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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: 7 hours 57 min ago

Liability for advice on dangerous trees

13 June, 2016 - 12:16

A correspondent with NSW SES says:

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

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

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

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

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

That would depend on the terms of any given policy.

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

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

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

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

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

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

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

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

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

Conclusion for question 3

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

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

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

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

 

 


Categories: Researchers

Can you ask the patient to help complete the paperwork?

13 June, 2016 - 11:21

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

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

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

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

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


Categories: Researchers

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

13 June, 2016 - 11:07

This issue is becoming a theme –

This time the question relates to NSW Fire and Rescue.

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

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

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

Discussion

Response times

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

Some law

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

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

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

(c) maintain permanent fire brigades, and

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

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

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

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

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

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

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

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

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

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

The questions

Let me now return to my correspondent’s questions:

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

No.

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

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

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

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

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

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


Categories: Researchers

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

12 June, 2016 - 18:17

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

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

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

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

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

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

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

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

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

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

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

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

 


Categories: Researchers

The value of file notes

10 June, 2016 - 13:26

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

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

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

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

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

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

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

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

Conclusion

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


Categories: Researchers

“Is there a paramedic on the plane?”

9 June, 2016 - 20:57

This question comes from WA but given it relates to interstate travel it could be from any jurisdiction.

An ambulance paramedic is travelling interstate/oversees and is being paid and in uniform.  A medical emergency occurs during the flight and the individual for obvious reasons is asked to assist. As an employee, the individual holds no authority to practice as a single responder, and would not have access to their normal equipment and medications.

Questions:

  1. Am I correct in assuming the Civil Liabilities Act (WA)- Division 7 part 1D Good Samaritans would not apply as the person is employed at the time of the event occurring in the event that harm was done
  2. To what extent does Division 7- professional negligence protect the individual? My interpretation of question 2 is that the Act would cover you in your capacity as a Paramedic, providing you are acting in accordance with practice that is widely accepted as competent professional practice
  3. However to what extent does an organisation hold a responsibility to protect its employee in this circumstance where harm was done
  4. Does vicarious liability still apply?

Discussion

  1. Am I correct in assuming the Civil Liabilities Act (WA)- Division 7 part 1D Good Samaritans would not apply as the person is employed at the time of the event occurring in the event that harm was done?

That would certainly be arguable. In an earlier post Who to treat? A question for St John first aiders (June 30, 2013) I made the argument that in my view the Good Samaritan provisions of the Civil Liability Act 2002 (NSW) would not apply to St John volunteers on public duty as they are there holding themselves out to provide care – they are not acting without an expectation of reward.  In this scenario the paramedic ‘is being paid and in uniform’ so on one view he or she is clearly not acting ‘without expectation of payment’ (Civil Liability Act 2002 (WA) s 5AB).  But, on the other hand, at that very moment he or she is not actually engaged in providing paramedic services, rather they are a passenger on a plane and one might argue that stepping up to provide care was doing something that they were not at that time being paid to do.

Why do I split that hair?  I think if something went wrong and someone tried to sue (remember that is very unlikely) a judge could say, if he or she thought the case was without merit, that the good Samaritan provision (s 5AD) did apply; but if the judge thought there had been negligence, he or she could equally hold that s 5AD did not apply.   But putting aside the role of counsel in suggesting to judges how they can come to the result that they want to, I think as a matter of actual principle it’s correct – s 5AD can’t apply where the paramedic is in uniform and getting paid whether he or she is getting paid to be in an ambulance or flying interstate or overseas.

  1. To what extent does Division 7- professional negligence protect the individual? My interpretation of question 2 is that the Act would cover you in your capacity as a Paramedic, providing you are acting in accordance with practice that is widely accepted as competent professional practice.

Division 7 of Part 1A of the Civil Liability Act 2002 (WA) is headed ‘Professional negligence’.  Relevantly that part applies to a member of one of the 14 health professions registered under the Health Practitioner Regulation National Law (Western Australia) (s 5PA(a)).  Paramedics are not yet a registered health professional so they are included in that list.

The Division also applies to ‘any other person who practises a discipline or profession in the health area that involves the application of a body of learning’ (s 5PA(b)).  Whether that applies to paramedics would be a matter for a judge should the issue every arise but see Are Paramedics members of a profession? (July 24, 2015).

The important part of Division 7 is s 5PB(1) which says ‘An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional’s peers as competent professional practice’.  This legislative enactment was a reaction to the High Court’s decision in Rogers v Whitaker (1992) 175 CLR 479.  Up until that time medical practitioners believed that the law said that the test for negligence was based on:

… the so-called Bolam principle, derived from the direction given by McNair J. to the jury in the case of Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582. In Sidaway v. Governors of Bethlem Royal Hospital, Lord Scarman stated the Bolam principle in these terms ((1985) AC 871, at p 881):

“The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment.”

In Rogers case the High Court said that the Bolam principle was not part of Australian law.  Mason CJ, Brennan, Dawson, Toohey and McHugh JJ held that:

… while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care… Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play…

but at the end of the day whether conduct meets the standard required by law is a legal question to be determined by a court and not the professional opinion of those that are subject to the inquiry by the court.  Section 5PB(1) is an attempt to ‘wind back’ that decision but it doesn’t actually mean much.

Assuming paramedics are not covered by Division 7 so what?  The question of whether a paramedic’s conduct in an mid-air emergency will be judged (if it be judged at all) by the question of what would a reasonable paramedic have done.  To answer that the court would need to look at the paramedics Clinical Practice Guidelines as they define what paramedics are trained to do and hopefully the evidence of other paramedics.  (Stopping to note here that in Ambulance Service of NSW v Worley that even though the issue was whether the Ambulance Service and/or the treating paramedic had been negligent, both sides called 5 doctors each, but neither party called a paramedic to give expert evidence as to what could have been expected from a reasonable paramedic ([2006] NSWCA 102, [30])).    That evidence would ‘have an influential, [if not]  a decisive, role to play’ in judging the paramedic’s performance.

  1. However to what extent does an organisation hold a responsibility to protect its employee in this circumstance where harm was done?

I’m not sure I understand the question.  The employee is at work so the obligations to the employee are the same as they are whenever a person is at work (Occupational Safety and Health Act 1984 (WA)).

  1. Does vicarious liability still apply?

In this case it would have to.  The paramedic was approached not because he or she was the passenger in seat 8D but because he or she was the passenger in seat 8D clearly identified as a paramedic and what the crew were looking for was assistance.  The reason the paramedic was travelling in uniform is because he or she was ‘being paid and in uniform’.  Whether they were travelling interstate for a meeting or overseas for an international deployment, they were at work, being held out by their employer as a representative of the employer (hence the uniform) and they were approached to perform tasks essential to their employment.  Vicarious liability would still apply.

 

 

 

 


Categories: Researchers

Using someone else’s epipen

9 June, 2016 - 19:56

A correspondent asks

… a question regarding adrenaline (epipens) and anaphylaxis.There does not seem to be any clear directives, and indeed there are conflicting opinions on what you can/should do. Here’s a scenario:

Jim is an advanced first aider/medic working at an event. Tom presents with signs & symptoms of anaphylaxis. He has his own epipen which he used before seeing Jim. However, the effects of the adrenaline are wearing off, Tom is in clear respiratory distress, and the ambulance is still some 10-15 minutes away. Assuming that there is another person’s epipen available, does the reasonable medic isolate Betty (who owns the other epipen) and, assuming Betty agrees to “donate” her epipen, use her prescribed medication to treat Tom, and ultimately, save his life? Would a similar situation involving minors have different answer? Would a reasonable medic use the epipen?

An EpiPen is an auto-Injectors that delivers a measured dose of a synthetic version of adrenaline—epinephrine. (https://www.epipen.com/about-epipen/what-is-epinephrine).  According to ‘NetDoctor’ (http://www.netdoctor.co.uk/medicines/allergy-and-asthma/a6668/epipen-adrenaline/)

EpiPen auto-injectors are prescribed to people who have a history or recognised risk of going into anaphylactic shock due to a severe allergy. The EpiPen is intended for self-administration, or administration by a family member or carer, in an emergency. Two EpiPens should be carried with you at all times…

The EpiPen is designed to be used by people with no medical training at the first signs of an anaphylactic reaction.  “Adrenaline autoinjectors are available from pharmacies without a prescription at full retail price (not PBS subsidised)” (http://www.allergy.org.au/health-professionals/anaphylaxis-resources/adrenaline-autoinjectors-faqs).

In the Poisons Standard (June 2016) ‘epinephrine’ is referenced as ‘adrenaline’ and is listed in Schedules 3 and 4.   If an epipen can be purchased from a pharmacy without prescription it must be in Schedule 3 ie ‘Pharmacist Only Medicine – Substances, the safe use of which requires professional advice but which should be available to the public from a pharmacist without a prescription’.

There are two types of epipen – “EpiPen (epinephrine injection) 0.3 mg and EpiPen Jr (epinephrine injection) 0.15 mg” (https://www.epipen.com/about-epipen/what-is-epinephrine). According to the Australasian Society of Clinical Immunology and Allergy (http://www.allergy.org.au/health-professionals/anaphylaxis-resources/adrenaline-autoinjectors-faqs, FAQ 20):

Higher dose adrenaline autoinjectors (yellow label devices) should NOT be administered to children under 1 year of age [but] In children aged 1 to 5 years of age … if only a yellow label device is available (containing 0.3mg of adrenaline) this should be used in preference to not using one at all.

What follows from that is that epipens aren’t ‘tailored’ for individual patients.  A person either needs an epipen or they don’t. Using one person’s epipen is not going to deliver a different version or the dose of ‘epinephrine’.

