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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: 13 hours 18 min ago

A ‘reasonable excuse’ to refuse to comply with a direction from the South Australian Country Fire Service

14 November, 2015 - 16:26

Members of a CFS brigade have recently discussed the powers of the CFS Incident Controller at the scene of an emergency.  They say:

The Fire and Emergency Services Act 2005 (SA) s 97 seems to be sweeping and powerful, giving a CFS member who is OIC at an incident wide powers to do, among other things, enter any land, building or structure and take possession of any water. If a person fails to comply with a requirement or direction of the Incident Controller without “reasonable excuse”, he can be prosecuted and fined a significant amount ($20,000).

Our discussion cantered around the wording “‘reasonable excuse” particularly in the context of the following scenario.

A rural householder has made good provision for defending his property with sprinklers, water tanks, clearing a firebreak and doing a good job as far as preparing his property to withstand fire attack.

Neighbours on the other hand, have done little or nothing to mitigate fire risk. They have no water source and have not done any significant fire reduction clearing.

Fire breaks out near the neighbour’s property, the CFS attends and the Officer in Charge determines that he requires the water supply of the first householder (who has made good provision) in order to fight the fire at the neighbour’s property (who have made little provision).

The first householder refuses to allow the CFS to take possession of his water supply, citing that he may require it himself for defence of his own property. Taking his water will neutralize much of the preparation work he has done as a responsible landowner, and being asked to give it up to protect the property of those who have failed to make any worthwhile provision is unreasonable.

In this scenario, would the first householder be seen in law to have a “reasonable excuse” for failing to comply with the requirement of the CFS Incident controller?

The law distinguishes between a ‘subjective’ test and an ‘objective’ test.   Where a legal test is ‘subjective’ it depends upon what a person actually believed, thought or knew. Where the test is ‘objective’ the question is what a hypothetical reasonable person would or could have believed, thought or knew.   The reference to ‘reasonable excuse’ means an excuse judged objectively that is not an excuse that (in this case) the defendant thinks is reasonable but whether there was objectively good reasons for their action.

The issue here, ie whether someone is guilty of the offence set out in s 97(4), is an issue of criminal law. The Crown would have to prove that a requirement or direction was given and that the action of the defendant was not ‘reasonable’. The Crown would have to prove that case ‘beyond reasonable doubt’ (Woolmington v DPP [1935] UKHL 1).   The question of whether or not the excuse offered by the defendant was reasonable in all the circumstances would be a matter for the jury (if there is a jury) or the judge to decide.

In Taikato v R (1996) 186 CLR 454 Chief Justice Brennan and Justices Toohey, McHugh and Gummow said ‘what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse”…’ applied. Further they said

‘the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence…’

Justice Dawson said ‘A reasonable excuse is no more or less than an excuse which would be accepted by a reasonable person.’

It follows that one cannot say in advance whether this would be a ‘reasonable excuse’ for failure to comply with a direction from the CFS.   I can say that it would certainly be an argument worth putting before a court if the property owner were charged.   It would certainly be consistent with the aim of the legislation and the national strategy on disaster resilience that the homeowner wants to keep the water for the purposes of protecting their own assets; it may be different if they wanted to keep the water so they could sell it to the highest bidder or because they didn’t like the neighbour and wanted to see their house burn. It may also be different if the CFS wanted the water to fight the fire at a defensible place in order to save the properties involved and the local town rather than taking person A’s water to protect Person B’s property.

It should be noted a SACFS officer may ‘take possession of, protect or assume control over any land, body of water, building, structure, vehicle or other thing…’ (s 97(2)(b)) and may ‘take and use water or any other fire extinguishing material from any place (s 97(2)(g)).   There is an obligation to consult with the occupier of any private land where such action is to be taken (s 97(6); on what it means to ‘consult’ see ‘Firefighters and the need to consult with landowners in WA’ September 1, 2015)). Subject to that consultation the SACFS does not need the property owners consent or cooperation.   The offence only occurs if the person fails ‘to comply with a requirement or direction’. The CFS would have to ‘require’ or ‘direct’ the property owner to do, or refrain from doing something before the issue of ‘reasonable excuse’ arises.   If they can take the water without the occupier’s cooperation, they are free to do that.   (Compare that to the situation in WA where the bush fire brigades cannot take water that is ‘for use at a school or the domestic supply of an occupier contained in a tank at his dwelling-house…’ Bush Fires Act 1954 (WA) ss 39(1)(e) and 44(1)(d)).

Finally, the issue of whether taking water from a property, thereby leaving the property owner vulnerable would lead to civil liability was originally an issue in the litigation following the 2003 Canberra bushfires. That matter was not, ultimately, decided by the court but for a discussion of those issues readers may be interested in the paper I presented at the 2010 Australian Fire and Emergency Services Authorities Council (AFAC) and Bushfire CRC annual conference in Darwin. You can download that paper here: Legal consequences from the 2003 Canberra fires’ or, for a shorter version, the powerpoints I used when delivering the paper’s findings.

Conclusion

Would the desire to keep water that had been stored for the purposes of fire fighting be a reasonable excuse to refuse to comply with any direction or requirement to make that water available to the CFS in the circumstances described? As the High Court judges noted, that is not an question you can answer until it is ruled upon by a judge or jury but if I were acting for a property owner in the circumstances described, I’d certainly argue the point.


Categories: Researchers

Work health and safety responsibility for Western Australian Bush Fire Brigades

14 November, 2015 - 15:16

A correspondent from Western Australia writes:

As a Bushfire Brigade is established and registered by a Local Government in Western Australia:

  1. Is the Local Government that establishes the brigade under the Bush Fires Act responsible for ALL legal obligations for that brigade, including but not limited to – OHS legislation, training, insuring, managing, all policies and procedures and authorisations of senior members?
  2. Can a local government claim that Local Government policies cannot be applied to that brigade because its policies apply only to staff and not volunteers?
  3. Who is ultimately responsible when things go wrong (like the Black Kat creek incident, or Craig Sandy incident) and who will Worksafe/coroner hold responsible?

Not sure if you can answer these but I would be very interested and I’m sure so would most West Australian volunteer Bushfire Fighters.

