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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: 15 hours 29 min ago

Commonwealth Bill to amend laws in response to CFA enterprise agreement

22 August, 2016 - 15:49

The Prime Minister, Malcolm Turnbull, and the Minister for Employment, Senator Michaelia Cash, have today publicly released the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016.   According to press release documents, the bill, if passed into law, will ‘nullify enterprise agreements that watered down the capacity of state emergency service organisations to manage their volunteers’ (‘Turnbull Government to overhaul employment laws for emergency services volunteers’, news.com.au, 22 August 2016) and will ‘will ensure emergency services volunteers are protected from union influence’ (‘Malcolm Turnbull introduces new laws to ‘protect’ CFA volunteers from fire fighters’ union’, ABC News (Online), 22 August 2016).

But what does the Bill actually say?  The text of the Bill can be found on the website of the Department of Employment.

The Bill will introduce a new concept that of an ‘objectionable emergency management term’.  A term of an enterprise agreement will be an ‘objectionable emergency management term’ if the employer is

… a designated emergency management body and the term has, or is likely to have, the effect of:

(a)          restricting or limiting the body’s ability to do any of the following:

(i)            engage or deploy its volunteers;

(ii)           provide support or equipment to those volunteers;

(iii)          manage its relationship with, or work with, any recognised emergency management body in relation to those volunteers;

(iv)         otherwise manage its operations in relation to those volunteers; or

(b)          requiring the body to consult, or reach agreement with, any other person or body before taking any action for the purposes of doing anything mentioned in subparagraph (a)(i), (ii), (iii) or (iv); or

(c)           restricting or limiting the body’s ability to recognise, value, respect or promote the contribution of its volunteers to the well being and safety of the community; or

(d)          requiring or permitting the body to act other than in accordance with a law of a State or Territory, so far as the law confers or imposes on the body a power, function or duty that affects or could affect its volunteers.

Some other definitions.  First:

A body is a designated emergency management body if:

(a)         either:

(i)            the body is, or is a part of, a fire fighting body or a State Emergency Service of a State or Territory (however described); or

(ii)           the body is a recognised emergency management body that is prescribed by the regulations for the purposes of this subparagraph; and

(b)          the body is, or is a part of a body that is, established for a public purpose by or under a law of the Commonwealth, a State or a Territory.

Second:

A person is a volunteer of a designated emergency management body if:

(a)          the person engages in activities with the body on a voluntary basis (whether or not the person directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity); and

(b)          the person is a member of, or has a member‑like association with, the body.

Discussion

Definitions

The first point that I note is that a ‘designated emergency management body’ must be ‘established for a public purpose by or under a law of the Commonwealth, a State or a Territory’ so non-statutory organisations such as the Volunteer Rescue Association, Surf Life Saving Australia, St John Ambulance Australia, Australian Red Cross, Salvation Army Emergency Services and the like will not, where they have both employees and volunteers, be affected by these changes.

The definition of ‘volunteer’ is non-controversial.  The requirement that the volunteer must be ‘a member of, or has a member like association with, the body’ means that the use of casual volunteers in an emergency will not somehow invalidate an enterprise agreement.

Ensure emergency services volunteers are protected from union influence

The Bill says nothing about unions!  It talks about terms of an enterprise agreement but not about a union. The terms that might be included may be something that the paid staff, or even the paid staff and volunteers, are happy with but they are not permitted.  The terms may be negotiated without the involvement of a union but they are not permitted.  This Bill is not about protecting an agency from undue influence from a union such as the United Firefighters Union, rather it is protecting the agency from the influence of the paid staff, whether unionised or not.

That the CFA is ‘first and foremost’ a volunteer organisation may be enshrined in legislation (Country Fire Authority Act 1958 (Vic) s 6F) but that is not true for other agencies that are likely to be ‘designated emergency management bodies’.  For example the Ambulance Service of NSW uses volunteers as ‘honorary ambulance officers’ (Health Services Act 1997 (NSW) s 67H) but those members are a very small part of the total ambulance workforce.  These provisions will still have impact on the sort of clauses that can go into an enterprise agreement involving NSW Ambulance as an employer.

Application to the CFA EB

The introduction of this Bill represents the Prime Minister fulfilling an election commitment.  The issue arose as there were (and remain) controversial negotiations between the CFA and its paid staff represented by the UFU.  I have previously commented on the draft EB – see:

What difference will this Bill make to the proposed agreement?  First whether any of the terms of the EB have the effect of restricting or limiting the CFA’s ability to ‘engage or deploy its volunteers; provide support or equipment to those volunteers; manage its relationship with, or work with, any recognised emergency management body in relation to those volunteers; [or] otherwise manage its operations in relation to those volunteers’ would be a matter of debate.  Some would say it does; others would say it doesn’t.  By enshrining these provisions into law it will allow a legal tribunal, whether Fair Work Australia, the Federal Court of the Supreme Court of Victoria to be the final arbiter of such matters.

The prohibition on any term that has the effect of ‘requiring the body to consult, or reach agreement with, any other person or body before taking any action for the purposes of doing anything mentioned in subparagraph (a)(i), (ii), (iii) or (iv)’ is intended to invalidate clause 83.4 (formerly 90.4). That clause says the CFA

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

83.4.1 articles of clothing;

83.4.2 equipment, including personal protective equipment;

83.4.3 technology;

83.4.4 station wear; and

83.4.5 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.

At least to the extent that volunteers and paid staff are issued with and use the same equipment. It is unlikely that the CFA will have appliances for use by volunteers and other appliances for use by paid staff.  Requiring UFU agreement on ‘appliances’ would impact upon the agencies ability to provide equipment to its volunteers and would therefore be an ‘objectionable emergency management term’.

Clause 43.2.7 (formerly 83.5) says that the CFA will meet its duty of care to its employees by ‘ensuring a minimum of seven professional firefighters to fireground incidents are dispatched before commencement of safe firefighting operations’.   It would suggest that clause is intended to be invalidated by these amendments but I’m not sure they would be.  That clause doesn’t say the CFA can’t also send volunteers. Further:

To avoid doubt, in accordance with current procedure, after undertaking a risk assessment/sizeup upon arrival at the fire/incident, the first arriving Incident Controller on scene can determine the number of appliances and crews required for the fire/incident and can notify oncoming appliances and crews that they are not required to attend.

It follows that if there are sufficient firefighters on scene, both paid and volunteer, the IC can ‘call off’ the other professional firefighters that are on the way (ie dispatched, but not yet on scene).

Clause 16.3 says

The CFA shall have a career firefighter in each catchment (or broader area where agreed), reporting to the Commander of the catchment, to assist the Commander in providing volunteer support. The parties agree to consult through the CFA UFU Consultative Committee in relation to the role of such positions.

That may be objectionable as it is not clear why a ‘career firefighter’ is involved in ‘volunteer support’ (ie support to volunteers) or support to career staff by volunteers.  Either way, that would appear to impact upon the CFA’s ability to ‘manage its relationship with’ its volunteers.