A person who ‘…  holds a current first aid certificate issued after completion of a first aid course approved by the WorkCover Authority …  and the person has received training on the symptoms and first aid management of anaphylaxis’ is entitled to possess and use adrenaline (Poisons And Therapeutic Goods Regulation 2008 (NSW) Appendix C, cl 13).  I will assume that Jim has completed approved training in anaphylaxis first aid.

Discussion

In the scenario there is no issue of giving an epipen to someone who hasn’t had the relevant diagnosis.   Both ‘Tom’ and ‘Betty’ have their epipen. The epipen may be ‘prescribed’ for Betty in order to allow her to buy it at a subsidised price, but we know that it will be the same as the epipen for Tom.

The question I ask is not whether Jim can use Betty’s epipen to save Tom, but what possible reason would stop him?  Betty’s agreed, Jim’s trained and knows how to use it, and Tom needs it.  In deciding whether or not a duty of care arises a key issue is ‘vulnerability’.  Tom is vulnerable, he’s likely to die.  Can he do something to protect himself?  No, he’s not got another epipen. Can Jim?  Not without Betty’s assistance but given Betty’s volunteered her epipen then he not only can see the need, he knows what is required and has the opportunity to do something.  And he’s not a mere volunteer (ie someone who just happened upon the scene and volunteers to help) he’s ‘an advanced first aider/medic working at an event’ so Tom’s presumably come to him for help.

What are the costs? It deprives Betty of her epipen should something happen to her.  One certainly couldn’t insist that Betty give up her epipen or take it from her, but if she volunteers it that’s fine.  There is no limit on its use, it’s not a ‘prescription only’ drug and even if it is Jim is authorised to take possession of it from Betty and use it.  There really is no reason not to do it.   And every reason to do it. Imagine your Tom’s loved one and it turns out that when Tom was dying, Betty was saying ‘I have an epipen use it’ and Jim, the onsite first aider says ‘I won’t use that, it’s yours’ with the result that Tom died?  If we accept that there is a duty of care, the test for breach is set out in the case that is quoted so often on this blog, Wyong Council Shire v Shirt (1980) 146 CLR 40,.  There Mason CJ said (at p 48).

… what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a 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 which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

The magnitude of the risk is that Tom’s going to die.  I’ll leave it to clinicians to say how probable that is but remember we’re asked to assume ‘Tom is in clear respiratory distress, and the ambulance is still some 10-15 minutes away’.   What’s the expsense of treating him?  The cost of Betty’s epipen which she’s volunteering.  Is there any ‘difficulty and inconvenience of taking alleviating action’?  Only that it leaves Betty without an epipen.  There are no conflicting responsibilities given Jim’s actually authorised to use and administer the drug.  Failure to take action would appear to be an axiomatic case of neglect and negligence.

Conclusion

Does “the reasonable medic isolate Betty (who owns the other epipen) and, assuming Betty agrees to “donate” her epipen, use her prescribed medication to treat Tom, and ultimately, save his life?”

I can’t see how a reasonable medic would do anything else.

Would a similar situation involving minors have different answer?

No, even if Betty only had an epipen and not an EpiPen Jr it should still be used.

Would a reasonable medic use the epipen?

I can’t see how a reasonable medic would do anything else.

 

 

 


Categories: Researchers

Refusing treatment documentation

9 June, 2016 - 16:02

A Victorian paramedic wants to know

… how much legal standing having a patient sign your Patient Care Record acknowledging they do not wish treatment or transport carries?

I’m talking about cases here where you assess a mentally competent patient, deem they probably should go to hospital to be treated for whatever, but they decide they don’t want or need to go.  Our case sheets here carry a disclaimer broadly stating that the paramedic has assessed the patient and advised them they should go to hospital.

If the patient wishes to refuse transport, that is fine, but we are then supposed to get them to sign, in fact policy requires us to get them to sign.  Notwithstanding it is a policy requirement, I am wanting to know the legal strength, and what if the patient refuses to sign?

The other point is, we are getting the patient to sign a PCR that we have not fully completed, in most cases we would have just entered their personal details and the rest would be added later when we clear the scene.  Would this have a bearing if, for whatever reason, the case later went to court?

Over the years, I have heard varying opinion –  from you NEED to get this signed to protect yourself from any adverse events, – right through to “it makes no difference legally whether the patient signs or not”

The patient’s signature on the Patient Care Record is evidence confirming the details are true.  But the details of what?  Not the details on the PCR but whatever it is they are being asked to sign.  Let me explain.  In NSW a patient is asked to sign a Non-Transport Declaration (I use NSW even though my correspondent is from Victoria, as I couldn’t find the Victorian equivalent online, but a NSW form was online (Patient Health Care Record SOP (Version 4.0 July 2009), <http://www.ambulance.nsw.gov.au/media/docs/phcr_version_4-ab6dab58-37b5-453c-8fda-720f86212df0-0.pdf> p 65).  I’ll assume that the Victorian (and all states’ equivalent) is in similar terms.

So in this case the patient is acknowledging that they understand they have been assessed, that a full and complete medical examination is not possible, and that if there is any change they should seek further advice.  They are not certifying that everything on the PCR is correct – they couldn’t in any event certify what the paramedic found on examination, what treatment if any was given, what observations were made or conclusions drawn.  So the first point is that it doesn’t really matter that they are being asked to sign even though the PCR is not fully completed; but we’ll come back to that.

If the document is evidence then that is the extent of its legal standing.  It doesn’t prove that the patient has indeed been assessed by paramedics, or that they do in fact understand that if there is any change they should seek further advice but it raises evidence that that is the case.

Assume that shortly after leaving the scene the patient collapses and does end up in hospital with a serious and critical illness or injury and the question becomes ‘why didn’t the original crew transport?’  If the patient says ‘they told me I didn’t need to go’ or ‘they refused to take me even though I begged them too’; then the patient’s signature on that form will be evidence against those claims and he or she will have to explain how their signature got there.  That is not impossible – “I didn’t know what I was signing”, “They told me I had to”, “I couldn’t read it” etc.   All of that evidence goes into the mix for a judge or jury to decide what they believe actually happened.

These things (documents and forms generally, not just this one) really come to grief when they are used because people believe they have to be, or that they are a guarantee, even when it’s not for a proper purpose.  A clear example in this context would be using a ‘Refused treatment’ form when really what you mean is ‘Paramedic advises patient treatment not required’.   I see now that NSW Ambulance has a ‘Patient Transport Decision’ form (see below):

Once upon a time though recommending non-transport was frowned upon so people would claim the patient had refused transport when clearly that was not the case (see Transport everyone or act as a professional? A question for paramedics (May 6, 2013)).   In that case getting a person to complete a card saying ‘I refuse treatment’ when really what happened is ‘I have been advised I don’t need treatment’ just brings everyone into disrepute and is likely to make a court view any evidence with suspicion.

It follows that the absence of a signature doesn’t prove anything either.  You can’t make a patient sign the document. If they don’t the paramedic can still give evidence as to the conversation that occurred and the circumstances in which advice was given, rejected and the patient refused to sign the declaration.  Critical here would be the paramedics ‘contemporaneous notes’ that is notes written at or soon after the time of the event where you record what happened and what was said (and try to record conversations in the first person ie I said …; he said ….’).

Conclusion

The questions I was asked were:

… how much legal standing having a patient sign your Patient Care Record acknowledging they do not wish treatment or transport carries?

Answer: its evidence that the things stated on the card are true – using the NSW example the signature is evidence that the patient understood that they had been assessed, that a full and complete medical examination was not possible, and that if there was any change in their condition they had been advised to seek further advice.  Having said it is ‘evidence’ means it does not prove, conclusively that those things are true, but the presence of the signature ‘could rationally affect (directly or indirectly) the assessment of the probability’ that those things did in fact happen (Evidence Act 1995 (NSW) s 55).

… and what if the patient refuses to sign?

Again that is evidence.  If in court the patient says ‘I didn’t sign because it wasn’t true’ then the absence of signature might suggest that is the case.  If the paramedic’s evidence, supported by notes taken at the time that says something like:

‘Patient refused treatment and left the scene.  I said ‘Excuse me sir, I really think you should come with us to hospital, I’m really concerned about your injury’.  He said ‘F#@- off’ [but in your notes you would actually write the words used, but this is a public blog]. I said ‘would you mind signing this form just to confirm that I’ve explained the situation to you.  He said ‘F#@- off’ and left the scene in a car driven by a person I didn’t know.

Then the absence of signature could confirm that version too.

… we are getting the patient to sign a PCR that we have not fully completed, in most cases we would have just entered their personal details and the rest would be added later when we clear the scene.  Would this have a bearing if, for whatever reason, the case later went to court?

As I said that doesn’t really matter as the person isn’t endorsing the entire PCR.  That may be an issue if the suggestion is that you completed the PCR after something went wrong.   So the patient refuses treatment, you move onto the next job, then the next and then you see your patient in the resus bed at hospital and realise things have gone from bad to worse so you then get out the PCR and start filling it out with the ‘Refused Treatment’ declaration right there in front of you. There may be some room for suggestion that in then filling out the PCR you put entries in, or omitted them, in order to make the decisions appear more ‘reasonable’.  That’s got nothing to do with the Non-transport declaration really, just the need to complete records ASAP and not when you begin to think they might actually be called for.

Over the years, I have heard varying opinion –  from you NEED to get this signed to protect yourself from any adverse events, – right through to “it makes no difference legally whether the patient signs or not”

It really does make ‘no difference legally whether the patient signs it or not’.  Should the issue arise the issue will be – did the paramedic explain the situation to the patient and did the patient competently refuse treatment?  The signed form is part of the evidence to go into the mix for the court to consider.