It’s true that in Western Australia, unlike say New South Wales and Victoria, bush fire brigades are established and run by local government authorities (Bush Fires Act 1954 (WA) s 41).   The Local Government is to ‘provide for the appointment or election of a captain, a first lieutenant, a second lieutenant, and such additional lieutenants as may be necessary as officers of the bush fire brigade, and prescribe their respective duties’ (s 43). The power of brigade officers to take steps to respond to a fire are set out in s 44 so they are not dependent on local government by-laws.

A local government can spend money on equipping a bush fire brigade (s 36). It must ensure that a compensation policy is maintained for the benefit of volunteer fire fighters who might be injured in the course of their duties (s 37).

A local government may appoint a bush fire control officer (s 38). A chief bush fire control officer fro a local government area can be appointed by the FES Commissioner (s 38A). A bush fire control officer has extensive powers to facilitate the response to a fire (s 39). Further, s 39A says:

On the outbreak of a bush fire at a place within or adjacent to the district of a local government, the bush fire control officers, bush fire brigade officers, or bush fire brigade members, of the local government, or as many of them as may be available may, subject to this Act, take charge of the operations for controlling and extinguishing the bush fire or for preventing the spread or extension of the fire.

Bush fire liaison officers are departmental officers designated as a bush fire liaison officer by the Fire and Emergency Services Commissioner (s 12). They, in turn, must act subject to any directions of the Commissioner (s 13(1)).   Where a bush fire liaison officer has taken control of the response to a bush fire, all ‘officers and members of a bush fire brigade who are present at the fire are … subject to, and are to act under, the authorised person’s orders and directions’ (s 13(6)).

Let me now turn to the questions:

  1. Is the Local Government that establishes the brigade under the Bush Fires Act responsible for ALL legal obligations for that brigade, including but not limited to – OHS legislation, training, insuring, managing, all policies and procedures and authorisations of senior members?

No, they are not. Certainly they are responsible for maintaining the workers compensation type insurance and setting the rules but some of the conduct of the Brigade is subject to direction from the FES commissioner.

OHS responsibilities in particular don’t ever fall to one agency, work health and safety is everyone’s responsibility.   A local government is responsible for taking steps to ensure that there is a safe work environment for employees (s 19) and non-employees affected by the employer’s work (s 21).   Western Australia has not adopted the Model Work Health and Safety Act 2011. In the jurisdictions that have the word ‘worker’ includes a ‘volunteer’. WA still has the distinction between employees and non-employees and volunteers are not employees.   Even so local governments are employers and their work involves managing the bush fire brigades so they have an obligation to ensure that ‘the safety or health of a person, not being … an employee … is not adversely affected…’ by the work of the local government authority.   So in short they have OHS responsibilities for the brigade, but so do bush fire control officers, bush fire liaison officers and ultimately the FES Commissioner.

What they are responsible for depends on the work they are doing and what is their work. So where a bush fire liaison officer has taken control of fire fighting and is direction the actions of a bush fire brigade then he or she has an obligation to ensure that he or she does not adversely (and unreasonably) affect the health and safety of those being commanded.

Where a brigade is maintained entirely as part of a local government with no independent legal existence, then for all practicable purposes one can answer the first question as ‘yes’ even subject to what I have said, above. That is for all practicable purposes the brigade is ‘owned’ by the local authority so yes they are ultimately responsible for ensuring the brigade and its members meets its legal obligations.

The position could be confused by s 42A which says ‘Any group of persons, however constituted and whether incorporated or not, may be established as a bush fire brigade under section 41(1) or 42(1).’ If an incorporated entity was ‘established as a bush fire brigade’ then it would have a separate legal entity to the local government authority. As a separate legal entity it could sue and be sued and it’s governing board would have obligations to the entity to ensure legal compliance.   I’m not sure if any bush fire brigades are constituted as separate legal entities but if they are then the principal obligation to meet legal obligations will lie with that entity and the role of local government would depend on the arrangements between the two entities.

  1. Can a local government claim that Local Government policies cannot be applied to that brigade because its policies apply only to staff and not volunteers?

Yes. I’m sure many volunteers would not want to be bound by local government policies that are directed to employees. Volunteers are not employees so it must be the case that a local government authority can and would have policies that apply only to employees.   Whether a particular policy would, or should, also extend to volunteers would be a matter of interpretation and context, but on the face of it, it must be the case that some policies cannot be applied to a brigade of volunteers because for whatever reason, it is intended to only apply to staff.

  1. Who is ultimately responsible when things go wrong (like the Black Kat creek incident, or Craig Sandy incident) and who will Worksafe/coroner hold responsible?

The ‘Black Kat creek incident’ involved the death of a firefighter in a ‘burnover’ (see ‘Review into death of Albany firefighter Wendy Bearfoot finds fire agencies errors repeatedPerthNow, October 12, 2013). The ‘Craig Sandy incident’ involved the death of firefighter Craig Sandy in a motor vehicle accident between fire appliances (‘Firefighter’s death an accident, coroner rules,’ ABC Online, 8 July 2004).

No-one is ‘ultimately responsible’ when events like this occur. People and agencies are responsible for the parts they are responsible for.   Without commenting on the details of a particular case, where a fire fighter is killed in a motor vehicle accident the driver is responsible for the decisions he or she made as a driver; the passengers are responsible for their behaviour if that contributed to the accident; the agency is responsible for the policies it may have had in place to ensure driver’s are qualified and trained and fatigue is managed; a despatcher may be responsible for the decisions made about which appliances to respond from where to where.

Neither WorkSafe nor the coroner hold anyone responsible – at least not in theory. Worksafe is an enforcement agency, they may allege that someone or an agency has failed to ensure a safe workplace or otherwise failed to comply with the Occupational Health and Safety Act but mere allegation does not make it so.   Whilst these matters are often ‘uncontested’ a person who is alleged to have committed an OHS offence has all the protections of any other defendant. They are entitled to deny the allegation and the prosecution must prove the case, beyond reasonable doubt, in a court of competent jurisdiction (see Kirk v WorkCover (NSW) [2010] HCA 1). It is the court, not WorkSafe, that determines whether or not the person or agency has committed the offence alleged.