When I originally commented on the EB, clause 36.4 said “All employees covered by this agreement shall only report to operational employees” (level 3 multiagency incidents or volunteer CFA incident controller excepted).  The current version of the agreement no longer has that clause.  Clause 36.4 is now about ‘conduct resolution’ and ‘unfair dismissal’ and the reference to reporting only to ‘operational employees’ does not appear in some new position in the EB.

State law trumps Commonwealth law

An interesting amendment is the clause that says an EB is invalid if it has the effect of

… requiring or permitting the body to act other than in accordance with a law of a State or Territory, so far as the law confers or imposes on the body a power, function or duty that affects or could affect its volunteers.

The normal rule is that if there is an inconsistency between a valid Commonwealth law and valid state law then the Commonwealth law prevails (Australian Constitution, s 109).  This clause reverses that by saying if there is a state law (and one can infer this is aimed at ss 6F-6I of the Country Fire Authority Act) then that prevails over an enterprise agreement made pursuant to a federal law (ie the Fair Work Act 2009 (Cth).

Given that the legislation creating every emergency service ‘imposes on the body a power, function or duty that affects or could affect its volunteers’ that is an extremely broad clause.

Volunteer representation

The Bill, if it becomes law, will allow volunteer organisations like the VFBV to make submissions to the Fair Work Commission on matters under Part 2-4 (Enterprise Bargains) and part 2-5 (Workplace Determinations).  In short volunteers will be entitled to be heard if they think a proposed enterprise bargain ‘affects, or could affect, the volunteers of a designated emergency management body’.

Is it a good thing?

I make no comment on whether or not the changes proposed by the Bill will advance or hinder the work of the CFA.   It does appear it will fundamentally change the relationship between emergency services agencies and their volunteers regardless of whether those volunteers are the only emergency responders (as with say NSW RFS), are meant to work in a fully integrated way with paid staff (as in the CFA) or are a very small component of the workforce (as with NSW Ambulance).

Volunteers who work with, but are not part of employed organisations, such as volunteers with Bush fire Brigades in Western Australia (Bush Fires Act 1954 (WA) s 41) and Queensland (Fire and Emergency Services Act 1990 (Qld) ss 8A and 79; see also Status of Queensland Rural Fire Brigades (September 10, 2014)) may find the proposed changes have little effect.

The biggest issue I foresee will be for agencies that have a few volunteers.  These organisations may find the relationships with employees more complicated or may find that they can use the presence of some volunteers within their ranks as a way to weaken the bargaining power of the employees even if employees form the bulk of the workforce.

Disclaimer

As always, the opinions expressed here are my own.  I have not checked them with anyone or tried to tailor them to suit one view over another.  In the name of transparency I should disclose that “I’m a union man”.  I’ve always been a member of the relevant trade union that covered my workplace and I am a current financial member of the NTEU (National Tertiary Education Union).  I know of no formal link between the NTEU and the UFU but I suppose they are both members of the ACTU and probably both provide financial support to the Labor Party.    On the other hand, I am also a member of the NSW SESVA.   Again I don’t know of any links between the VA and the VFBV.


Categories: Researchers

Further prosecution over fatal RFS accident (Part 2)

21 August, 2016 - 20:17

This came as a comment/question on my original post (Further prosecution over fatal RFS accident (August 17, 2016)) but I thought to do the answer justice it needed a post on its own.

A question: It is stated several times that Mr Mihailidis was the only car approaching in a 110kph zone on a three lane Hwy, should he have not been “keeping left” and travelling in Lane 1??? If so was he charged with that as it was a significant contributing factor to him crashing into the RFS Vehicle?

This is my understanding of what happened, remembering of course that the only information I have is the judgement of His Honour Judge Berman (references in [square brackets] are to the numbered paragraphs in the judgment).

What did the judge make of the manoeuvres by Mr Mihailidis?    At [45] the judge said:

The accused should have foreseen that one entirely logical response to a vehicle entering from a driver’s right, apparently taking a path from right to left in front of him or her, is to steer to the right and pass behind the apparent path of the other vehicle. At the very least the accused should have foreseen that Mr Mihailidis might have been unaware that he intended to turn into Lane 3 and so he should have foreseen, as a reasonable and prudent driver would, that there was a risk that the oncoming driver would, wrongly, perceive that the RFS tanker was going to cross his path and so would steer his vehicle to the right in an attempt to pass behind the apparent path of the other vehicle.

To put that in other words – Mr Mihailidis did not know what the RFS driver intended to do.  Mr Wells knew he intended to do a U-Turn but Mr Mihailidis only knew the vehicle was entering his direction of traffic even when he had attempted to warn the driver by flashing his high-beam lights.  If Mr Mihailidis did ‘wrongly, perceive that the RFS tanker was going to cross his path’ then it was reasonable for him to then return to lane 3 in order to pass behind the appliance that had entered the road in front of him.

Mr Wells knew what he intended to do, namely enter lane 3 and travel north, but a reasonable and prudent driver would foresee that this intention was not at all obvious to the driver of a vehicle approaching at or about 110 kph. Mr Wells knew what he was planning to do, but he should have foreseen that an approaching driver would not share that knowledge ([45]).

So was Mr Mihailidis charged?  We have no idea, he may have received a traffic infringement notice but most likely police would think that given he was seriously injured and his wife was killed, a traffic ticket was not warranted.

With respect to the RFS appliance the question of whether or not Mr Mihailidis was obeying all the traffic rules is not the point.  The question is whether he was guilty of an offence.  This is a question with a binary answer – that is the accused is either ‘guilty’ or ‘not guilty’.    The answer to that depends on whether or not the Crown has proved all the elements of the offence ‘beyond reasonable doubt’.  That other people contributed to the accident (as must be the case in every motor vehicle accident) doesn’t answer that question.

An issue that I think really affected the outcome was that there was no emergency.  This was not a case where a crew were responding to a triple zero call that turned out to be a false alarm.  That could not be relevant because a crew in those circumstances don’t know that, in fact, there is no emergency. In this case the driver knew that he was returning to the scene of the original chemical spill to collect his crew and perhaps help with final clean up.  At that point he knew that there was no on-going emergency and therefore no need to insist on right-of-way from Mr Mihailidis or to seek an exemption from the Road Rules.   The judge noted (at [12]) ‘As the accused told police in his interview … it was easier for him to keep the momentum going rather than stop and go back into first gear.’  There was no reason to make the u-turn in front of oncoming traffic other than it was easier than coming to a complete stop.