Categories: Researchers

Employment Protection for NSW Volunteers

9 June, 2016 - 10:25

With the recent severe weather and many volunteers responding to help their community, the NSW Premier made a declaration under Part 3A of the State Emergency and Rescue Management Act 1989 (NSW).  You can read the declaration on the NSW Legislation website.

Section 60B of the State Emergency and Rescue Management Act 1999 (NSW) says:

An employer must not victimise an employee of the employer for being absent if the absence was due to the employee taking part in emergency operations as a member of an emergency services organisation and the absence occurred while this Part applied to the operations (pursuant to an order of the Premier under this Part).

Victimise means much more than just dismiss.  According to s 60C:

An employer victimises an employee if the employer:

(a) dismisses the employee from employment with the employer or terminates the engagement of the employee by the employer, or

(b) alters the employee’s position in his or her employment with the employer, or alters the circumstances of the employee’s engagement by the employer, to the employee’s prejudice, or

(c) otherwise injures the employee in his or her employment with, or engagement by, the employer.

In other words it is unlawful, in NSW to sack or otherwise adversely alter the terms of a person’s employment because they were on emergency service duty.

With the declaration in place (and it remains in place for 30 days), any employer who victimises an emergency service volunteer commits a criminal offence (s 60B) with a maximum penalty of $3300 (s 60B and Crimes (Sentencing Procedures) Act 1999 (NSW) s 17, which provides that in NSW a penalty unit is worth $110).  If the employer is convicted the Court may also order the payment of compensation, that the employee is reinstated and various other remedial orders (see s 60F).  I have not heard of any NSW employees being victimised because of their decision to help the community as volunteers, but at least those that are responding to the current emergency have, with the Premier’s declaration, added legal protection.


Categories: Researchers

Two Questions regarding NSW SES

7 June, 2016 - 22:48
  1. What are the legislative response for SES in relation to Animals

One of the functions of the SES is ‘to carry out, by accredited SES units, rescue operations allocated by the State Rescue Board’ (State Emergency Service Act 1989 (NSW) s 8(1)(e)).

According to the State Emergency and Rescue Management Act 1989 (NSW) s 3, rescue means (emphasis added): ‘the safe removal of persons or domestic animals from actual or threatened danger of physical harm’.    According to the Prevention of Cruelty to Animals Act 1979 (NSW) s 4, a domestic animal is ‘an animal which is tame or which has been, or is being, sufficiently tamed to serve some purpose for the use of human beings, or which, although it neither has been nor is being nor is intended to be so tamed, is or has become in fact wholly or partly tame’.

It follows that an SES unit that is an accredited rescue unit is required to respond to rescue ‘domestic animals’ which would include traditional pets (cats, dogs etc) but also farm animals and the like.

  1. Can SES Bronze Licence (or any other licence), drive an operational vehicle (rental unequipped) with an Amber Flashing Light?

Putting aside the issue of SES licence, I’ll rephrase that question as ‘Can the SES put a amber flashing light on a rented vehicle that is being used as part of the operational response to an emergency?’  The answer is not what one might think.  The Road Transport (Vehicle Registration) Regulation 2007 (NSW), Schedule 2 – Vehicle Standards cl 124 says that a State Emergency Service vehicle may be equipped with blue or red flashing light (and I note that everyone interprets ‘or’ to mean ‘and’; cl 124(2)(p) and 124(7)(a)).  But what is an SES vehicle?  That’s not defined.  Does it mean a vehicle owned by the SES or operated by the SES?  I would suggest it has to mean the later as an agency like the SES may enter into all sorts of arrangements to access vehicles including leasing them or, in the past, using vehicles provided by local councils. The SES aren’t going to put roof bars and radiator lights on a car they’ve borrowed for the day but they may well do so on vehicles that are being supplied as some sort of vehicle leasing/fleet arrangements.  The issue isn’t really who ‘owns it’ but who is operating it.  If that’s the case, why not a rental vehicle too?

That of course doesn’t answer the question. The list of vehicles that can have flashing warning lights goes from (a) to (q).  The colour for police, ambulance, fire, SES and some other vehicles are set out in cl 124(7).  If the type of vehicles is not listed then s 124(7)(e) applies and it says ‘in the case of any other vehicle-a yellow light unless otherwise approved by the Authority’.

If I’m right and a hired vehicle can be an SES vehicle if it’s being used by the SES for operational reasons, then it has to be fitted with a red or blue light (cl 124(7)(a)) not a yellow light.  (Let me add I don’t think any vehicle driven by a member of the SES becomes ‘an SES vehicle’ so I’m not suggesting people can put flashing lights on their own cars.  But if a vehicle is hired by the SES then it could be an SES vehicle).   So the answer is ‘no, they can’t have a yellow or amber light, but they could have a red or blue one’.   Of course whether the SES wants to put a red or blue light on an otherwise unmarked car, and whether that’s a good idea, are different questions.   John Killeen, author of Ambulance Visibility Blog may have some thoughts on those questions?

 


Categories: Researchers

When does a duty of care return?

6 June, 2016 - 20:47

A sports trainer or first aider treats a person, hands the care to paramedics, but do they then take back the care of the patient.

I am a Level 2 sports trainer with about 10 years’ experience. Recently I had a player knocked out for approx. 15-20 secs. On field assessment there was no signs or symptoms of concussion or injury. Player was moved to the bench and then had delayed onset concussion signs and symptoms and complained of a sore neck. Player deteriorated rapidly and became emotional unstable. I called an ambulance and they arrived 7-10 minutes later. I had performed inline manual support of player’s neck. Paramedics determined it was soft tissue (which I was pretty sure it was but followed protocols.) Paramedics then advised player that they were happy for him to go home and be monitored by his mother and did not transport him to hospital. I followed up with patients mother the next day as she is a friend of mine. She advised that he had a big headache, sore neck and was still not quite right. I suggested she get medical advice. A colleague has queried if I then took back the duty of care in following up and giving advice. What are your thoughts on this? I have resumed duty of care? I always follow up with serious cases the next day or 2 and don’t want to put myself at risk.

Let me change the facts a bit and remove the words ‘as she is a friend of mine’; that is we can explore the point with more clarity if the only relationship is first aider/patient.

The Civil Liability Act 2002 (NSW) s 5B (and its equivalent in each jurisdiction) says:

A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

If we take that as a starting point, there is no doubt that the trainer/first aider owes a duty of care to their patient on the playing field.   I accept that, in the scenario I’m given, the care provided by everyone met the requirements of ‘reasonable care’. For my correspondent it means the ambulance has been called, paramedics have assessed the patient and I accept made a reasonable decision to allow the person to go home with his mother.  If that was the end of the story that would, indeed, be the end of the story.  If the patient later suffered complications or their condition deteriorated it does not follow that the care provided up to that time has been reasonable.

The complication is that my correspondent rings the next day to check up on the patient.  I think there can be no doubt that at some point in the conversation the question ‘how is he?’ will be asked. There are two possible answers. Either 1) ‘he’s fine everything’s good’ or 2) ‘he’s not fine’ in fact the very answers my correspondent was given serve as an example of the second type of answer, ‘he had a big headache, sore neck and was still not quite right’.

If the answer was (1) ‘he’s fine’ all well and good.  If the answer was a type (2) answer, what do you do with that information?  You can either say ‘oh dear, sorry to hear that, I hope he gets better soon’ or ‘gee, that’s not so good, you should probably get medical advice’. In some circumstances the answer might be ‘we have to get off the phone and you have to call triple zero and ask for the paramedics’.

What’s the risk?  Let’s assume that the person has spinal or head injuries, or even both.  The risk could be catastrophic if care isn’t obtained.  Remember I’m assuming that the only relationship is first aider/patient, not that there is a friend or family relationship.   In that case  the trainer/first aider has special knowledge, perhaps more than the patient or his carer.  The trainer/first aider, because of that knowledge, knows of the risk and of the need to care.  Presumably the carer does not (if they did they would already have sought that extra care).  So you have a vulnerable person, the trainer/first aider has the relevant knowledge and can do something to protect the vulnerable person (ie give advice) and if they don’t the vulnerable person can’t protect themself because they don’t know of the need to do so.

Imagine if later the person drops dead and it’s found that they had cerebral oedema and if they’d been brought to hospital earlier it could have been treated and their life saved.  I can imagine the carer, in our scenario the mother, saying ‘The person who treated him rang me and asked how he was, I told him and that person didn’t say ‘seek medical care’ so I didn’t think to do so. If it was serious that person would have or should have said something’.  And that argument is attractive, because why else did you make the phone call?  If you’re not prepared to give advice if the answer is ‘things aren’t good’ what’s the point of following up with the person?  There have been cases where doctors have been liable because in consultations they didn’t stress the need to get further care or follow up on tests or the like and the plaintiff/patients have claimed ‘they didn’t tell me it was urgent or important or critical’.  I think a similar argument could work here.

Why did I remove the words ‘as she is a friend of mine’?  Because if there’s a pre-existing friendship the call can be explained by that relationship and one would understand that a friendly inquiry does not create a legal duty, but I would still expect advice to be given to seek care.  But if there is no pre-existing relationship, the only reason for the phone call is because you, the person making the call, was the person who provided care at the field and you are not providing follow up care.   If you don’t have in mind what you are going to say if the answer to ‘how is he’ is ‘not good’ then why are you making the call?

So yes, I think making the follow up call does bring with it a duty to respond ‘reasonably’.  That doesn’t mean that the caller has to rush over and provide an ambulance service or to deliver advice and care beyond their level of skill or expertise.  In this case a reasonable response may be exactly what was given ‘I suggested she get medical advice’ but the alternative of saying nothing or advising the person to do nothing in circumstance where they know you are a relevant health carer so you know your advice is, in the circumstances, required and likely to be acted on would be indefensible and could be negligent.