Coroners do not ‘hold’ people responsible (see ‘What is the difference between an inquiry and a court?’ (June 24, 2015)). Coroners have jurisdiction to investigate deaths and fires. According to the Coroners Act 1996 (WA) s 25, the principle task of a coroner investigating a death is to find:

(a) the identity of the deceased; and

(b) how death occurred; and

(c) the cause of death; and

(d) the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1998.

It is not their job to find out who is ‘responsible’ for the death. In reporting his or her findings, a coroner must not to suggest that any person is or should be liable to another nor can the coroner ‘suggest that any person is guilty of any offence’ Coroners Act 1996 (WA) s 25(5)).

‘A coroner may comment on any matter connected with the death including public health or safety or the administration of justice’ (Coroners Act 1996 (WA) s 25(2)).   That does give the coroner a wide-ranging discretion to investigate matters in order to make recommendations to avoid further deaths or fires.   In making that inquiry the Coroner is not limited by the law; if he or she were the value of the inquest would be lost. It may be that under law person ‘a’ was responsible for some conduct but the coroner may want to say that this allocation of responsibility was unhelpful and that it should have been person ‘b’. Is that ‘holding’ ‘b’ responsible?  Alternatively the coroner may say person ‘a’ was responsible for something but failed to do whatever he or she should or could have done to avoid the tragedy.   The coroner may then make recommendations on what might be done to better equip a person in the position of person ‘a’ so that the identified failings are not repeated. Is that ‘holding’ ‘a’ responsible?

It follows that the question ‘Who is ultimately responsible when things go wrong (like the Black Kat creek incident, or Craig Sandy incident) and who will Worksafe … hold responsible?’ cannot be answered in the abstract. Each case will depend upon its own facts.   Equally no–one is ultimately responsible, everyone is responsible and multiple people could be identified as having contributed to the tragedy, again each case will depend on its own facts.

As for the question ‘Who … will [the] coroner hold responsible?’ the answer is ‘no-one’. Coroners investigate deaths and fires to make recommendations to avoid future tragedies; they cannot determine legal rights and cannot hold anyone responsible. What findings the coroner might make would again depend on the particular facts of each case.


Categories: Researchers

Workplace first aid – don’t ask; don’t tell?

8 November, 2015 - 19:35

This question comes from a correspondent who tells me they are ‘trying to formulate a best practice policy for a new organisation’. They say:

I have heard a variety of discussion in regard to whether someone that has become ill or that has been injured at work should routinely receive first aid or at least be checked by a first aider before leaving for home, GP or Hospital.

One theme (that I am more familiar with) is that all employees should be seen by a workplace first aider if they are sick or injured to insure their safety E.g. How do we know they are well enough to go home? How do we know they didn’t hit their head an hour ago and now want to go home ‘sick’ with a headache? (But should be attending hospital), How do we know they are well enough to drive home? What if no one is at home to care for them? And many more scenarios.

The second emerging theme I am hearing in this risk averse era is don’t  ask/insist a sick or injured person to be seen by a workplace first aider before going home on sick leave as it will greatly increase an employer’s liability if something goes wrong. – E.g. If we have not asked or  insisted they see a first aider before going home sick or injured and they die on the way home or get worse or crash – none of it will be the employers  fault because we have not interfered in their wanting to go home sick.

(In the old NSW Act 2000 section 24 seemed to tell us everyone should receive first aid and no one including employers should hinder this process,  Is this section incorporated at all into any section of the new NSW act do you think? )

Anyone who thinks not asking questions because that will some reduce liability is kidding themselves. The law is concerned with what a person knows, or ought to know. The issue is of course risk assessment. Any policy that is silly and unhelpful is likely to be ignored so a policy that says ‘everyone has to be checked’ is not going to be complied with.

If I turn up at work with a bit of a tickle in my throat and a couple of hours later decide I’m actually unwell but can’t go home until the company first aid officer comes to see me that might be problematic. Not if it’s easy to see them, and I can see them quickly, but if I have to wait for hours or travel across a site it’s less likely to be complied with. It will also turn on the work practices. In my work, I’d just go home. Other work places that may not be so easy and to be allowed to take the ½ day ‘sick’ rather than being seen to abandon my job, I may need to see a first aider, or a supervisor or someone.

As for ‘don’t ask/insist a sick or injured person to be seen by a workplace first aider before going home on sick leave as it will greatly increase an employer’s liability if something goes wrong’ that’s just rubbish. First workers compensation is ‘no fault’. If the person gets injured at work then the employer is liable regardless of those circumstances. If they are involved in a crash because they weren’t fit to drive, or they die of their injuries, the fact that the workplace had a policy to actively discourage seeking assistance is going to lead to more risk. Workers compensation may be no fault but if there is outrageous negligence then there can be liability for greater damages as well as criminal responsibility under Work Health and Safety legislation.

Section 24 of the Occupational Health and Safety Act 2000 (NSW) (now repealed) said:

(1) A person must not, by intimidation or by any other act or omission, intentionally hinder or obstruct or attempt to hinder or obstruct, without reasonable excuse:

(a) the giving or receiving of aid in respect of the illness or injury of a person at work, or

(b) the doing of any act or thing to avoid or prevent a serious risk to the health or safety of a person at work.

(2) A person at a place of work must not, without reasonable excuse, refuse any reasonable request:

(a) for assistance in the giving or receiving of aid in respect of the illness or injury of a person at work at that place of work, or

(b) for the doing of any act or thing to assist in the avoidance or prevention of a serious risk to the health or safety of a person at work at that place of work.

That in no way said everyone had to receive first aid, only that no-one could stop a person from giving, or receiving first aid.   Today the relevant rules are in the Work Health And Safety Regulation 2011 (NSW) r 42 which imposes a duty on the PCBU to ensure that there are sufficient first aiders and first aid equipment for the workplace taking into account the nature of the workplace and the risks involved.  That doesn’t mean every worker has to go and get first aid for every single minor event.