In the circumstances we might have expected different reactions from Mr Mihailidis.  Seeing a fire appliance with red/blue flashing lights he might have slowed or tried to stop.  If he’d staying in Lane 3 Mr Wells may never have attempted the maneuver but when Mr Mihailidis flashed his high beam and moved over Mr Wells took that to mean Mr Mihailidis was indicating it was safe for him to do so, but it was equally foreseeable that Mr Mihailidis was trying to warn of oncoming danger (see [45]).  It may also be that Mr Mihailidis was committing offences of failing to keep left (Road Rules 2014 (NSW) r 130 ‘Keeping to the left on a multi-lane road’) and failing to give way to an emergency vehicle (Road Rules 2014 (NSW) rr 78 and 79.  Even though, at the time the appliance was not an emergency vehicle as it was not being used by a member of the RFS ‘providing transport in the course of an emergency’, Mr Mihailidis didn’t know that – he just saw an appliance with red/blue lights operating and Mr Wells was entitled to assume that Mr Mihailidis would attempt to give way ([42]).    But none of that determined the outcome of this case. As the judge said ([47]):

A reasonable and prudent driver would not have entered lane 3 of the northbound carriageway of the F3, where the speed limit is 110 kph, at night, in a slow moving vehicle, while he or she could see a car approaching in lane 2. By doing what he did he created a risk which was real, obvious and serious. The accused did not exercise that degree of care which the ordinary prudent driver would exercise in the circumstances I have outlined above.

That’s not to say that if there had been a real emergency the outcome would have been different, even when responding to an emergency a driver has to take reasonable care to avoid a collision because no emergency warrants taking the life of another driver.  But when considering all the circumstances the urgent nature of the call may influence the judge.  In this case, however, the judge did not say that the absence of an emergency was  a factor in his determination of what a ‘reasonable driver’ would do.  He said no reasonable driver would ‘have entered lane 3 of the northbound carriageway of the F3, where the speed limit is 110 kph, at night, in a slow moving vehicle, while he or she could see a car approaching in lane 2’ regardless of the circumstances.

Sentence

The next stage of the proceedings is sentence.   That is a different matter. Then the court can take into account all relevant factors including the ‘degree’ of negligence and the ability others may have had to avoid the accident to determine the driver’s degree of culpability.  The current maximum penalty for negligent driving causing death is 30 penalty units (ie a fine of $3300) or imprisonment for 18 months or both (Road Transport Act 2013 (NSW) s 117) but those penalties are the maximum.  The court can impose a penalty ranging from finding the offender guilty but imposing no penalty (Crimes (Sentencing Procedure) Act 1999 (NSW) s 10) through to the maximum permissible penalty.    As the issue of sentence is still before the court I won’t comment further on that matter.

 

 

 

 

 

 

 

 

 


Categories: Researchers

Further prosecution over fatal RFS accident

17 August, 2016 - 22:44

I have previously reported on the trial of an RFS volunteer who was charged following a fatal traffic accident – see:

As noted in my post of June 16, a jury acquitted the driver of charges of dangerous driving occasioning death and grievous bodily harm.   Even so the matter has returned to court.   In a comment on my original post I was asked:

The officer may have been found “Not guilty” by a jury but the Daily Telegraph reports that he is to be “dragged back to court” by Crown prosecutors. Here is the link to the DT story:

http://www.dailytelegraph.com.au/newslocal/central-coast/acquitted-firefighter-ian-wells-to-be-dragged-back-to-court-over-fatal-freeway-crash/news-story/a5d1b81ff493aabc9fb7bcd42d461eea

If he is not guilty, what else could be going on?

I replied as follows:

I can think of three things that might be happening. Either

  1. the Crown has lodged an appeal and the matter has to go back for some procedural ruling (because it’s way too soon for it to be actually heard) but I doubt that;
  2. it’s going back to court for some argument about costs eg there may have been an application that the Crown should pay the defendant’s costs and they haven’t agreed to that and that might be consistent with the description of being ‘dragged back’ to court; or
  3. (and i would think this is most likely) there are some ‘backup’ charges that still have to be dealt with. When the Crown charge a person with a serious indictable offence that has to go before a jury they may also file some lower order charges ‘just in case’ – in this case perhaps ‘negligent driving’ or ‘fail to make a u-turn with safety’. In this case if he was charged with negligent driving causing death and GBH the jury’s verdict may be in effect that the negligence didn’t cause the accident but that doesn’t mean, so the Crown might argue, that the driving wasn’t negligent so they may want to still run that case before a Magistrate.

I can now report on what has happened.  The Central Coast Gosford Express Advocate is reporting that the driver has now been ‘found guilty of negligent driving occasioning death and making a U-turn without giving way’ (Richard Noone, ‘RFS volunteer guilty of negligent driving occasioning death over freeway crash’ Central Coast Gosford Express Advocate (Online) August 17, 2016). The difference between a jury trial and a judge alone trial, is a judge must give reasons for the decision and that is the case here; R v Wells [2016] NSWDC 169 (17 August 2016).

First, as I suggested, the judge was ‘dealing with 2 back-up charges, an offence of negligent driving occasioning the death of Mrs Mihailidis and an offence of making a U turn without giving way to a vehicle’ ([2]).  The judge in this case had been the judge at the jury trial so he was able to determine the matter based on that evidence that had been given at trial and some further written material ([4]).

The facts, as described by the judge, were that the accused had been asked to respond to a HAZMAT incident on the F3 Freeway.  Whilst there the accused and another firefighter were asked to respond to a motor vehicle accident also on the Freeway.  They completed their tasks at that accident and were asked to return to the original incident.   To return t, the driver had to head south before completing a u-turn to head north to the original incident.  According to the judge (at [8]-[13]):

… He decided that he would perform a U-turn through that gap in the median divide. There was a sign at the U-Turn bay which said “no U-turn” but a supplementary sign positioned underneath said “Police, RTA, NRMA and emergency vehicles excepted”.

There was no other traffic heading south, so the accused was able to begin his U-turn by moving to the left of the south bound carriageway before turning the steering wheel to the right. He activated the red and blue flashing lights on the top of the tanker and applied full right lock to the steering wheel. He was in second gear.

There was some north bound traffic which had gone past the U-turn bay, but a Toyota Corolla driven by Mr Peter Mihailidis, with his wife Katina Mihailidis in the passenger seat, had not. It was approaching the U-turn bay from the south (and thus heading north). It was visible to the accused and would have taken about 11 seconds to pass him. It was initially in lane 3 and it was Mr Wells’ intention to also turn into lane 3, the lane nearest the centre of the roadway.

When the Corolla driven by Mr Mihailidis was about 350 metres south of the U-Turn bay he flashed the car’s high beam headlights. At about the same time the Corolla moved from lane 3 to lane 2, the centre of the northbound lanes. Both Mr Barwick and the accused noticed this and interpreted this as an indication from the driver of the approaching vehicle that he or she was aware of the presence of the RFS vehicle and, in effect, indicating to the driver of that vehicle that he could complete his U-turn – and that he, the driver of the approaching vehicle, would give way.

As I mentioned before the RFS tanker was heavy and slow to accelerate. It had remained in second gear as it went through the U-Turn bay at walking pace. As the accused told police in his interview with them conducted early the following morning, it was easier for him to keep the momentum going rather than stop and go back into first gear. As the tanker moved into lane 3 of the northbound carriageway the Corolla also moved back into lane 3. The accused saw this manoeuvre in his rear view mirrors and so steered the tanker left, intending to get out of the way of the Corolla. He had partly entered lane 2 at the time the Corolla collided with the rear left hand side of the fire tanker. The tanker was moving slowly at the time of the collision, its speed being in the order of 10-15kph.