 


Categories: Researchers

Responding ‘the closest fastest most appropriate resource’ in South Australia

6 June, 2016 - 18:32

This question, with regard to the potential legalities surrounding the response of the closest fastest most appropriate resource to fire or other emergency, comes from a member with affiliations with both the South Australian Metropolitan Fire Service and the South Australian Country Fire Service.  My correspondent says:

In the peri urban areas of Adelaide city there is an area of interface between the SAMFS [Metropolitan Fire Service] and the SACFS [Country Fire Service]. The MFS have a clearly gazetted fire district (under legislation) with a boundary and everything outside of this is designated as CFS area (although to my understanding this is not a gazetted area just “CFS area” ie: not gazetted fire district).

As the city has grown and expanded we now have a situation where the volunteer CFS brigades are responsible for an area with major urban risks which traditionally were wheat paddocks or scrub or sparsely populated.

The response of emergency services is coordinated through a Computer Aided dispatch system (SACAD) which is supposed to respond the closest, fastest most appropriate resources, however here is the rub. There is no delay allocated against volunteer response as opposed to fulltime response. Resource responses are submitted for entry into CAD by local volunteer officers despite the fact that the local fulltime station would statistically have a much faster and not to mention, guaranteed response over the local volunteer resources.

In a recent example a fire occurred in an area of MFS and CFS interface in which the local MFS resource was the closest most appropriate resource however were not responded due to local CFS response plans in CAD.  The local volunteer unit took a period of time to assemble a crew and mobilise to the fire.  This time period was of such an extent that if the local MFS station had been mobilised at the same time (time of call) they would have been on scene and fighting the fire approximately one minute before the local volunteers became mobile from their station.

The incident was in CFS area (just) and as such response plans are under the control of the local CFS volunteer officer.  In this case they had not included the (closer) MFS station in their response plan.

The legal question is… Where do the emergency services and indeed the Government of SA stand in supporting a system which neglects to send the fastest closest most appropriate resource without a system of checks and balances against service delivery and what, if any, action could the local homeowner, whose house has burnt down, take against ESO’s who are consciously not including the fastest, closest most appropriate resources.

Will the legislation protect the actions (or lack of action) of the CFS in this example or is there a higher duty to compel ESO’s to put the community first and certainly before any inter-service rivalries?

A fire district is established by the Fire Services Commission (Fire and Emergency Services Act 2005 (SA) s 4).   The South Australian Metropolitan Fire Service (MFS) is, amongst other things, required to ‘provide services with a view to preventing the outbreak of fires, or reducing the impact of fires, in any fire district’ and ‘provide efficient and responsive services in any fire district for the purpose of fighting fires…’ (s 26).  Fire services in those part of the state that are not part of a proclaimed fire district are provided by the Country Fire Service (CFS). The CFS has similar functions to the MFS (s 59).   Both the MFS and the CFS can operate in areas that are the responsibility of the other service (s 4(4)) and take control of the response to an emergency if the other service is not yet in attendance (ss 42(2)(E) and 96(2)(D)).   The Act does not say that either agency is required ‘to respond the closest, fastest most appropriate resource…’

Even so, it is the case that the MFS is the agency for responding to fires within a fire district, and the CFS is the agency for responding to fires outside a fire district. If the property in question was outside a fire district, then responsibility for managing the response lies with the CFS.   In these days of ‘all hazards, all agencies’ the agency in charge of response does not need to actually ‘respond’ they could ask another agency to assist.  So I infer there’s nothing to stop the CFS asking the MFS to respond to a fire outside the fire district – save that removing that appliance from the fire district does necessarily leave the fire district with less cover.

I don’t know, from the facts given, whether or not a duty officer has to make a call on what appliance to respond to each call, or whether the response plans are determined, loaded into CAD and then the despatcher applies them.  Either way it doesn’t really matter.  Putting aside the assertions that the decision here was somehow improper or based on inter-service rivalry, and without wanting to get into an actual case and an actual decision, I can look at general principles.

The fire services and the South Australian Fire and Emergency Services Commission are given broad functions and powers under the Fire and Emergency Services Act 2005 (SA).  Having been given those broad directions, it is up to them to consider all they ways fire services can be delivered and make choices.   Those choices include questions of where to put fire stations, how many fire fighters to employ or volunteers to engage, what appliances to buy, response protocols and the like.  Making those decisions needs to take into account the budget, the population, the state of the fire science, what’s available, firefighter welfare etc.    That may mean that even if the appliance is the closest, it may not be the most appropriate.

A person who thinks that a fire service or the Commission has failed to perform its functions could seek ‘judicial review’ to compel them to perform their tasks according to law but a court will recognise that the Parliament has given the discretion as to how to perform the tasks required of the service to the service and its Chief Officer.  A Court will not override that decision unless the decision ‘… is so unreasonable that no reasonable authority could ever have come to it…’ (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223).

In order to sue for damages a person in the situation described would have to show that the decision to despatch the CFS, not the MFS was negligent.  The first thing that would require was establishing that the fire service owed the resident a duty of care and generally, a fire service does not – see Liability for fire – a review of earlier posts (January 8, 2016).   If they could show a duty of care they would have to show the action was in fact negligent, that is it was below the standard to be expected of a reasonable person in the defendant’s position.  To assess that the court needs to consider

… what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a 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 which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position. (Wyong Shire v Shirt (1980) 146 CLR 40, 48).

So the person responsible for nominating the appliance and who considers that the MFS may be quicker than the CFS has to consider what difference will it actually make to the outcome?  What impact will it have on the fire district to have their appliance leave, (assuming that the fire station has probably been put there to service the relevant community)? And that the policy is that the CFS respond outside a fire district, the MFS inside one.

The homeowner would also need to show that a different decision would have led to a different outcome.

So the answer to the question ‘what, if any, action could the local homeowner, whose house has burnt down, take against ESO’s who are consciously not including the fastest, closest most appropriate resources’ is not much.  The word ‘consciously’ is I think a pejorative here, in that I believe my correspondent intends to imply some mala fides which I don’t accept.  But consciously can mean ‘knowingly’ and the CFS may well despatch a volunteer brigade knowing it will be slower than a full time brigade because for a whole variety of reasons, including the need to keep the urban brigade for fires in the fire district.  Provided that is not so unreasonable that no-one would think the relevant officer was attempting to perform his or her duties, and provided it is supported by reasons (ie ‘reasonable’) then there will be no action the homeowner can take.

If the MFS station is close to a growing population but the boundary of the fire district is such that CFS brigades from further away are responding, then the real issue lies not with the fires services but the Fire and Emergency Services Commission.  It is up to the Commission to ‘… establish a fire district or fire districts for the purposes of the operations of SAMFS‘ (s 4(1)).  Further the Commission may ‘vary the boundaries of a fire district’ (s 4(2)).  The Commission is also ‘to provide for the effective allocation of resources within the emergency services sector’ (s 8(1)(e)).    If the population of ‘the city has grown and expanded’ to such an extent that a volunteer CFS brigade can’t really provide the necessary support then it might be incumbent upon the Commission to change the boundary and bring that population within a fire district.  Making that decision is more complex than just deciding who can respond fastest, because if that was the only issue every fire station would be staffed 24 hours a day, but communities can’t afford that.

The various duties or functions set out in the Act are statutory duties, but an aggrieved person can’t necessarily sue for a breach of statutory duty, there has to be an indication that the parliament intended that someone could sue (see ‘Black Saturday’ litigation (May 11, 2011).  So the chances of a home owner being able to sue are slim to zero.

The issue here is political. Governments get elected to do various things and one of the things we expect them to do is manage the emergency services but also to make allocations of resources across competing demands.  More money could be spent on emergency services but that would mean less money on something else.  Decisions have to be made but for every decision there are alternatives.  In Australia there is a separation of powers between the courts, the parliaments and the executive (represented here by the Commission, the CFS and the MFS).  The parliament makes the law (the Fire and Emergency Services Act 2005 (SA)), the executive have to put it into action and the court’s role is to ensure that the executive acts in accordance with the law – not to ensure that the executive makes the decision that a litigant or a judge would like them to make.  If the executive are making decisions that are within their discretion, a judge won’t interfere.  In this case the parliament has said it is up to the Commission, the MFS and the CFS to determine how fire services are provided.  If they are ignoring their duties, acting in bad faith or making decisions that are ‘so unreasonable that no reasonable authority could ever have come to it’ then a court may have jurisdiction to intervene.  Otherwise, if a community is unhappy with the decisions that are being made, it is up to them to take it up with the government or, if a person is really passionate about the matter, run for election!

Conclusions

The questions put to me were:

Where do the emergency services and indeed the Government of SA stand in supporting a system which neglects to send the fastest closest most appropriate resource without a system of checks and balances against service delivery?

It is up to the government, through the responsible minister to determine issues of emergency service management.   There is no obligation to have a system that guarantees ‘the fastest, closest most appropriate resource’ particularly as the ‘fastest, closest’ may not be the most appropriate.  It is up to the agency (with the government ultimately responsible) to decide what is ‘most appropriate’.

What, if any, action could the local homeowner, whose house has burnt down, take against ESO’s who are consciously not including the fastest, closest most appropriate resources.

None.

Will the legislation protect the actions (or lack of action) of the CFS in this example or is there a higher duty to compel ESO’s to put the community first …?

