assistance at an accident to make a record of what happened, what they saw, heard and did so that the record can be used to refresh their memory at a later date.

In a book that has just published, Stuart Ellis and Kent MacCarter (eds) Incident Management in Australasia: Lessons Learnt from Emergency Responses (CSIRO Publishing, 2016) Euan Ferguson reflects on his experience as Chief Officer of the South Australian Country Fire Service during the 2005 Wangarry bushfires.  One of his lessons (p 9) is:

Write things down.  Much of my evidence at the Wangarry Coronial was based on detailed notes I took in the period leading up to and during the fire.  Because of these notes, there was a story to tell.  It was a story that was evidenced in my own hand and one that I was able to repeatedly and consistently return to.

Conclusion

Readers, and my correspondent, will note that I have not in fact answered or even attempted to answer the specific question as it relates to industrial law but whether or not the notes can be formally admitted into evidence, whether it’s an industrial matter or a coroner’s inquest into a fire or death, contemporaneous notes, that is notes written at the time of or soon after the event have a vital role to play in helping a person remember what happened and the details.   They help a person tell their story.


Categories: Researchers