After the collision the accused drove the tanker into the break down lane. The Corolla was left stationary in lane 3. Its electrical system was damaged to the extent that none of its lights operated. It was completely unlit. Mrs Mihailidis, whilst perhaps injured in the collision, was alive. She opened the passenger door and released her seat belt. She was in the process of getting out of the car when she was struck by a third vehicle, this a Mazda driven by Ms Nicole Burton who was also travelling northbound. She was driving the Mazda in lane 3 and had been for some time. Her lights were on low-beam and as she approached the scene she looked towards the flashing lights of the RFS tanker to her left. She did not see the stationary Corolla until it was too late to avoid colliding with it. It was the collision between the Corolla and the Mazda which caused Mrs Mihailidis’ death.

The judge then turned to the issue of negligent driving. Negligence is conduct falling below the standard to be expected of the reasonable person. Any falling short is sufficient for civil liability.  For criminal law:

‘… the Crown [must] prove negligence of such a high standard that criminal punishment is appropriate. Negligent conduct penalised by the criminal law must evidence such a marked departure from the standard of care that the reasonable person would have exercised, that it merits criminal punishment’ ([33]).

The difference between negligent driving, dangerous driving and manslaughter are the degrees of negligence.  The more gross or serious the negligence, the more serious the offence.  In this case the driver had been acquitted of the more serious charge of ‘dangerous driving’ but was there sufficient negligence for the charge of negligent driving?

The judge found that there was criminal negligence for the following reasons ([45]-[50]):

  • The accused should have foreseen that northbound vehicles approaching him would be travelling at or about that speed limit of 110kph. A reasonable and prudent driver would foresee that.
  • The accused must have also understood, as would a reasonable and prudent driver, that when he turned his vehicle and entered lane 3 northbound there was going to be an enormous speed differential between Mr Mihailidis’ approaching Corolla and the RFS tanker, even if that tanker accelerated as fast as it was able. When the collision occurred the tanker was only doing about 10-15kph and was only 8 metres past the U-turn bay.
  • The accused should have also foreseen that drivers do not always act as anticipated and that even drivers with perfect vision can be startled by unexpected events. In this regard, the accused well knew that it was night time with no lighting in the area. These matters would also be foreseen by a reasonable and prudent driver.
  • The accused believed … that when Mr Mihailidis flashed his lights and moved into lane 2 he was in effect saying“I acknowledge your presence on the roadway and it is safe for you to enter the northbound carriageway”. If he were a reasonable and prudent driver, the accused would have foreseen that it was entirely possible that Mr Mihailidis flashed his lights as a warning and moved into lane 2 at the same time to avoid the danger which he could see approaching from his right.
  • … [the accused] knew what he intended to do, namely enter lane 3 and travel north, but a reasonable and prudent driver would foresee that this intention was not at all obvious to the driver of a vehicle approaching at or about 110 kph. Mr Wells knew what he was planning to do, but he should have foreseen that an approaching driver would not share that knowledge.
  • Even assuming that the driver of an approaching vehicle could work out that the emergency vehicle was in the process of performing a U-turn, [the accused] … should have foreseen, because a reasonable and prudent driver would, that given that Mr Mihailidis’ car was the only vehicle approaching, it would not be unreasonable for the driver of a car approaching an emergency vehicle to expect the driver of the emergency vehicle to stop and wait the 11 seconds it would take to allow the approaching car to pass, before entering the northbound carriageway, and that the driver of the approaching car may be startled when that did not occur.
  • In the particular circumstances of this evening, especially where Mr Mihailidis was the only vehicle approaching, and could have been forgiven for thinking that the emergency vehicle he could see ahead would not enter the carriageway until after he had gone past it, the sudden and unexpected emergence of a threat which appeared to him to be entering on his right and moving towards his left could have led to him making the decision to respond to this emerging threat by veering behind the apparent path of the emergency vehicle. This is especially the case if, as I have found it foreseeable that it was, the flashing of the lights coinciding with the move from lane 3 to lane 2 was a warning to alert the driver of the RFS tanker that a car was approaching at high speed, rather than an invitation to proceed as the accused interpreted it.
  • It was foreseeable to the accused that the driver of the sole vehicle approaching might have responded to the RFS tanker entering the northbound carriageway in unexpected ways, including by doing exactly what Mr Mihailidis did…

The accused was negligent in that he failed to take what is the obvious decision when the driver of a heavy vehicle intends to enter the carriageway of a high speed expressway while a vehicle is approaching – wait the 11 seconds or so necessary to allow that vehicle to go past before entering the carriageway.

By failing to do that, by entering the carriageway while the Corolla was approaching, the accused’s manner of driving was such a serious departure from the standard of care that a reasonable driver would have exercised that it merits criminal punishment. A reasonable and prudent driver would not have entered lane 3 of the northbound carriageway of the F3, where the speed limit is 110 kph, at night, in a slow moving vehicle, while he or she could see a car approaching in lane 2. By doing what he did he created a risk which was real, obvious and serious. The accused did not exercise that degree of care which the ordinary prudent driver would exercise in the circumstances I have outlined above.

[The accused] didn’t want to lose momentum and have to change down to first gear. [The accused] didn’t want to stop. It was negligent of the accused to fail to do so.

Thus I am satisfied beyond reasonable doubt that the accused was driving negligently.

Finding there was negligence was the first step.  The next question was ‘did that negligence cause the victim’s death?’ given that she was killed when a third vehicle collided with her stationary car.  The court found that it was the RFS driver’s negligence that caused the initial accident and it was that accident that left the car Mrs Mihailidis had been travelling in without power and therefore without lights.  An oncoming driver would see the fire appliance that was then in the breakdown lane, with red/blue flashing lights, but not see the unlit stationary car still on the roadway.  The judge said (at [59]) ‘Looking at the facts of this case in a common sense way, the Crown has satisfied me beyond reasonable doubt that the cause of Mrs Mihailidis’ death was the manner in which the accused drove the RFS tanker that night’.

As the judge was satisfied that the accused’s conduct was negligent to the standard required of the criminal law, and was as a matter of fact the cause of Mrs Mihailidis’ death, it followed that the Crown had proved its case ‘beyond reasonable doubt’ and that in the judge’s opinion, the accused was guilty of the offence charged.

The accused was also charged with an offence of failing to give way when making a u-turn.  He relied on the exemption for emergency vehicles ie rule 306 of the Australian Road Rules.  The judge rejected this.  First he would have found, if he had to, that at the time of the accident the RFS appliance was not an ‘emergency vehicle’. As has been noted on this blog, an emergency vehicle (in NSW) is a vehicle driven by an emergency worker in the course of providing transport in the course of an emergency.

Whilst the initial response may have been a response to an emergency, at the time of the accident the accused was returning to pick up the crew members rather than to attend to any urgent duty or need.   The judge said:

No evidence before me pointed to any urgent need for the accused to return to the weighbridge. The accused knew the situation at the weighbridge when he left and he told the police in his interview that he had to return there to tidy up and pick up the crew. I repeat, if necessary I would have found beyond reasonable doubt that the accused was not driving an emergency vehicle when he performed the U-turn.