Yes, the legislation and the common law will protect the CFS in this example unless there is perhaps actual mala fides which I doubt (despite my correspondent’s implications to the contrary).  If there is a duty to ‘put the community first’ it is debatable what that means.  If the MFS were despatched to the fire and then someone’s house, in the fire district, burned down they might say that the decision to despatch the MFS did not ‘put the community first’.    How to deploy resources, not only how to deploy appliances that are sitting at a station, but where to put stations and what policies to put in place, are complex issues that require consideration of multiple factors so they are given ultimately to the Chief Officers.  That in a given case they mean a delay that another policy may have avoided does not mean that anyone is failing to ‘put the community first’.    If a person thinks the agencies are not putting their community first there remedy lies not in law, but in running for elected office and making the case in the forum of government.

 

 

 

 


Categories: Researchers

Changes to the CFA and some non-advice

5 June, 2016 - 12:56

It is clear to anyone paying attention to the news that there are significant industrial issues affecting Victoria’s Country Fire Authority and the relationship between employed firefighters, the United Fire Fighter’s Union, the CFA and CFA volunteers.  The matter is such that I’m asked a ‘couple of questions … that centre around the current political climate’.

A mass rally has been called for tomorrow* at Treasury Gardens in the Melbourne CBD, the volunteer association has directed members to wear their yellow PPC so as to identify them as CFA volunteers (has brand logo’s attached). The Chief office has in the past made it clear to employee’s (united Fire Fighting members) that clothing identifying the organisation was against CFA policy and not to be worn to political protests or rally’s. As a result, the United Fire Fighters Union has its own unbranded PPC for such events.  Would it be reasonable to apply the Chief Officers clear instruction to volunteers? If not, then what would constitute the disparity?

Sources have also indicated that some brigades would refund members (and presumably their families) the financial cost to attend the rally/protest, as this reimbursement comes from publicly donated monies (fund raising) for the purpose of administration and operational costs not covered by the organisation does this reimbursement raise propriety issues if not constitutional or legal implications when used to support political action?

We have been informed in the past that whilst monies gained from fundraising and donations are considered the individual brigades the reality is that the CFA has ownership and ultimately responsibility for said accounts. Does this in anyway impact legally on the decision to reimburse members.

* I received the email on Sunday 5 June so inferred that the rally was scheduled for Monday 6 June but others have said it will be/was on 5 June.

Whilst the questions are very interesting, I don’t think I should answer them.  On the ‘About’ page on my blog I say:

This is not a place for providing specific legal advice, so I won’t be able to answer questions that are based on actual events … If your concern clearly falls in the above categories then understand I may not be able to give an answer, but remember there is no harm in asking and if I think I shouldn’t answer a question or comment on an issue, I’ll say that.

Given the ongoing nature of the current dispute this is clearly about ‘actual events’ not a theoretical possibility and it is likely (if I can be so bold) that what I say might actually affect decisions by people about whether they go to the rally or what they wear.

And I can’t give specific advice here even if I wanted to. I haven’t seen ‘the Chief Officer’s clear instruction’ so I don’t know if it applies to volunteers or not.   As for the use of funds that would require detailed knowledge of how particular brigades are established, and relevant financial delegations and Victorian rules on using finance.    The CFA is different to say the NSW Rural Fire Service.  The CFA registers brigades upon their application so it is still a more old-fashioned model where people can form a brigade and then apply to be part of the CFA (s 23(1)(b); noting that it is an offence to operate an unregistered brigade (s 26)).  In New South Wales, RFS brigades are established by the RFS so they don’t have any independent existence (Rural Fires Act 1997 (NSW) s 15; see also ‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015)).   If CFA brigades are established and then registered they may have property independent of the authority and that is implied by s 22 that provides that ‘A person in whom personal property is vested for or on behalf of a brigade …may a) transfer the property gratuitously to the Authority’.  I can certainly understand why the CFA management would not want brigade money spent on sending members to rally against the government but whether they have that much direction over the use of brigade funds would require much more detailed knowledge of actual delegations and the structure of the particular brigades involved. It is not for me to tell CFA brigades or their members what they can do with their money in circumstances where it is at least likely that they may seek to act on that advice. 

Finally, does it raise constitutional issues?  Yes it must, see Speaking out on social media (May 9, 2016) – there is an implied right to free political speech. One can understand why the CFA doesn’t want people to represent themselves as CFA members when protesting some general government policy or running for election.  For example, a person handing out ‘how to vote’ cards at the forthcoming federal election should not wear their uniform as their CFA membership is irrelevant and would be an attempt to add some improper link to the CFA.  But a protest where the protest is about the CFA may be a different issue. People don’t need their CFA uniforms to show they are members of the CFA if they are at a protest of CFA members expressing their views on issues affecting the CFA.  Whether they are in their PPE or not it’s clear that they are members of the CFA and their membership of the CFA is an issue of essential relevance to exercising that right of political free speech – the very point is that the people protesting are members of the CFA.  We’ve seen fire brigades protest before using fire service appliances and uniforms – see darinsullivan.net Fire Strike and associated photos and description of fire fighters and appliances rallying before the NSW Parliament.   Whether that is sufficient to attract the constitution right should there be an attempt to discipline members who wear their PPE to the rally would be a debatable point.   To take that debate further would, however, again be giving specific legal advice to people who may well choose to act on it.  I’m in no position to say to members of the CFA who may be planning to go to the rally, that they do or do not have a constitutional right to wear their uniforms.  

So there are legal issues here. Issues of:

  • How autonomous are CFA brigades and how can they spend money that has been collected by the brigade for purposes not covered by the CFA? and
  • Would the constitutional right of free political speech extend to allow members to resist a direction not to wear CFA issued PPE to a rally where membership of the CFA is in fact the very issue?

On this blog I’m happy to say that they are relevant legal issues that could arise should anyone seek to take disciplinary or legal action against a brigade, the brigade executive or a member who attends the rally.  I am not prepared to give advice on what the answer actually is or will be; these questions need to be directed to the organisers of the rally.


Categories: Researchers

Refusing service to repeat SES callers

4 June, 2016 - 16:23

A member of the NSW SES asks:

Is the NSW SES able to refuse to provide assistance to storm affected properties, where the owner/resident has previously had the NSW SES provide assistance multiple times, but since then has not taken any action to to mitigate future issues?  (This question is not meant to look at life threatening scenarios.)

I’ll provide you with a hypothetical scenario as it provides more context…

A home owner calls the NSW SES for the first time due to storm damage in their yard. The storm damage appears to be caused by lack of owner maintenance and something from council. The location of buildings etc on the property are a major contributing factor to the problem. The team attends, places some property protection, does the maintenance the owner should have done, and tells the owner to fix the cause of the problem or at minimum perform maintenance.  Some of the problem is due to an issue on council property, Council proceeds to fix their side of the problem. In a period of under 2 years, the home owner calls the NSW SES several times. Same action is taken and advice is given by SES team as on previous calls. The home owner gets to a point where they are calling “because it might happen”.

The State Emergency Service Act 1989 (NSW) s 8 says:

(1) The State Emergency Service has the following functions:

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

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

There are two issues to note:

  • There is no definition of what is a ‘storm’ as opposed to ‘some rain’ or ‘a windy day’ (see The NSW SES is the combat agency for floods and storms – but what is a flood? or a storm? (October 6, 2015);
  • Sections 1(aa) and 1(b) do not refer to an ‘emergency’ response. Although the agency is the State Emergency Service there is very little reference to ‘emergency’ in the Act.  Part 5 (ss 18A-24) deals with ‘Emergencies and Emergency Powers’ and applies during emergencies caused by floods (s 19) but what is an ‘emergency’ is not defined.    The State Emergency and Rescue Management Act 1989 (NSW) defines an ‘emergency’ as

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

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

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

being an emergency which requires a significant and co-ordinated response.

If that is the relevant definition for the State Emergency Service Act one can see that organising a massive response where whole communities have been affected is an emergency, but responding to damage to a single house is not.    But as I’ve noted, ss 1(aa) and (b) don’t refer to an emergency.  In the scenario I’m given the householder’s property is at risk of damage arising from a storm.   One could say that the risk was also due to the homeowners lack of care but that would be true for every job – and if one took that to its logical extreme, the SES would only turn out to overwhelming events where no amount of preparation and enhanced building standards would have prevented the damage.  That could be a reasonable approach but it would stop the SES from responding to anything.

I ask myself could the SES impose a limit and say, for example, everyone is entitled to two calls for the same problem but no more?  That would be politically difficult and a person denied service would no doubt go to ‘A Current Affair’ or the Daily Telegraph with their story of woe particularly if they couldn’t afford to have the work done, or they were a tenant and the landlord refused to do the work, or they had arranged for it to be done but were still waiting for the tradie to find the time etc.   But if they want to law what would happen?

They could seek a remedy under administrative law in effect requiring the SES to perform its functions.  An agency like the SES has a wide discretion on how it gives effect to its Act and performs the functions required of it. If the SES had a clear policy that ‘we do x, but we don’t do y’ and if that policy was a reasonable approach then failure to do ‘y’ would be ok. For example, to take s 8(1)(aa) to its logical extreme, the SES should be out making sure everyone’s home is StormSafe but it doesn’t. A person could say that ‘given every time it rains my home floods the SES should come and do the repairs and that would be consistent with s 8(1)(aa) as it would be protecting ‘property from destruction or damage, arising from … storms’.   It may be consistent with s 8(1)(aa) but it doesn’t mean the SES has to do it.  The SES has to consider its resources and all the calls on those resources and make decisions on what it does and doesn’t do.   A fire brigade isn’t going to turn out because last time a person used the toaster the fire alarm went off and it might happen again; equally if it’s the rule being applied to everyone, the SES isn’t going to turn out because last time it rained a homeowner got wet so not responding “because it might happen” is fair enough if it’s consistently applied.  So the SES does have some policy, even if its unstated, on what it does and does not do. The SES responds to water coming in the home, but does not actually make homes StormSafe.