Any organization that thinks a blanket policy will solve their problems has missed the whole point of modern health and safety legislation and that is that it is about risk assessment. A PCBU needs to create a culture where safety and health and concern for workers is paramount. Where the issue is not ‘what will lead to liability?’ but ‘what will lead to a safer work environment and a better supported workforce?’   Do we have the resources so that our staff can access first aid support if an when they need it? Do we trust them to make judgments about their own health and safety but they know for example that if they are injured at work we want to know about it to ensure that they are safe and that any problems with the way work is organized are dealt with? If we want them to report do we make it easy, non-punitive and ensure that they understand that it will not be a paper-work nightmare or lead to personal repercussions?  If they want to go home sick do they understand that their colleagues are interested in their well being and not just wanting to check to make sure they aren’t shirking?

If you want everyone to see a company first aider are there enough of them and where are they located. What are the procedures for signing off ‘sick’? If you are worried about injuries what are the sort of injuries that might occur. A packet of band aids may be enough if the worst anyone’s going to suffer is a paper cut, but you may want to ensure that there are more detailed procedures if the business carries a higher risk.  So a policy that ‘that all employees should be seen by a workplace first aider if they are sick or injured’ seems impracticable say at my workplace, but perhaps not in others. It’s a question of risk assessment.

On the other hand a policy that discourages staff from seeking assistance, because of some belief that  ‘don’t ask/insist a sick or injured person to be seen by a workplace first aider before going home on sick leave as it will greatly increase an employer’s liability if something goes wrong’ is like arranging your own firing squad, issuing the bullets and saying ‘fire’.


Categories: Researchers

National Registration for Paramedics – or perhaps not.

6 November, 2015 - 20:31

Paramedics Australasia is celebrating an announcement from the Council of Australian Governments (COAG) to move toward national paramedic registration see ‘Australian Paramedics to be Nationally Registered‘ (6 November 2015), but is that really the case? The official communiqué from COAG says (p 2):

Options for national registration of the paramedic profession

Health Ministers discussed options for the registration of paramedics and, on a majority vote, the meeting agreed to move towards a national registration of paramedics to be included in the National Registration Accreditation Scheme with only those jurisdictions that wish to register paramedics adopting the necessary amendments. Ministers agreed that work would need to come back to AHMAC for consideration. This would include the consideration of implementation of the recommendations of the NRAS Review, resolution of the scope of the paramedic workforce and the development of vocational as well as tertiary pathways. It was noted that NSW will reserve its right to participate. The Commonwealth dissented from the decisions as it is not consistent with the principles of the NRAS as a national regulatory reform.

This does not say that registration has been settled, but that the majority of ministers agreed ‘to move towards a national registration of paramedics’ but only for ‘those jurisdictions that wish to register paramedics’! This may be registration under the Australian Heath Practitioner Regulation Agency for some, but it does not yet look like national registration.   Further it’s been agreed that ‘work would need to come back to AHMAC for consideration’! Neither NSW or the Commonwealth appear to be on board!

I’m all for paramedic registration; see

I can therefore see that this step is some cause of celebration. I understand that Paramedics Australasia may have ‘inside knowledge’ on the thinking and intention of the Ministers when I only have the COAG communiqué. But, based on that communiqué, it appears that whilst there has been another, tentative step toward paramedic registration, it is still not ‘national’ and there is still work to be done. it looks to me like it’s a bit too early to be popping the champagne corks.


Categories: Researchers

“No liability for police shooting” – number 2 and “Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police” – Part 5

5 November, 2015 - 00:04

This post again raises the issue of self-defence (see Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police – Part 1 (October 5, 2015)) and the liability of police for shooting someone in the course of their duties.

In No liability for police shooting (February 13, 2013) I reported on the unfortunate circumstances of Mr Crowley. Mr Crowley was mentally ill when police approached him. The police were aware that there had been concerns for Mr Crowley’s safety but also, due to his behaviour, the safety of the community.   Although Mr Crowley was not ‘an offender’ (he would not be criminally liable for his actions) he was posing a threat and actually struck the police. Eventually a police officer discharged his firearm and Mr Crowley was left a quadriplegic. At trial Mr Crowley was successful in alleging that the police were negligent in the way they responded to him and the situation. On appeal that decision was reversed, the ACT Court of Appeal finding that the police owed a broader duty to ensure community safety and a duty not to harm Mr Crowley would be inconsistent with that broader duty.

In a similar, but certainly not identical case, police have again been found not liable for a tragic shooting. In NSW v McMaster [2015] NSWCA 228 the NSW Court of Appeal had to resolve legal issues involving the police and self defence. In this case the police were called to reports of a violent home invasion that had involved at least two men attacking two women with reports of a knife being used. On arrival at the address, one woman who was very agitated, upset and screaming approached police – this was the first victim from the house. Within seconds the first victim’s daughter also approached the police – she was the second victim. The women were described (at [7]) as “visibly upset and somewhat hysterical, and were having difficulty communicating to the officers what exactly had occurred”.   Whilst the two police officers were trying to get the women off the street and to get some idea of what had happened they saw a man, Justin McMaster, come out of the house armed with something that they could not readily identify but which turned out to be a curtain rod. A woman armed with a knife followed him; this woman was Justin’s defacto partner.

In his own words ([97]) Justin was ‘running around like a psycho yelling out at the top of my lungs’. He approached the police.   One constable, Constable Kleinman was trying to get one of the victims off the street and also reaching for her Taser. The other constable, Constable Fanning, didn’t have a Taser so he drew his gun. Both police were calling on the man to stop and drop his weapon. He did not do so and got within at least 3 metres of Constable Kleinman. Constable Fanning was waiting for her to use her Taser but he was aware that it had not been used – he could not see her and did not take his eyes from the man to see what she was doing. Realising that for whatever reason the Taser had not been discharged and the man was no very close to Constable Kleinman, Constable Fanning discharged his firearm.   He was then able to determine that the man was not one of the offenders but the son of victim 1, the brother of victim 2.   The whole event was over within 2 minutes of police arriving on the scene.