In short the driver was not driving an ‘emergency vehicle’ because there was no emergency.  In any event, the conclusion of whether or not there was an emergency and therefore an ‘emergency vehicle’ was not essential to the judge’s decision.

Rule 306 only applies if the driver is taking ‘reasonable care’.   As the judge said (at [63]) ‘As I have concluded above, the accused’s manner of driving was negligent. It follows that he was not taking reasonable care. In the course of submissions Mr Higgins [Counsel for the accused] conceded that he could not contemplate a situation where a driver found to be driving negligently could be found to have been taking reasonable care’.   Given the finding of negligence, that is a driving without reasonable care, the accused could not rely on r 306 and was convicted of the u-turn offence.

As noted in the newspaper article, the accused remains to be sentenced and that has been set down for September 16.  Unless he chooses to appeal any aspect of this decision, or the sentence, that will be the end of the legal process.

Another similar event

Related to this post is the news that in South Australia, a paramedic has now been charged following a fatal accident when the patient being transported by ambulance was killed – see ‘Ambulance driver reported for causing death by dangerous driving after crash near AdelaideABC News (Online) 16 August 2016.   These stories confirm my view that if emergency service workers are concerned about legal liability or repercussions of their work, the biggest legal risk comes with driving the vehicle.


Categories: Researchers

Changes to Victoria’s OHS regulations and ’emergency service employees’

17 August, 2016 - 11:46

Victoria has not joined the other states in implementing the model Work Health and Safety Act.  In Victoria the relevant Act is the Occupational Health and Safety Act 2004 (Vic).  Regulations made under that Act, in particular the Occupational Health and Safety Regulations 2007 (Vic) make special provisions for emergency service employees.  The current regulation (r 1.1.5) defines an ‘emergency service’ as:

(a)          the Country Fire Authority; or

(b)          the Metropolitan Fire and Emergency Services Board; or

(c)           the Metropolitan Ambulance Service; or

(d)          Rural Ambulance Victoria; or

(e)          the Victoria State Emergency Service Authority; or

(f)           Victoria Police;

An “emergency service employee” is (emphasis added):

(a)          an officer or member of a metropolitan fire brigade; or

(b)          an officer or member of an urban fire brigade or rural fire brigade within the meaning of the Country Fire Authority Act 1958 ; or

(c)           an employee of the Metropolitan Ambulance Service; or

(d)          an employee of Rural Ambulance Victoria; or

(e)          a member of the Victoria State Emergency Service; or

(f)           an officer or other member of Victoria Police—

but does not include a volunteer;

An employer must, among other things,

  • ensure that ‘a fixed or portable ladder used … to control the risk of a fall — (a) is fit for the purpose; and (b) is appropriate for the duration of the task; and (c) is set up in a correct manner’ (r 3.3.5);
  • If the employer uses ‘administrative control … to control the risk of a fall, the employer must, before the task is undertaken, record— (a) a description of the administrative control used; and (b) a description of the task to which the administrative control relates’ (r 3.3.6); and
  • ‘ensure that any plant used to control a risk of a fall is— (a) designed and constructed for the task or range of tasks to be undertaken; and (b) designed and constructed in such a way as to enable its safe use in the physical surroundings in which it is to be used and the conditions during which it is to be used’ (r 3.3.7).

Where the employee is an emergency service employee, these obligations are modified. The employers obligation is not to ‘ensure’ those things, but to ensure ‘so far as is reasonably practicable’ that those things are done (r 3.3.2).   This provision must be intended to allow flexibility even if it does reduce the standard of care owed to emergency service employees. It does mean that an emergency service employee could use plant or a ladder in a way that is not intended by the manufacturer if that adaptation will assist in the rescue or provision of other emergency services.

When it comes to working in a confined space there are a number of obligations upon an employer (see Part 3.4).  The principal obligation is to ‘identify all hazards to health or safety associated with work in a confined space’ (r 3.4.6) and to ‘ensure that any risk associated with work in a confined space is eliminated so far as is reasonably practicable’ (r 3.4.7).  Further an ‘employer must ensure that an employee does not enter a confined space unless the employer has issued a confined space entry permit …’ (r 3.4.14).  None of these obligations apply where the relevant employee is an emergency service employee undertaking a rescue from or providing first aid in a confined space (r 3.4.1).

A correspondent from Victoria has written regarding proposed amendments to the regulations. I am told that there is a proposal to amend the definition of emergency service employee.  I’m told that the draft regulations will say (emphasis added):

Emergency service employee means any of the following, other than a volunteer

(a) an officer or member of a metropolitan fire brigade; or

(b) an officer or member of an urban fire brigade or rural fire brigade within the meaning of the Country Fire Authority Act 1958; or

(c) an employee of Ambulance Service—Victoria; or

(d) a member of the Victoria State Emergency Service; or

(e) a police officer;

My correspondent says:

Reading the draft regulations with a few other volunteer firefighters has raised a couple of questions. I am hoping that you may be able to enlighten me on them.

  1. Do these two definitions effectively mean the same thing and the draft regulations are just worded more explicitly?
  2. CFA have no exemptions from the regulations regarding prevention of falls or confined space when it is a volunteer member performing the rescue or emergency action. Example: A volunteer would be required to be issued with a Confined Space Entry Permit prior to being able to carry out a rescue from a confined space.
  3. As volunteers are not “employees”, the regulations do not apply. However section 23 of the OHS Act would apply that the employer is to ensure so far as reasonably practicable that persons other than employees are not exposed to risks to their health or safety.

Answers

As the table below shows, the definitions are the same.

Current regulation Proposed regulation “emergency service employee” means— Emergency service employee means any of the following, other than a volunteer—— (a)          an officer or member of a metropolitan fire brigade; or (a) an officer or member of a metropolitan fire brigade; or (b)          an officer or member of an urban fire brigade or rural fire brigade within the meaning of the Country Fire Authority Act 1958 ; or (b) an officer or member of an urban fire brigade or rural fire brigade within the meaning of the Country Fire Authority Act 1958; or (c)           an employee of the Metropolitan Ambulance Service; or (c) an employee of Ambulance Service—Victoria (d)          an employee of Rural Ambulance Victoria; or (c) an employee of Ambulance Service—Victoria (e)          a member of the Victoria State Emergency Service; or (d) a member of the Victoria State Emergency Service; or (f)           an officer or other member of Victoria Police— (e) a police officer;

  but does not include a volunteer;

The only substantive change is to delete the reference to the Metropolitan Ambulance Service and Rural Ambulance Victoria and replace those references with a reference to Ambulance Service—Victoria.   Neither definition includes a volunteer member of any of the emergency services.

So the answer to question 1 is ‘the definitions mean the same thing’.

Questions 2 and 3 can be merged.  If Victoria had adopted the National Work Health and Safety Scheme the person conducting a business or undertaking (a PCBU) would owe a duty to all workers, which would include volunteers.  The Victorian Act refers to employers and employees and that is reflected in the specific clause that says volunteers are not emergency service employees.