It’s probably the case that if the SES also had a clear policy on the number of responses they would make in non-life threatening situations that could also be defended but it would have to be expressly stated and made clear to a person who had made the relevant number of calls.   But if that was a policy position a person might find little sympathy if they sought some sort of order to require the SES to keep turning out.    As it is I’m not aware of such a policy and so it’s not, in my view, open to a unit to decide that a person is simply relying on the SES when they could take action to help themselves.

SES as a public good

As an aside, I do think it is legitimate to question why the state does provide an emergency service response to a single house impacted by a storm. If a fire breaks out in a home the community has an interest in making sure it’s extinguished to stop it spreading, but if water enters a roof why is it anyone’s problem but the homeowner?  If the homeowner has insurance, there is no doubt that the insurance company would respond if the SES did not as they want to minimise the loss and therefore the cost.  And if the homeowner is not insured, why isn’t that their problem?    That insurance companies have the most to gain no doubt in part explains why they pay 73.7% of the costs of providing the SES (State Emergency Service Act 1989 (NSW) s 24F; the State pays 14.6% and local councils 11.7%).   If the SES refused to turn out to events impacting upon a single home so that insurance companies had to set up their own response service they would, not doubt, protest the imposition of the SES Contributions.

So the SES is the insurance companies’ response agency but to avoid the old fashioned disputes that occurred when insurers provided fire brigades and brigades would only fight first where the property was insured, the SES is provided as a public good. That is, it is provided to everyone and it’s a public good because no one insurer or homeowner could afford to provide the state wide, and urgent response, that the SES can provide.   By requiring everyone to contribute to the cost (via taxes and premiums) everyone gets a benefit they could not afford if they had to pay for it on a ‘user pays’ basis.   If I understand my undergraduate economics studies, I think that is a classic example of a public good.

Conclusion

The question asked was:

Is the NSW SES able to refuse to provide assistance to storm affected properties, where the owner/resident has previously had the NSW SES provide assistance multiple times, but since then has not taken any action to to mitigate future issues?

On my current understanding the answer is ‘no’.  It could be ‘yes’ but only if the State decided to adopt and implement a policy consistently across the State.  It would certainly not be open at unit level to make that decision about a particular home owner, on what might be called an ‘ad hoc’ or case-by-case basis.


Categories: Researchers

Forcing entry to save a life

3 June, 2016 - 14:28

Today I’m asked:

To what extent can a forceful entry be conducted to save a life that either doesn’t want to leave or doesn’t want to live. This would also include forcefully handling the victim.

From a volunteer’s perspective a police officer would not be available to negotiate as time will not be permitting.  An example as attached:

https://m.facebook.com/story.php?story_fbid=1593978244249229&id=1571144583199262

I hoping that when a life is jeopardy. Logical steps would be taken. Although law isn’t always logical.

The issue in the video has nothing to do with the law – a matter I shall return to.

If what we are concerned about is liabilty for property damage, that is whether it’s ok to damage the car or home to get access to a person in need, the answer is clear- see

As for ‘forcefully handling the victim’, it is the law that any touching of another person, without either their consent or some other lawful justification or excuse is a battery, which is both a crime and a  tort (that is a civil wrong for which the person can recover damages without the need to prove actual injury).  So can you use force to pull someone from danger? Yes, because there is a lawful justification or excuse.

In Collins v Wilcock [1984] 3 All ER 374, Lord Justice Goff (the title ‘Lord Justice’ is a dead giveaway that this is an English case) said:

The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery… The effect is that everybody is protected not only against physical injury but against any form of physical molestation….But so widely drawn a principle must inevitably be subject to exceptions… to allow for the exigencies of everyday life [there is] … a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.

What is acceptable in the ordinary conduct of daily life will depend on the circumstances and the attitude of the court (should it ever get that far).  One example given is touching a person in order to get their attention.  Another example may be grabbing someone to stop them walking into the path of a bus or off a cliff, or to pull them from a burning building or car.

There is also an exception for actions done out of necessity.   That has been talked about often enough in the context of this blog with respect to providing health care where a person cannot consent.    Again it was Lord Goff who said (in In Re F [1990] 2 AC 1):

… 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.

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.

Necessity is a broad principle however and can form a defence to any tort or crime where the actions taken, although legally wrong, are intended to prevent a worse outcome and the actions are not disproportionate to the harm to be avoided.

 ‘An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained’.”  (Sir James Fitzjames Stephen’s Digest of the Criminal Law (1st. ed., ch. 3, art. 43; 9th ed., ch. 2, art. 11) cited in R v Loughnan [1981] VicRp 43).

So assume you grab a person out of harms way in circumstances that are technically a battery but your aim is to avoid worse consequences (ie their death) and you took no more action and applied no more force than was necessary to achieve that objective, then you may be able to rely on the defence of necessity.

But to return to Lord Goff and In Re F, necessity can’t justify action contrary to the known rational wishes of the informed person.  Rational does not mean you have to agree with them.  A person, in my view, could be quite rational if they say they would rather stay in their home and try to preserve the lives of their pets rather than evacuate and leave them to certain death. You may not agree but that doesn’t make the decision irrational.

What it’s going to come down to is the urgency of the situation.  Pulling someone from a burning building because it’s necessary to not only save their life but because the rescuer also doesn’t have time to debate the issue is one thing.  Pulling someone from a building that is likely to flood in the next few hours when they have quite rationally explained their desire to stay and given their reasons for the decision is another.

So let’s return to the video that my correspondent gave a link to.  The issue here is not the law. I would infer that the people in that video couldn’t have dragged the driver out of the car even if they’d wanted to but I’m sure if they had there would have been no legal wrong. The issue here is much more basic and it’s about the first rule of rescue, don’t put yourself in danger.   A number of those rescuers were washed away and we’re not told if they lived or died.  But it would have been quite reasonable to simply leave her, if she didn’t want to get out there’s no point killing yourself trying to force her.

Emergency services have various statutory defences that would protect their members but I haven’t discussed those as the video that was the stimulus for this question was about citizen rescuers.  But even so the cost in resources is, I suggest, a major reason why the Australian emergency (and in particular fire) services have resisted forced evacuations.  They all have various legislative powers to require people to evacuate but why would you want to divert resources and expose emergency service workers to heightened risk forcing people to leave who don’t want to?   For further discussion, see:

Conclusion

The question I was asked was ‘to what extent can a forceful entry be conducted to save a life that either doesn’t want to leave or doesn’t want to live. This would also include forcefully handling the victim?’   The answer has to depend on the circumstances.  There is a difference between pulling a person from a building that may in due course, be in the path of the oncoming bushfire or flood, particularly when they have a clear and articulated desire to stay;  and pulling someone from an apartment where the fire is well engaged.

For them the doctrine of necessity would be expected to provide a defence if in the circumstances both potential rescuers and the person needing to be rescued face an imminent peril (in the case of the video, being washed away by flood water) and the actions taken were reasonable and proportionate to avoid that peril and the harm done (an unlawful touching) was not disproportionate to the harm avoided (in this case death).

 

 

 


Categories: Researchers

Turning out when under the influence of alcohol

31 May, 2016 - 21:00

A correspondent asks for advice on the possible implications

… from a member of a volunteer fire service turning out under the influence of alcohol to an emergency call.  The scenario is that they did not drive to the station or drive the emergency vehicle.  I see responding to an emergency as a workplace even though a volunteer is not paid.  Besides the straight forward implications such as putting colleagues at risk.  Also What could be the implications for the officer in charge of the truck? Any advice would be greatly appreciated.

Being ‘under the influence of alcohol’ or having in the blood the prescribed concentration of alcohol are offences for drivers, but we’re asked to assume that this volunteer neither drove to the station nor did they drive the appliance so the relevant road rules are not the issue.

Even so if a person is ‘under the influence’ of alcohol, that is affected by alcohol they should not turn out.  The first implication is that they can be subject to the disciplinary proceedings of their service, provided the service has a policy on the issue.    So, for example, NSW Fire and Rescue’s Alcohol and other Drugs Policy says, at paragraph 3(1) ‘A firefighter must not: (a) come on duty while under the influence of alcohol or a drug…’ (Note my correspondent does not say he’s from NSWFR, I’ve just used their policy as an example).

It is well established that for the purpose of the Work Health and Safety legislation that has been adopted across all jurisdictions other than WA and Victoria, the term ‘worker’ includes a volunteer (see for example, Work Health and Safety Act 2011 (NSW) s 7).    As a worker, a volunteer must (s 28):

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

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

(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, and

(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.

That imposes obligations, enforced by the criminal law, to follow policy statements such as the relevant service’s alcohol policy and also not to undertake work that can impose a risk to others if the worker/volunteer is aware that they are affected by alcohol.

As for the ‘officer in charge of the truck’ I assume we’re talking about the crew leader/officer in charge.  Under WHS laws and no doubt service policy, people in the chain of command have obligations to both ensure that the policies are applied and also obligations to exercise their duties to reduce risks. It follows that a senior officer who failed to discharge his or her duties could also be subject to disciplinary action and, possible work health and safety prosecution (though to be fair, that is unlikely).

Conclusion

Not only a senior officer, but any member, should tell a member who is under the influence that he or she is not to turn out.