In a legal action for damages McMaster alleged the police were negligent and also liable for ‘battery’ that is the intentional infliction of force.   His mother and sister also sued for damages for the undoubted distress that they suffered seeing their son and brother shot in front of them.   The case in negligence was lost at trial and there was no appeal on that point.  The court confirmed the ruling in Crowley’s case that the police could not be held to owe a duty of care to McMaster as that duty would be inconsistent with their broader duty to the community.

On the case in battery (at [11]) the “trial judge found the State liable to Justin on the basis that Constable Fanning had committed a deliberate assault and battery and trespass to his person.”   The State appealed.

The Court of Appeal rejected a claimed immunity by police that they were somehow immune from all intentional torts committed in the course of their duties.   The State argued that the sort of reasoning in Crowley’s case that said that they owed no duty of care, and so could not be liable in negligence, should also apply to an allegation of battery. The court rejected that application which makes sense. It is one thing to say that the police owe multiple duties including a duty to protect the public such that, in performing that duty, they may well harm a person who is posing a threat to that public. A duty to someone in Mr Crowley’s position (who remember was not ‘an offender’) would be inconsistent with their duty to the public. But a duty can’t justify what would otherwise be a battery unless other areas of the law justify the use of force.

In this case the trial judge rejected the argument of self-defence, a finding that the Court of Appeal found was wrong. The issue became whether the legal test for self defence in tort law (the civil area of law that leads to an award of damages) was the same or different to the test in the criminal law.   The test in the criminal law was set out by the High Court of Australia in Zecevic v DPP (Victoria) (1987) 162 CLR 645. In that case, Justices Wilson, Dawson and Deane said, at 661, that the question to be asked in assessing a claim of self-defence is:

“… whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.”

The court of Appeal held that the same test applied in tort law.

In this case Constable Fanning believed there was an imminent threat to his partner. This was indeed the case. Justin had clearly armed himself even though his intention was not to hurt police but to find, and rescue his sister. In any event he intended to use the curtain rod as a weapon. He said (at [93]) that he was holding the rod “Up above my head … Waiting for them. See if my sister had a knife to her throat. I was gunna take his head off.” He saw his sister with ‘a couple of figures’ but he didn’t realise they were police.   He said he only realised the people with his sister were police after they shot him and began to provide first aid care ([95]-[98]).

The court also recognised the defence of necessity, which has been the subject of much discussion on this blog. The defence of necessity allows the use of force to save a life and would certainly, for example, justify forcing entry to a building to rescue a person inside. The New South Wales Court adopted the principles of necessity as summarised by a New Zealand judge in Dehn v Attorney-General (1988) 2 NZLR 564, namely (at [217]):

(1) There is clear authority for the application of necessity as a defence to trespass especially where human life is at stake: Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242; Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218.

(2) Necessity may only be raised in an urgent situation of imminent peril: Southwark London Borough Council v Williams [1971] Ch 734.

(3) The question of necessity is viewed at the time of the actions in question, not retrospectively, such that it is no answer to the defence to say that, in the event, the actions of the trespasser were not necessary: Cope v Sharpe (No 2) [1912] 1 KB 496.

There were other legal issues that were addressed but they were very technical and need not be addressed here.

Implications for the emergency services

This blog is really for the benefit of the fire, ambulance and emergency services. This case was however about police, why is it relevant?

First because of what the case said about the principles of necessity and confirmation of their application. Those principles, listed above, are clearly relevant to fire fighters, paramedics and SES members who might be called upon to enter property to save a life. Earlier posts have questioned the authority to do so. That authority is found in the relevant legislation and in the common law.

More importantly is the discussion the law of self-defence. There are reports of increasing violence against emergency service workers and in particular paramedics. In Tasmanian Paramedic I reported on a case where a man was convicted of assaulting a paramedic, but acquitted of assaulting a police officer even though he punched the officer twice to the face. The law of self-defence applies to everyone. in that case the patient had refused treatment and was being given a drug that he had not consented to and did not know what it was.   He was entitled to defend himself and to use the force he thought was necessary. As the High court also said in Zecevic’s case (see [155]) the jury when considering whether an act was in self-defence:

“… should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection.”

But it cuts both ways. A paramedic who is being assaulted, or who is in fear of being assaulted, is also entitled to act in self-defence and in defence of others. This is not an encouragement to violence and paramedics should not consider this a licence for aggression but should at least know the law.

This case might be described as a terrible misunderstanding, in all the emotion Justin did not realise the people with his sister were her rescuers not her tormenters, and the police had neither the opportunity or the time to work out that the man approaching them was the victim’s brother and not one of the offenders. Had there been time perhaps the whole event could have been de-escalated. It wasn’t and Constable Fanning fearing for his partner’s safety discharged his firearm – and was not guilty of any crime nor was the State, on his behalf, liable to pay damages.   Of course given Justin’s understanding of the situation he too may have been able to use ‘self defence’ (which extends to the defence of others) if he had actually struck Constable Kleinman.

The trauma to Justin’s mother and sister cannot be underestimated. First they are victims of a violent home invasion and then they see their brother shot by the police who had come to assist them. Even so the court found that there had been no breach of duty to them and no ‘wrongful’ act so their claim for damages was also dismissed.

Conclusion

in some respects this case adds little to the law. It confirms that the test for self-defence both in crime and tort is the same and is as set out in Zecevic v DPP. There is no rule that the response ahs to be ‘proportionate’ but if it is excessive that would suggest that the person did not honestly believe that what they did was reasonable.   Subject to that a person can use force to defend himself or herself and that’s true if they’re police, paramedics or competent patients being treated against their will.

Equally the law confirmed the place of ‘necessity’ as a part of NSW torts law. It is a doctrine that can justify forcible entry in urgent circumstances by police, fire and ambulance services and is a defence to various torts including trespass to land and trespass to the person (battery).


Categories: Researchers

On the road again

3 November, 2015 - 10:06

One of the best parts of my job is getting to travel and talk with responders who have to operate within the law that I have the luxury of discussing on this blog and in my other publications.

This week I’ll be travelling to Western Australia. First I will deliver a presentation on legal issues when delivering care on ‘civvy street’ to medics with the Royal Australian Navy at HMAS Stirling.  I’ll then be giving two presentations (one at Bunbury and one in Perth) on legal issues involving the release of hazard information such as flood and fire mapping.  These presentations will be given on behalf of the Western Australia Local Government Association (WALGA) and the Local Government Insurance Service of WA (LGIS WA) to local government representatives.