It follows that the exemptions provided for in regulations 3.3.2 and 3.4.1 are relevant where the emergency service personnel are volunteers, not employees.  But as my correspondent has noted, none of the obligations in the regulations apply in that case – a volunteer is not an employee so the obligations upon an employer, vis-à-vis its employees do not apply.

Again, as my correspondent has noted, the Occupational Health and Safety Act 2004 (Vic) s 23 says:

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.

‘Persons other than employees’ would include volunteers.  Although the regulations don’t strictly apply, the most obvious way to ‘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’ would be by complying with the regulations.  So if an employer wouldn’t send an employee into a confined space without various risk mitigations measures, they also shouldn’t send a volunteer.   If, on the other hand, you’re an emergency service employer and you want to send a rescuer into a confined space without adequate breathing or rescue facilities, send an employee not a volunteer!

Victoria v NSW

Compare the Victorian provision (above) with the law in NSW.  The Work Health and Safety Regulation 2011 (NSW) defines an emergency service worker as:

… an officer, employee or member of any of the following:

(a) the Ambulance Service of NSW,

(b) Fire and Rescue NSW,

(c) the NSW Rural Fire Service,

(d) the NSW Police Force,

(e) the State Emergency Service,

(f) the NSW Volunteer Rescue Association Inc,

(g) the New South Wales Mines Rescue Brigade established under the Coal Industry Act 2001,

(h) an accredited rescue unit within the meaning of the State Emergency and Rescue Management Act 1989.

The reference to a ‘member’ will include a volunteer.

There are exemptions when it comes to confined spaces.    Regulations 67 and 68 do not apply ‘to the entry into a confined space by an emergency service worker if … the worker is: (a) rescuing a person from the space, or (b) providing first aid to a person in the space’ (r 63)   Regulation 67 deals with a ‘Confined space entry permit’ and regulation 68 deals with warning signs with respect to a confined space.  So an emergency worker doesn’t need a permit or to put up a sign, but the emergency service organisation still needs to ‘manage … risks to health and safety associated with a confined space … including risks associated with entering, working in, on or in the vicinity of the confined space …’ (r 66) and must provide ‘a system of work that includes: (a) continuous communication with the worker from outside the space, and (b) monitoring of conditions within the space by a standby person who is in the vicinity of the space and, if practicable, observing the work being carried out’ (r 69).

Victoria, on the other hand, exempts the employer from every obligation with respect to confined spaces including:

3.4.6. Hazard identification

3.4.7. Control of risk

3.4.8. Isolation of plant and services

3.4.9. Atmosphere

3.4.10. Fire or explosion

3.4.11. Flammable gases or vapours

3.4.12. Signs

3.4.13. Review of risk control measures

3.4.14. Confined space entry permit

3.4.15. Employer to retain entry permits

3.4.16. Communication and initiation of emergency procedures

3.4.17. Procedures to indicate entry into confined space

3.4.18. Procedures to ensure exit from confined space

3.4.19. Record of exit from confined space

3.4.20. Emergency procedures

3.4.21. Emergency procedures—personal protective equipment

3.4.22. Emergency procedures—entry and exit for rescue

3.4.23. Emergency procedures—maintenance of plant

3.4.24. Information, instruction and training.

That is what the regulations say.  Why any employer would want to send an employee into a confined space without first identifying, and then ‘so far as is reasonably practicable’ eliminating those risks is beyond me but I’ll leave it for others to consider whether having reduced OHS obligations for emergency service employees is sensible or reasonable.

Conclusion

The proposed changes to the definition of emergency service worker are not significant, they simply update the reference to Ambulance Victoria instead of referring to the Metropolitan Ambulance Service and Rural Ambulance Victoria.  Neither the current or proposed definition includes volunteers.

The emergency services have a duty to take care to protect volunteers from risks to their health and safety by virtue of the Occupational Health and Safety Act 2004 (Vic) s 23.  The specific obligations set out in the Occupational Health and Safety Regulations 2007 (Vic) regulations 3.3.5, 3.3.6 and 3.3.7 (with respect to fall prevention) and Part 3.4 (with respect to confined spaces) don’t apply where the responders are volunteers as volunteers are not employees. The obligations are modified, or don’t apply to employees, but virtue of specific rules in regulations 3.3.2 and 3.4.1.  Even so the general duty imposed on any employer, ie the duty 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’ (Occupational Health and Safety Act 2004 (Vic) s 21) will continue to apply.

 


Categories: Researchers

NSW Ambulance and secondary employment

6 August, 2016 - 18:38

A NSW Ambulance paramedic has written a book related to health care. They have been told that:

…  if I want to use the term Paramedic I have to put in an application for secondary employment. I can’t see how this applies and if I put it in and they say no I am screwed. They could not tell me the legal footing; any advice would be greatly appreciated.

Other employment

The requirement to obtain approval for secondary employment is set out in the Health Services Regulation 2013 (NSW).  Regulation 21(1) says:

A member of staff must not, except with the written permission of the chief executive, engage in any employment (whether or not for remuneration) otherwise than in connection with his or her employment as a member of staff of the Ambulance Service.

What is meant by ‘employment’ is not defined, but assistance can be found elsewhere.  Fair Work Australia give guidance on what it is to be an employee, different types of employment and minimum employment standards. They say (at https://www.fairwork.gov.au/employee-entitlements):

There are rules about what employees get at work, such as what hours they work and how often they have to have a break. These rules can be set out in different places such as an award, registered agreement or an employment contract.

An employee’s minimum entitlements are set out in the National Employment Standards (NES) and awards. A registered agreement or employment contract can provide for other entitlements but they can’t be less than what’s in the NES or the award that applies.it is defined elsewhere.

The classic tests to determine whether someone is an employee were identified by McHugh J in Hollis v Vabu (2001) 207 CLR 21, [68] as:

(1) the employer’s power of selection of his or her worker, (2) the payment of wages or other remuneration, (3) the employer’s right to control the method of doing the work, and (4) the employer’s right of suspension or dismissal

(See also Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161, [64]-[69] (Kirby J)).

It’s hard to see, therefore, how a person could ‘engage in any employment’ that is ‘not for remuneration’ ie getting paid is a critical indication that a person is engaged in ‘employment’.   If a person is not getting paid they may be a volunteer, or engaged in a hobby, but they are not ‘employed’ and therefore not engaged ‘in any employment’.   It can’t be assumed that a paramedic needs approval if they want to volunteer at the school canteen or at their child’s soccer club during their days off, or if they themselves want to play sport or volunteer for a community organisation or even work around the house.

One can imagine that having a contract with a publisher could be an employment contract if the author was being paid to write (not just on completion of the manuscript) and the employer was determining the hours of work, the place of work etc.  Simply writing a book and then looking for a publisher or acting as a self-publisher is not, however, the same as being an employee or ‘engaged in employment’.    Even having a contract to write a book is not the same as being engaged in employment.  If I agree to provide a manuscript by a particular date and in return the publisher agrees to pay a fixed fee that would not make me an employee.    To be paid for writing a book is also not the same as being employed.  One might ‘sell’ the rights to the book, but selling what you own is not the same as being employed.  And one might receive ongoing royalties but again that is not employment, the payment is not the form of a salary or wage and the other indicia of employment discussed above and in the cases, are not met.