 


Categories: Researchers

New Zealand fire fighter charged over collision

31 May, 2016 - 20:23

A correspondent has drawn these two stories from New Zealand to my attention:

The story relates to reaction from the fire service after a volunteer was charged with ‘careless driving’ after a collision when responding to a fire call – ‘The driver of the car involved in the collision had to be cut from it, and was taken to hospital with broken ribs after the vehicle spun 180 degrees on impact’.   The article by Manch and Shadwell quotes the defendant’s solicitor saying:

“What more [he] could have done is beyond me, aside of course from just completely stopping at the intersection and not going through it.

“We want our emergency responders, such as ambulance drivers, police, fire, to get to the scene of an emergency as quickly as possible.

“If they’re paranoid about being charged with offences such as going through red lights, carefully, then they are not going to get to the scene of emergencies as quickly as they should do.”

A senior Wellington firefighter, who declined to be named, has confirmed that some firefighters in his brigade would now stop at red lights, fearing they might cause a crash.

“From instances in our brigade, drivers are taking particular care, even to the point that, when they get stuck in traffic, they’re turning their lights and sirens off and waiting for traffic to clear,” he told RNZ.

Of course we want emergency services ‘to get to the scene of an emergency as quickly as possible’ but as ‘quickly as possible’ has to take into account the driving conditions and the presence of other road users. No matter what the emergency, it can’t warrant killing or injuring other road users.    Further, an accident will delay the emergency services more than turning off the lights and sirens or stopping at a red light.    As a police spokesperson, quoted in the article says:

“No emergency justifies causing an accident. All responders should be aware that, if they crash, they do not get to the emergency, and they put other road users at risk.

But what else could the driver do?  Perhaps nothing but that is not for either his lawyer, or the police to determine.  People overlook the fact that the arbiter of what is ‘reasonable’ or ‘justifiable’ or ‘necessary’ (or whatever the relevant legal test is) is not the police but the court.  There is the idiom that ‘Not only must justice be done; it must be seen to be done’ – that is not that (or just) that outcomes should have the appearance of justice, but that people can see the process – that the process is open and public.  Courts are open to the public, anyone can sit in and watch proceedings and the judicial officer must hear both sides and must deliver the reasons for the decision in public.  That decision is then subject to review by the appeal courts, again in public.

Imagine if your loved one had been killed or injured in an accident involving an emergency service vehicle, and imagine too if the police said ‘we’ll they were proceeding to an emergency and we want to encourage our heroes so no charges will be laid’.  Whatever the merits of the case that would be outrageous.  The idea of the rule of law is that we are all ruled by law – including the emergency services.  The police can’t have a special rule or an attitude that ‘the firies or paramedics are part of the thin ‘blue line’ so there are special rules for them’.  There are indeed special rules, in Australia we’ve talked often about r 306 of the Australian Road Rules, but these are still part of the law, and the law still says that drivers must take care to avoid injury to other road users.    So if the circumstances suggest negligence (or worse) emergency service drivers can expect to be charged because it is the role of the police to put that sort of case before a court.  It is open to the defendant to put to the court the facts and arguments to the effect that the driving was not negligent and that the driver was taking all due care and did all that he or she could have done.  The answer to the question – was the driver guilty of the offence charged? – is then left to the community’s representatives, the jury.

Conclusion

The police spokesperson is correct ‘All responders should be aware that, if they crash, they do not get to the emergency, and they put other road users at risk’ and they can expect to face criminal charges particularly if someone is killed or injured.  If that reality causes drivers to go ‘…through red lights, carefully…’, ‘stop at red lights’ or ‘when they get stuck in traffic, … [turn] their lights and sirens off and waiting for traffic to clear’ then that has to be for the good.

 

 

 


Categories: Researchers

Legal action over Parkville fire

30 May, 2016 - 00:24

A correspondent who is a land surveyor:

… has a very big interest in both land law and emergency service law.  I was just reading this (https://au.news.yahoo.com/thewest/wa/a/31696560/woman-83-sued-over-parkerville-bushfire/?cmp=st (Amanda Banks, ‘Woman, 83, sued over Parkerville bushfire’ The West Australian (Online) 26 May 2016).  I’m not sure on WA land laws but I am assuming that there was an easement on this property? How is it possible to sue the servient tenement for this? Have you heard of this before? I’d love to find out more about this case, do you know where I can find out more information?

The gist of the story is that there is legal action over the Parkerville bushfire where, it is reported, 183 residents are suing for the loss of homes that were destroyed or damaged in the fire.  The article says

They are suing Western Power as owner of the allegedly defective pole where they claim the blaze started… The residents allege Western Power had a duty to maintain the pole in a safe condition.

They claim Thiess Services owed a duty of care under its contract for maintaining and inspecting the pole.

The amended writ also claims further and alternatively that Ms Campbell, as owner-occupier of the property on Granite Road, owed the plaintiffs a duty to take care to make sure the pole was in a safe and fit condition.

My correspondent refers to an ‘easement’ which is a right to use land for a particular purpose, in this case one would infer to run the power line across the land.  The ‘servient tenement’ is a fancy way of saying the owner of the land that was subject to the easement.   The fact that the new defendant is 83 is of course irrelevant but it makes the story more dramatic.

So how can this happen?  The answer is I can sue anyone simply by going to the court house and completing the relevant form and paying the relevant fee.  The Registrar isn’t there to review my claim and decide whether or not it is legally tenable, that is the role, ultimately, of the judge.    So the relevant plaintiffs can sue her simply by naming her on the claim. Equally the other defendants could have joined her as a defendant.

We don’t know if the defendant holds a ‘servient tenement’, may be Western Power say they don’t have an easement and it wasn’t their pole, but hers.  We don’t know what the defence has been but if that is the case, the parties may have wanted to join this defendant in case that was indeed the case.

Why would they do that?  Academics and High Court judges may like to think tort law is all about principle and apportioning liability where it should fall.  Others would realise it’s all about trying to find defendants with money.  Further defendants with money (insurance companies) try to find other defendants to share the losses.  Remember that the primary obligation of the board of an insurance company is to earn an income for their shareholders, not to waste money on issues of principle.    So Western Power and Thiess are being sued and they claim they are not liable; a prudent plaintiff joins the land owner just in case it turns out Western Power and Thiess are correct.

So what that she’s 83.  She owns a property that is worth something and more importantly, and I’m sure no doubt, she has an insurance policy and it is that insurer who the plaintiffs and other defendants want to bring into the action.  It’s nothing personal.

Now if she wins, and if she wins because the pole really did belong to Western Power and she was just the owner of the ‘servient tenement’ and if that’s decided by a Court of Appeal or the High Court, then lawyers and academics will say ‘you can’t sue the servient tenement’ but we don’t mean ‘you can’t name someone on the writ’, we mean ‘you can’t win if you do’. It’s like saying to someone ‘you can’t swim the English channel but you can try if you want to’.   It’s not that “can’t” means ‘not allowed to’ it means ‘you won’t actually succeed’.  Of course most people can’t swim the English channel, but some can and equally one might say ‘you can’t [successfully] sue’ but the right facts and the right lawyer, and the right judge in the right circumstances may well mean that there is success and perhaps a change in the law and sometimes just a sufficient difference from the ‘norm’ that the outcome is different.

It’s really important to distinguish the allegation from the outcome.  Starting court proceedings is simply to make an allegation. The plaintiffs here are alleging negligence by various parties.  They can do that but it doesn’t mean the claims are well founded.   Where can one find out more about the allegations?  At this stage the only place would be to approach the lawyers, who no doubt would not be willing to discuss it, or seek access to the files in the Supreme Court which are also unlikely to be given out to someone who happens to be interested.  If the matter goes to court, and if a judge makes a ruling on it, the judgment will be publically available, but this is clearly early days yet and there is much to go through before the matter ever gets near a judge.

Conclusion

Like most litigation in these circumstances this will turn out to be a fight between insurance companies.  Of the 183 plaintiffs most, if not all, are probably actually represented by an insurance company, an insurance company that has paid out and now stands in the shoes of the insured. They are not suing ‘on behalf’ of the insured, they are suing ‘as’ the insured and their aim is to get back money they have paid.  Thiess and Western Power and, no doubt, the new defendant will also not really be the defendants it will be their insurers.  It’s all about shifting the money.  Having a headline ’83-year-old woman gets sued’ sounds dramatic, but doesn’t begin to tell anything relevant about the story, and assuming facts (such as that there was an easement) also doesn’t help.  We’ll have to wait for the matter to be resolved to learn anything and of course, if it settles (as most cases do) there will never be any public exposition of what happened.

 


Categories: Researchers

Road Rule exemptions for Victorian ‘enforcement vehicles’

24 May, 2016 - 15:30

Today’s news from Victoria involves a tragic, fatal, multiple vehicle accident on a Melbourne freeway – see ‘Petrol tanker crash, rollover on Calder FreewayHerald Sun; and; see also ‘Calder Freeway crash: One dead after petrol tanker rolls, fuel spiltABC News (Online).

A correspondent who was there says:

I was in the vicinity of the area and on my drive into work I observed 2 VicRoads vehicles attempting to get to the scene.   In this instance, both were unmarked (Though they do have marked vehicles as well). They were both using their purple and white strobe lights, but I didn’t hear any sirens.  There seemed to be confusion among other drivers- they’re not red and blue as people would expect, and I noticed a lot of people seemed to just ignore them.

Where do VicRoads fit in with the Regs in relation to emergency vehicles and the use of lights and sirens?

The relevant rules are the Road Safety Road Rules 2009 (Vic).   On this blog we have often discussed the application of the road rules to emergency vehicles (ambulances, fire appliances etc) but a VicRoads vehicle is not an emergency vehicle.  For the purposes of the Victorian rules it is an ‘enforcement vehicle’ (Road Safety Road Rules 2009 (Vic) r 4).