The week after and I’ll be heading to the Gold Coast for a presentation on issues of natural justice to the inaugural meeting of the National SES Volunteers Association (see ‘Natural Justice and the SES‘ (September 28, 2015)).


Categories: Researchers

Workplace emergency procedures and employees who are also emergency service volunteers

23 October, 2015 - 17:22

This question comes from someone in Sydney. I’m not sure if they are an emergency service member or not, but that doesn’t matter. They say:

I work full time in a fairly large two-story office building in Sydney, and our office has a chief warden, deputy chief warden, several floor wardens and several 1st aid officers. From my employers policy – two of the duties of chief warden/deputy chief is to:

“Brief the emergency services personnel upon arrival on the type, scope and location of the fire or incident and the status of the evacuation, and thereafter assist them as required.”

And

“Once the site has been declared safe by emergency services personnel, attend the evacuation site to brief evacuees of the reason for evacuation and any advice given by the emergency services, including permission or restrictions for return into the building.”

At a recent office toolbox meeting, it was commented that in the event of an emergency, overall control of the situation would be directly handed from the chief warden to an employee who is a volunteer member of NSWSES (who is a 1st aid officer, but not an emergency warden).  The justification for this was that technically a member of an emergency service is onsite, pending arrival of FRNSW/NSW Police/ASNSW.  The chief/deputy/floor wardens receive training through external training providers, but 1st aid officers do not.  Presumably, if any 1st aid officer were co-ordinating an evacuation then they would not be attending to first aid issues.

Assuming that the employee is NOT a “Senior Emergency Officer” under Section 18A of the State Emergency Service Act 1989, my questions are:

  • Does an employee of a company “automatically” become a “onsite emergency service” in the event of an emergency?

  • If there were a fatality during the emergency prior to the arrival of (for example) FRNSW, could that employee / volunteer be held liable if they either continued as a 1st aid officer and declined to take control of the site from the Chief Warden, or by counterpoint, took control of the site and ceased their duties as a 1st aid officer?

  • Can a volunteer member of any emergency service (SES, RFS, VRA etc) “switch hats” and take control of a site from their employers designated chief warden pending arrival of FRNSW/NSW Police/ASNSW, and what are potential legal repercussions of doing so?

Under the Work Health and Safety Act 2011 (NSW) a person conducting a business or undertaking (a PCBU) must take reasonably practicable steps to ensure the health and safety of workers and people at the work place (ss 18 and 19). That obligation is given more meaning in the Work Health and Safety Regulation 2011 (NSW). The regulations say, amongst other things,

A person conducting a business or undertaking at a workplace must ensure that:

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

(b) workers have access to an adequate number of other persons who have been trained to administer first aid. (Regulation 42(2))

And

A person conducting a business or undertaking at a workplace must ensure that an emergency plan is prepared for the workplace, that provides for the following:

(a) emergency procedures, including:

(i) an effective response to an emergency, and

(ii) evacuation procedures, and

(iii) notifying emergency service organisations at the earliest opportunity, and

(iv) medical treatment and assistance, and

(v) effective communication between the person authorised by the person conducting the business or undertaking to coordinate the emergency response and all persons at the workplace … (Regulation 43(1)).

Further

A person conducting a business or undertaking at a workplace must implement the emergency plan for the workplace in the event of an emergency. (Regulation 43(4)).

For the purpose of the Regulation:

emergency service organisation” includes any of the following:

(a) the Ambulance Service of NSW,

(b) Fire and Rescue NSW,

(c) the NSW Rural Fire Service,

(d) the NSW Police Force,

(e) the State Emergency Service,

(f) the NSW Volunteer Rescue Association Inc,

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

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

and

emergency service worker” includes an officer, employee or member of any of the following:

(a) the Ambulance Service of NSW,

(b) Fire and Rescue NSW,

(c) the NSW Rural Fire Service,

(d) the NSW Police Force,

(e) the State Emergency Service,

(f) the NSW Volunteer Rescue Association Inc,

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

(h) an accredited rescue unit within the meaning of the State Emergency and Rescue Management Act 1989 . (Regulation 5).

We are told the employee in question is a member of the NSW SES. The SES is made up of ‘the Commissioner, Deputy Commissioner and other staff of the Service, and the volunteer officers and volunteer members of all SES units’ (State Emergency Service Act 1989 (NSW) s 7). But not all members are operational and not all trained for all tasks. A person may be a volunteer member of an SES unit who staffs the communications room, or assists with administration, or is a flood boat operator but not trained in some other event.

Equally the emergency in question may be a fire, or a bomb threat, or a gas leak or a blackout or any manner of hazards which have nothing to do with the SES.

It seems that this company’s emergency plan is ‘in the event of an emergency we’ll ask the employee who is a member of the SES what to do even though we don’t know what his or her capacities are, what his or her training is or what he or she might do and in doing so we’ll diminish our first aid staff by one’. When written like that the inappropriate nature of what is suggested is obvious.

Assuming the emergency in question is one for which the SES is the relevant combat agency it is the Commissioner who is to ‘have overall control of operations’ (State Emergency Service Act 1989 (NSW) s 20).   He or she will delegate that power through the chain of command to the relevant controller, in most cases the unit controller and they will respond.   In short the emergency service organization will be represented by the crew that turn up, in their truck, in uniform. If that were not the case then a member of the services who was at a shopping mall would somehow be ‘in command’ should an alarm go off.

In ‘a fairly large two-story office building in Sydney’ most emergencies are going to be the type that will be managed by the police or NSW Fire and Rescue so attempting to hand control to an SES volunteer who just happens to be there would be both dangerous and inappropriate.

At the recent AFAC (Australasian Fire and Emergency Services Authorities Council) conference in Adelaide there was a major fire in the Adelaide CBD and a hotel where a number of chief fire officers were staying. Those fire officers did not somehow magically have command and control responsibilities; the relevant fire service was the duty crew from the South Australian Metropolitan Fire Service.   Granted they were from different states but the principle is the same, the staff member who happens to be a volunteer may be from a different agency to the combat agency and on the occasion of the incident he or she is not then representing the SES.