Even self-employment is a problem in this context.  A paramedic may also be a licensed plumber.  If he or she is helping a friend fix a tap, or even fixing a tap at home, they are not engaged in ‘employment’. One might describe them as acting as a ‘self-employee’ if they are advertising their services and providing plumbing services for a fee but again a crucial issue is that they are getting ‘remuneration’.  Further the point of finding out whether a person is an employee, or a self-employed independent contractor, is because a person has a different relationship between an employee and an independent contractor (see again Hollis v Vabu (2001) 207 CLR 21; Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 and also Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16).  The very point is that a person working for themselves is not engaged in ‘employment’.   If I was drafting the regulation, and wanted to cover ‘self-employment’ I would have said something like

A member of staff must not, except with the written permission of the chief executive, engage in any employment or practice any trade or profession for fee or reward …

But that’s not what it says.

It follows that exactly what r 21(1) is meant to apply to is unclear given that it is a legal rule, using a legal concept (‘employment’) but excludes one of the essential features of employment, ie remuneration.

The use of the term ‘paramedic’

Assuming that a person is a paramedic, and they have written a book, can they put ‘paramedic’ on the cover notes?    In New South Wales it is now an offence for anyone other than a paramedic to use that title – Health Services Act 1997 (NSW) s 67ZDA(1).    Relevantly, a paramedic is now (Health Services Act 1997 (NSW) s 67ZDA(2) and Health Services Regulation 2013 (NSW) r 19A):

(a) a person who holds the following qualifications

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

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

(b) … or

(c) a member of staff of the Ambulance Service of NSW, or other person, who is authorised by the Health Secretary to hold himself or herself out to be a paramedic.

If my correspondent holds a relevant degree or diploma of course they can call themselves a paramedic, because they are, in fact and in law, a ‘paramedic’. If they don’t hold a relevant degree or diploma, so their only right to use the title ‘paramedic’ comes because they are a ‘member of staff of the Ambulance Service of NSW … authorised by the Health Secretary to hold himself or herself out to be a paramedic’ then the Health Secretary could put limits on that authority and could direct that they cannot use the title in the blurb on their book.

Conclusion

Whether my correspondent is a or is not a ‘paramedic’ depends entirely on whether or not they meet the criteria set out in the Health Services Act and its regulations.   If they hold the prescribed qualifications, they are a paramedic and don’t need anyone’s permission to use that title on their book.

If their right to use the title ‘paramedic’ comes from their position as ‘member of staff of the Ambulance Service of NSW … authorised by the Health Secretary to hold himself or herself out to be a paramedic’ then the Health Secretary could impose some limits such as, they may only use their title in relation to their employment with the Ambulance Service of NSW.  In the absence of such condition, they could use the title on their book but it may be problematic if, after the book is published, their authority is withdrawn or they leave the employment of the Ambulance Service.

I can’t see how the ‘secondary employment’ provisions are relevant.  Without knowing the arrangements between my correspondent and any publisher, I can’t see how writing a book is, in the absence of a specific employment contract, to be engaged in ‘any employment’.

 


Categories: Researchers

Releasing submissions to a public inquiry

23 July, 2016 - 19:15

This question relates to a review of the South Australian Emergency services legislation.  My correspondent writes:

In July 2014 the South Australian Government announced a reform to the emergency services. In August 2014 the South Australian Fire and Emergency Commission took submissions on proposed structures and opinions on the Sector Reform and had contacted writers of submissions to seek approval to make publicly available published pieces, therefore does SAFECOM have a responsibility to ensure every submission is publicly available if they have requested it to be made available to the public?

The South Australian government did commission a review of the emergency services legislation (Hon. Paul Holloway BSc, BEc, BE (Hons), Review of the Fire and Emergency Services Act 2005 Pursuant to Section 149 of the Fire and Emergency Services Act (August 2013).   Following that the Minister called for emergency services sector reform (see SAFECOM, Emergency Services Sector Reform.  This lead to a further discussion paper – A SAFER Community: Discussion paper (September 2014).  That paper concluded wth this invitation:

The Honourable Tony Piccolo MP, Minister for Emergency Services would welcome your comments on the discussion paper, in particular on the proposed structure outlined in figure 3.

Comments, in writing, were required by 5pm Friday, 24 October 2014.

SAFECOM has published some of the received submissions (see Emergency Services Reform Submissions).  That page says:

Below are the submissions to the discussion paper, A SAFER Community, released in September 2014.

Authors of the submissions have been contacted and their identifying details removed (if they have requested it).  Not all authors wished to have their submission provided publicly.

My correspondent’s question implies that some people were contacted and indicated that they wanted their submission to be provided publicly, but those submissions have not been released.  Is there any legal obligation to put those submissions on this paper?

Discussion

I can’t think of any particular obligation.  The inquiry was not conducted under any particular legislation.  Governments are entitled to make enquiries into issues where they need information – they don’t need particular legislative authority to do so if all they are doing is calling for submissions.

I can see nothing in the Freedom of Information Act 1991 (SA) or the Constitution Act 1934 (SA) that would require the release of all submissions and I can imagine that a government would want to withhold submissions that were regarded as defamatory or offensive.

But there is an issue here.  If a government only releases some submissions then the community could be misled.  If for example the government only released submissions that supported a particular view they may claim, and others may believe, that there were no alternative views.  Not only would that be misleading it would be poor governance.

I anticipate that if a report was released that did for example claim that 100% of submissions supported proposition ‘A’ and the government simply hid alternative submissions, that a person could seek judicial review to have the report set aside.  Further the political implications would be disastrous.

The area of law we are talking about here is administrative law – not what I would call ‘emergency services’ law – so it’s not an area that I am completely over, so if other lawyers out there have an alternative view I’d be pleased to hear it. But my initial view is that there is no obligation ‘to ensure every submission is publicly available’.   I can see that there is a responsibility to do so and certainly if some have been omitted just by accident or oversight – but a legal obligation is harder to find.

 


Categories: Researchers

Liability of volunteer members of a Victorian community resilience committee

23 July, 2016 - 15:29

A member of a local community resilience committee in Victoria writes:

I am one of a number of community members of a community resilience committee (CRC) established by the local council in conjunction with Emergency Management Victoria.  8 community members were appointed to the CRC and we are awaiting confirmation that the appointments were formally approved by council.

As the activities of the CRC have increased with the recovery & reconstruction programs now underway, we have looked critically at our legal status as volunteers, and the potential personal liability issues associated with our participation.

We see the principal role of the community members is informing, identifying, providing local knowledge and feedback etc, rather than approving/executing projects or committing expenditure; but the CRC’s purpose includes supporting principles of accountability and good governance, with specific responsibility to “ensure actions are flexible and responsive to emerging community needs…”.  While the risk of direct legal action may be low, there may be disaffected property owners who react hostilely to decisions and/or restrictions imposed by council or other agencies on re-building and other measures, and the role or advocacy of community members of the CRC may be called into question. We don’t put it too highly, but small, relatively isolated communities can have very strong and divergent views, especially where self-interest and personal property assets are in play…

We have noted the volunteer provisions of the Victorian Wrongs Act, and specifically section 37.  We have also been advised (informally at this stage) that we are covered by the volunteer emergency worker provisions of the Emergency Management Act.