Drivers of other vehicles have an obligation to move out of the path, to keep out of the path and to give way to an enforcement vehicle that is displaying a flashing ‘magenta’ (ie purple) light (Road Safety Road Rules 2009 (Vic) rr 78 and 79).    The driver of an enforcement vehicle has the same exemption from the road rules as a police officer or the driver of an ambulance (Road Safety Road Rules 2009 (Vic) r 306A), that is

A provision of these Rules does not apply to the driver of an enforcement vehicle … if –

(a) in the circumstances—

(i) the driver is taking reasonable care; and

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

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

Rules relating to parking and pedestrians also do not apply to enforcement workers when on the road in the course of their duties (Road Safety Road Rules 2009 (Vic) rr 307 and 308).

An enforcement vehicle may be fitted with a siren (Road Safety (Vehicles) Regulations 2009 (Vic) Schedule 2, cl 34) and ‘may be fitted with any light or reflector’ (Road Safety (Vehicles) Regulations 2009 (Vic) Schedule 2, cl 118).

Conclusion

The driver of an enforcement vehicle operating its magenta light and/or siren has the same right of way and exemptions as the driver of an ambulance, police vehicle or fire appliance.  It follows that ‘to just ignore them’ is to commit an offence. Having said that, however, I don’t mean to suggest that anyone at this accident did commit an offence.  Making way for the vehicles given the congestion would not have been easy, if it was possible at all and I certainly don’t know and can’t imagine the circumstances that everyone was facing.   I would also expect that even if there was an offence, a police officer at the scene had more important things to do that try to write an infringement notice.


Categories: Researchers

Road traffic exemption – Who determines if it is reasonable that the provision should not apply?

22 May, 2016 - 19:38

A correspondent from WA asks for an opinion regarding the Road Traffic Code 2000 (WA) and, in particular, its application to the driver of an emergency ambulance.  Rule 281 says:

A provision of these regulations does not apply to the driver of an emergency vehicle that is not being used for official duties by a police officer if –

(a)  in the circumstances –

(i) the driver is taking reasonable care; and

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

and

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

My correspondent asks:

Who determines if it is reasonable that the provision should not apply?

For example: An ambulance crew is instructed to drive under emergency conditions – lights and sirens – from an ambulance station to a nearby hospital in order to transfer a patient to another hospital.  Under normal driving conditions this journey, from the ambulance station to the hospital, would take approximately three minutes.  The patient is in a medical facility being treated by doctors and nurses. Can claiming this exemption be considered reasonable particularly if the patient is not ready for immediate transportation.

On raising this scenario with my employer the feedback received was that if a Doctor instructs an ambulance to drive under emergency conditions this removes the liability from the driver of the ambulance. In your opinion is this interpretation by my employer correct?

I’m not sure what my correspondent means by ‘liability’; so I’ll address the first question – Who determines if it is reasonable that the provision should not apply?

The first ‘person’ who has to make that determination is the relevant service.  Each service must have a policy (stated or unstated) as to when a ‘response’ is required.  In the context of an ambulance service it might be ‘respond to every triple zero call’ or perhaps ‘response’ driving is only authorised to calls that have gone through some triage process and the coordinator has determined the urgency of the required response.    The policy may be general, requiring officers in each case to determine how the policy applies to the given job, or it may be specific where the response status is actually given by the ComCen or supervisor when the job is allocated.   Whatever the policy it will be the first benchmark.  If a traffic ticket (for example a speed camera ticket) is issued the service is likely to, or I would say should, ask the driver what was happening.  If the driver confirms that they were ‘responding’ to the job the service should consider whether that accorded with their policy and if it did, write to the police to have the infringement notice withdrawn.

The second, but beyond doubt the most important judge of whether ‘it is reasonable that the provision should not apply’ is the driver.  Regardless of the response policy, regardless of the direction from ComCen, regardless of the pressure from the other crew members, it is the driver who has to decide whether or not he or she should take advantage of the exemption.   If the driver is approaching red traffic lights and considers that he or she should not proceed, the he or she should stop, turn off the warning devices and wait for the green traffic light.  The driver is always responsible for the safety of the vehicle, the other crew members, other road users etc.  I shall return to this later.

The next person called upon to decide whether or not ‘it is reasonable that the provision should not apply’ is a police officer.   A police officer who sees an ambulance drive contrary to the road rules, or is reviewing the speed or traffic light camera photo must decide whether or not, in that officer’s view, the conduct was ‘reasonable’.  To make that decision he or she should consider any representations as to the service policy and training and the task that had been assigned, but ultimately it is their call.  If they think that the driver was not taking reasonable care or the rule that driver ignored should not have been ignored, then they will issue a Traffic Infringement Notice and further, would decline to withdraw it when asked to do so.

Anyone who receives a traffic infringement notice can pay it, or they can declare that they are not guilty of the offence and elect to have the matter dealt with by a court.  That applies to the driver of an ambulance too, so if the driver thinks that the police officer was wrong they can elect to have the matter determined by a court.    In that case the matter will be heard by a Magistrate.  The magistrate will hear from police as to why they think the conditions necessary for r 281 were not met, and then hear from the driver and, if he or she is supported by the ambulance service the magistrate would also hear from the service officers, as to why they think what the officer was doing was reasonable.  The magistrate will explain what he or she thinks are the relevant facts and legal considerations and will determine whether or not r 281 does provide a defence in that particular case.

If either party, the driver or the police, disagree with the Magistrate’s ruling on what the law requires they could appeal.  In most jurisdictions an appeal from a Magistrate goes to a single Supreme Court Judge.  If that occurred the Judge would have to determine whether or not, in the circumstances, r 281 did apply to give the driver a defence.

If one of the parties thinks that the judge got the law wrong they may appeal to the Court of Appeal in which case three judges will review the decisions of the lower courts and give a statement as to what factors should be considered when deciding whether or not a provision of the Road Traffic Code should be applied to the driver of an emergency service vehicle.

Finally, if there is still disagreement, and if the disgruntled party can convince the High Court of Australia that there is a real, complex issue of law, and that perhaps courts in different states are taking different approaches to what is meant to be a scheme of national road rules, then there could be an appeal to the High Court.  The judges of that court will give the final answer of what are the relevant considerations that a service or police officer has to consider when deciding whether ‘it is reasonable that [a] provision should not apply’.

It should be noted that appeals to a Court of Appeal or the High Court of Australia are incredibly unlikely.  The value of a traffic infringement notice means such a fight just isn’t worth it and the High Court is unlikely to be very interested in sitting as the 4th court to determine a road traffic matter.  So appeals to that level of court are unlikely, but they are theoretically possible.  Most people, of course, don’t take these matters further than asking the police to withdraw the traffic infringement notice, and if they refuse to do so, they just pay the fine.

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 make, 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’.

Let me then turn to the scenario – is it ‘reasonable’ for an ambulance to rely on r 281 and use lights and sirens to require other vehicles to give way and perhaps travel contrary to the normal road rules to travel 3 minutes to a place where the person is already receiving medical care?  I can’t answer that (I’m not one of the people listed above) but I can have some thoughts on how police or a magistrate may answer it.  The first thing to consider is that the treating doctor, who is with the patient, has requested an urgent ambulance response.   That would certainly be a factor to consider.  Then one would want to consider the traffic conditions and the time of day, is ‘response’ driving really going to make a difference to the response time? It’s going to cause other drivers to take steps to get out of the way, it will increase the risk.  If you’re driving through a congested area that’s full of cars and pedestrians your claim that you did not need to honour the 40km/h speed limit may not be ‘reasonable’.  On the other hand, if it’s a 3-minute drive in normal conditions but normal conditions are on a road with an 80km/h speed limit, it may be quite reasonable to put the lights and sirens on and travel at 100km/h.

Let me now turn to the second question – “On raising this scenario with my employer the feedback received was that if a Doctor instructs an ambulance to drive under emergency conditions this removes the liability from the driver of the ambulance. In your opinion is this interpretation by my employer correct?”   As I said I’m not sure what they mean by liability, so I’ll address a couple of possible interpretations.

  1. Will the doctor’s request mean that the paramedic can’t get a traffic infringement notice? Answer, ‘No’. As noted above that a treating doctor has requested an urgent response may mean that the paramedics and the service can have more confidence that they are required – more than when responding to a call from an untrained citizen who’s rung triple-zero, but that is only one factor to be considered.  The issue is about the nature of the driving; What rule the driver is seeking to ignore? What are the driving conditions? The requesting doctor knows none of those things.   A request for an urgent response means ‘as soon as you can safely get here’ but it can’t be a binding direction.
  2. Will the doctor’s request mean that the paramedic isn’t liable if there is an accident? No. The driver of the ambulance is the person responsible for how that ambulance is managed in traffic.  If there is a collision or if, at the end of the day, the police (or magistrate, or judge, or court of appeal or High Court of Australia) think that in the circumstances r 281 did not apply, then it is the driver who will pay the fine, or worse.
  3. Will the doctor’s request mean that the paramedic or ambulance service isn’t liable to pay damages to anyone injured in an accident? Again the answer is ‘no’. It is the driver who must take ‘reasonable care’ and no-one can relieve him or her of that obligation.  The paramedic is not the doctor’s servant acting under the doctor’s direction or control.

Conclusion

The status of the doctor’s request that an ambulance attend as a matter of urgency is just one factor to be taken into account in deciding, in any given case, whether or not response driving is justified and, if it is, whether the application of any particular rule should be waived.   The doctor’s request for an urgent response in no way relieves either the ambulance service, or the paramedic driver from the need to consider the particular circumstances and whether or not response driving is ‘reasonable’.


Categories: Researchers