Of course a person might be representing the SES. Assume for example there is a member of the SES, in uniform, who hears an alarm and sees people evacuating. That member may approach the Chief Warden and ask ‘can I help?’ but that would still not make him or her ‘the emergency service’ as he or she is still not there as the Commissioner’s delegate.   Even if he or she was then his power may be to ‘direct’ the evacuation of the building (s 22) in which case he or she would expect the Chief Warden to see to carrying out that direction.

Finally SES members are volunteers. They can simply chose not to volunteer at a time in question.

Let me now turn to the specific questions.

  • Does an employee of a company “automatically” become a “onsite emergency service” in the event of an emergency?

No, the suggestion is patently silly.   An employee of a company, at work, is an employee of the company. That they are a member of one of the emergency services is irrelevant. Particularly for volunteers their membership is part time so when they are at work they are not then the relevant ‘onsite emergency service’ and they will not carry the relevant Commissioner’s authority or delegation.

  • If there were a fatality during the emergency prior to the arrival of (for example) FRNSW, could that employee / volunteer be held liable if they either continued as a 1st aid officer and declined to take control of the site from the Chief Warden, or by counterpoint, took control of the site and ceased their duties as a 1st aid officer?

No, they would not be liable if they performed their duties as a first aid officer. They have no legal duty to take control of the site and no legal authority to do so.   Equally if the Chief Warden refused to do his or her job so the volunteer realizing that if he or she didn’t do something then no-one was going too they also wouldn’t be personally liable. In that situation they are still acting as an employee as their employer is the one insisting, in effect, that they act as Chief Warden. In either case the employer would be liable for failing to have an emergency plan that even began to look sensible. If I were that member I’d insist on getting the floor warden training and the allowance and being appointed Chief Warden as there is clearly no expectation the Chief Warden is going to do anything.

  • Can a volunteer member of any emergency service (SES, RFS, VRA etc) “switch hats” and take control of a site from their employers designated chief warden pending arrival of FRNSW/NSW Police/ASNSW, and what are potential legal repercussions of doing so?

No. The Commissioner’s have in place processes to respond units. Let’s assume that the emergency in question is a fire and Fire and Rescue NSW have been dispatched. The incident controller will be the brigade captain. An SES member has no particular authority and is not the SES Commissioner’s delegate.   If the Chief Warden simply refused to do anything on the basis that there was an emergency service member there the smartest thing to do would be to ‘direct’ the Chief Warden to do his or her job and the Chief Warden, being convinced that he or she has to follow the directions of the emergency services would presumably be goaded into action.

The legal consequences of having a policy to the effect that ‘overall control of the situation would be directly handed from the chief warden to an employee who is a volunteer member of NSWSES (who is a 1st aid officer, but not an emergency warden)’ is, in my view, that the company could be liable for a criminal offence under the Work Health and Safety Act 2011 (NSW); the officers of the company that allowed such a policy to stand could be personally liable (s 27) and the company would be liable in negligence if the poor volunteer, untrained as a warden, didn’t manage the site properly.


Categories: Researchers

NSW SES responding to a non-emergency

16 October, 2015 - 20:44

The NSW SES is the ‘combat’ agency for managing the response to floods and storms (see ‘The NSW SES is the combat agency for floods and storms – but what is a flood? or a storm?’ (October 6, 2015)) but what happens if there is no storm and the SES still responds? That is the essence of this question from a NSW SES duty officer.

I have some questions relating to what the SES is allowed to do when there is no “Emergency” relating to our combat roles of Storms, Flood Tsunami. A common example is that a call is received directly by SES on a calm day to attend a “tree down” on a house (no significant structural damage reported). My understanding is that if the tree down does not relate to a Storm, Flood or Tsunami the SES have no responsibility to attend.

My question relates to what happens if an SES unit does decide to send a team out to complete a job such as this when according to the State Emergency Service Act 1989 (NSW) there is no “Emergency” as defined in the Act?  If a team was to attend and a fatality was to occur of one of our members, would the corner question why the SES was in attendance to something that is outside of our combat role?

Having read the Fire Brigades Act 1989 (NSW) s 7 my understanding is that FRNSW would actually be the combat agency for this incident?

General authority to protect persons and property

(1) The Commissioner is authorised to take measures anywhere in the State for protecting persons from injury or death and property from damage, whether or not fire or a hazardous material incident is involved.

(2) In the case of fire, it does not matter whether or not the persons are, or the property is, within a fire district.

It appears the SES act does not have a similar provision.

If FRNSW decided to refer this job to the NSW SES, the SES would be obliged to attend as it is a function of the SES (State Emergency Service Act 1989 (NSW) s 8(1)(g)):

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

If the SES tasks a team to a job that in reality should have been given to FRNSW and a facility occurs – my assumption is that the book would be thrown at NSW SES and not FRNSW as NSW SES

1) Failed to pass on the job to FRNSW .

2) Sent a team to a job that according to the SES act is not our responsibility.

I guess I am asking what the consequences would likely be if my worst-case scenario were to occur and who would be held responsible?

‘Emergency’ is defined by the State Emergency and Rescue Management Act 1989 (NSW) s 4 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 … requires a significant and co-ordinated response’.   The situation described above is not an emergency for the purposes of that Act.

The State Emergency Service Act 1989 (NSW) does not define ‘emergency’ or given any indication of when a flood, storm or tsunami becomes an emergency.

The combat agency is ‘the as the agency primarily responsible for controlling the response to a particular emergency‘ (State Emergency and Rescue Management Act 1989 (NSW) s 3)).   For “a “tree down” on a house (no significant structural damage reported)” there is no ‘emergency’ and no ‘agency identified in the State Emergency Management Plan’ to deal with it. A ‘“tree down” on a house (no significant structural damage reported)”’ is no more an emergency for Fire and Rescue NSW than it is for the SES.   The fact that the Commissioner is authorised to take action in response to an emergency does not mean that he or she is required to do so nor does it make FRNSW the ‘combat agency’ for the described event.