I appreciate that you do not offer or provide legal advice but would appreciate any comments you have on the respective merits of immunity under the EMA and what seems to be the more expansive protection of the Wrongs Act, and how this might be formally confirmed.

The creation of community resilience committees was a recommendation of the Review of the 2010–11 Flood Warnings & Response (2011).  The flood review recommended (recommendation 93; emphasis added) that:

… the state comprehensively pursue the objective of achieving (where possible) the priority outcomes of the National Strategy for Disaster Resilience and the imperative of shared responsibility, in particular by:

  • requiring that local knowledge is considered as a critical component of all phases of emergency management
  • involving local communities in the development and ownership of community resilience plans based on an ‘all hazards’ approach and tailored for the specific needs of each community
  • encouraging local communities to form resilience committees to develop and administer community resilience plans
  • nominating Victoria Police as the lead agency in initiating the strategy to develop community resilience committees; and
  • requiring emergency service agencies to consult and engage with local community resilience committees in the preparation, planning, response and recovery phases of emergency management.

The development of community resilience committees appears to be part of the Community Resilience Framework identified by Emergency Management Victoria.    Two of the objectives of the Victorian Strategic Framework to Strengthen Victoria’s Social Cohesion and the Resilience of its Communities (2015) are:

  1.  Empower communities … to build community resilience to prevent violent extremism.
  2. Develop our understanding of the driving factors that strengthen or undermine social cohesion and community resilience.

No doubt the development of community resilience committees is part of the work to achieve those objectives, however the committees are not provided for in either the Emergency Management Act 1986 (Vic) or the Emergency Management Act 2013 (Vic).  Other than in the title of the State Crisis and Resilience Council (Emergency Management Act 2013 (Vic), Part 2) resilience is not mentioned in either Act.

As my correspondent has noted, the “role of the community members is informing, identifying, providing local knowledge and feedback etc, rather than approving/executing projects or committing expenditure”.    Given that role it is hard to see how issues of ‘personal liability’ could ever arise?  What is the committee doing that they could be liable for?  Even if there are ‘disaffected property owners who react hostilely to decisions and/or restrictions imposed by council or other agencies …’ it is indeed those agencies that are the decision makers.    If one questioned ‘the role or advocacy of community members of the CRC’ I suppose there could be some sort of administrative attempt to perhaps get the members removed if they were failing to perform their duties, but that seems pretty far fetched.

In any event, who ‘owns’ the Committee?  The Flood Review recommendation was that Victoria Police would take the lead in developing community resilience committees but my correspondent says the committee has been formed by the local council and that the members’ appointments require confirmation by the council. If it’s a committee of council, then it follows that if there is any liability for the processes of the committee it must belong to the council.

The problem with asking questions in the abstract is that the answer must also be abstract.  I just can’t think of any circumstances, malice and fraud excepted, where a member of the community resilience committee could be personally liable to anyone for anything they do.  If there was a specific scenario put to me one could consider issues of whether or not there was a duty of care and whether or not the committee’s actions were reasonable and whether or not it was the committee that was the cause of any harm.    In the absence of some specific scenario where it was thought that liability could arise the answers must be necessarily general.

But let us look at the law.  The ‘volunteer emergency worker provision of the Emergency Management Act’ 1986 (Vic) s 37 says:

A volunteer emergency worker is not personally liable in respect of any loss or injury sustained by any other person as a result of the engagement of the volunteer emergency worker in emergency activity unless the loss or injury is caused by the negligence or wilful default of that worker.

A “volunteer emergency worker” is ‘a volunteer worker who engages in emergency activity at the request (whether directly or indirectly) or with the express or implied consent of the chief executive (however designated), or of a person acting with the authority of the chief executive, of an agency to which the state emergency response plan or the state emergency recovery plan applies’.  An ‘emergency activity’ is ‘”emergency activity” ‘performing a role or discharging a responsibility of an agency in accordance with the state emergency response plan or the state emergency recovery plan’ (Emergency Management Act 1986 (Vic) s 4).

The community resilience committees are not mentioned in either the State Emergency Response Plan or the State Emergency Relief and Recovery Plan.  Further it is clear that the role of the committee, whilst focused on building resilience to an emergency or hazard, are not working in emergency circumstances.    The terms of reference of the particular committee that my correspondent belongs to makes no mention of either the 1986 or 2013 Act.   Without going through every chapter and verse of the Emergency Management Manual Victoria and the Community Recovery Handbook it seems implausible to suggest that the members of the Committee are ‘emergency workers’ for the purposes of the Emergency Management Act 1986 (Vic).

The Wrongs Act 1958 (Vic) s 37(1) says:

A volunteer is not liable in any civil proceeding for anything done, or not done, in good faith by him or her in providing a service in relation to community work organised by a community organisation.

Community work is defined in s 36 and includes work done ‘for the purpose of promoting the common interests of the community generally or of a particular section of the community’.  I would have no doubt that the work of the Committee is ‘community work’.

If that is the case, then the Wrongs Act provides the necessary legal protection.  The Act goes on to say (s 37(2)) ‘Any liability resulting from an act or omission that would but for subsection (1) attach to the volunteer attaches instead to the community organisation’ which can include a council (s 34).  So if there is any liability, it belongs to the council that established the committee.

It should be noted that volunteer members of the emergency services (the Country Fire Authority, Victoria SES and a ‘volunteer emergency worker within the meaning of the Emergency Management Act 1986’) are not ‘volunteers’ for the purposes of the Wrongs Act.  This ensures that their legal protection is provided by the emergency services legislation and avoids confusing arguments about whether the scope of one protection is different to the other.  So a member of the community resilience committee, if they have legal protection, have it from EITHER the Wrongs Act or the Emergency Management Act – but they can’t rely on both.  In my view they are not a ‘volunteer emergency worker within the meaning of the Emergency Management Act 1986’ so their legal protection is provided by the Wrongs Act 1958 (Vic).

Conclusion

I just can’t imagine any scenario, fraud and malice excepted, where liability could be an issue.  In my view, if such a situation could be thought of, the members of the committee would enjoy the legal protection provided by the Wrongs Act 1958 (Vic).  In my opinion they are not volunteer emergency workers within the meaning of the Emergency Management Act 1986 (Vic) so the liability protection provision in that Act (s 37) will have no application.

There is of course no way that any of these can be ‘formally confirmed’.  Even if a minister or the Crown Solicitor gave an opinion that either the Wrongs Act or the Emergency Management Act applied, or didn’t apply, that is just an opinion.  Resolution of the question would require someone to sue and an argument in court, and a formal ruling from a judge.  It is the courts that determine questions of law.  Given I can’t see any situation where the members will be sued, I expect this will remain, forever a question of hypothetical interest only.


Categories: Researchers

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