The ‘combat agency’ ie the person ‘primarily responsible for controlling the response’. In this case that has to be the occupier of the property. They could call a tree lopper, their insurance company and anyone else they can think of, including the SES. If the SES is called it is being asked to help – to be a helpful neighbour. There is clearly no obligation to attend. It is not a function of the SES to attend and remove a tree that fell because its roots were rotten any more than it is a function of the SES to attend and clean a person’s gutters, help them fix their roof or fix a broken window.

Having said that SES units do many things that are outside the functions of the SES such as assisting with community events by marshalling the parking or people and who knows what else. There are good reasons to do this, it helps build good will, it may assist with recruiting, it may be considered useful training and, fundamentally, it is a bunch of people who are willing to volunteer their time for their community doing just that.   I can see the argument that if the SES unit is spending time and resources on activities that are not a ‘function’ of the SES an auditor might become concerned and this would be the case the further the activity is separated from the functions. Where that line is drawn is not clear and to a certain extent has to be a matter for Unit Controllers.

I have difficulty believing that anyone would think that the local SES could not make a legitimate decision to help in the circumstances described.   The event may not be an ‘emergency’ for the community or the state, but it is an emergency for the occupier. If they, for whatever reason, are unable to make arrangements to secure their property and prevent further damage from the weather then the SES may want to do so. Remember it is a function of the SES ‘to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis’ (s 8(1)(aa)). If a house has a tree fallen on it, it may be subject to more damage should a storm arise?

Let us assume that turning out to assist in the circumstances described, whilst not performing a function of the SES is not so far removed from the SES core function so that it is not an inappropriate use of the SES resources.   We can then turn to the specific questions.

If a team was to attend and a fatality was to occur of one of our members, would the corner question why the SES was in attendance to something that is outside of our combat role?   

Indeed. Coroners don’t investigate all deaths. Coroners investigate deaths in certain circumstances (such as deaths in custody) or when ‘if it appears to the coroner concerned that the manner and cause of the person’s death have not been sufficiently disclosed’ (Coroners Act 2009 (NSW) s 27). When investigating a death the Coroner a coroner may ‘make such recommendations as the coroner or jury considers necessary or desirable to make in relation to any matter connected with the death…’ (s 82).   If we assume that a fatality occurs in the circumstances described, and the Coroner decides to hold an inquest, he or she could and would investigate all the circumstances of the death. The mere fact that the SES did not have a specific function to attend such a task is hardly like to be a contributing factor to the death given the task is very much an SES task – the only issue being whether or not there was a storm. The situation may be different if the fatality arose because the SES were engaged in fire fighting but this scenario is not so far removed from the key tasks of the SES.

If a fatality occurs the Coroner will investigate whatever he or she thinks is relevant and it will make no difference whether or not one can point to a paragraph in s 8 as the function being performed.

If the SES tasks a team to a job that in reality should have been given to FRNSW and a fatality occurs – my assumption is that the book would be thrown at NSW SES and not FRNSW as NSW SES

1) Failed to pass on the job to FRNSW .

2) Sent a team to a job that according to the SES act is not our responsibility.

As argued above I don’t think the FRNSW are the combat agency, no-one is. There is no combat agency for this any more than there is for a homeowner that has a broken window, or a damaged roof. It’s simply not an emergency.

If there is a fatality I can’t see that either of those aspects will be an issue.   It would be an issue if for example the SES received a call to a fire and didn’t pass it on to the fire service but this job is much more akin to an SES task.

If there is a fatality the issue will be what caused the death. Was the person trained, supervised, what steps were in place to ensure their safety etc. Sending a team to a job that is not formally an SES responsibility is hardly an issue and will not determine the issue of liability.

Equally if you assume that it really should have been given to FRNSW and they in turn referred the job back to the SES that would make no difference to a fatality inquiry. The issue would still be what was happening, who was actually doing what, who was trained to do what etc.

Conclusion

Attending a tree that has fallen on a because of poor maintenance is not an SES responsibility. But if they do attend then the obligation upon the SES is, as with any task, to take care to protect the members and ensure the job is done safely. If a person died during the task, whether an SES member or someone else, the issue will not be ‘was this an SES job’ rather it will be ‘what happened and why?’   Issues of training and safety management will be relevant and the notion of which was the appropriate agency to respond could be relevant if the SES were doing something that they were not trained to do (such as fire fighting). The SES are trained to deal with trees on homes so the question of whether the tree fell because of storm or some other cause is unlikely to be relevant to any inquiry into a tragedy that occurs during the response.


Categories: Researchers

Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police – Part 4

16 October, 2015 - 09:27

See Part 1 here;

See Part 2 here.

See Part 3 here.

Part 4 deals with the inevitable ‘Laura Norder’ (Law and Order) reaction.  The ‘Mercury’ reports that following this case (and others) that ‘Minimum mandatory sentences established for bashing police are set to be extended in Tasmania to include other emergency workers, including paramedics’ (Patrick Billings ‘Paramedic punched in the faceMercury 13 October 2015).    The article goes on to quote Health and Community Sector Union secretary Tim Jacobson who says “Paramedics are going into people’s homes every day of the week and they … need to feel safe doing that.”

The problem with these sorts of reforms is that we know, before they are introduced, they are not going to achieve the desired objective of allowing paramedics to feel safe.   First, sentences, whether harsher or mandatory, only apply after the offence has been committed.   The paramedic still has to be assaulted before the penalty can be applied.  The argument that harsher penalties will cause people to think twice has never worked.  Mandatory death penalties and transportation across the seas has not prevented crime.  And people who are affected by illness, injury or drugs and who are frightened – perhaps facing the worst day of their life – aren’t really going to think ‘I was going to bash this paramedic but now I realise that the minimum penalty is xx, I don’t think I will’.    The idea that people chose to commit crime on the basis of a cost/benefit calculation is discredited.

Even if people do hit a paramedic (or a police officer, or anyone else) it does not mean they are guilty of an assault.   To make this personal, in about 2007 I had a serious motor cycle accident with associated head injury and hypoxia.  I don’t recall the event at all but I’m told that when paramedics arrived I kept trying to get up.  Later in Tamworth hospital I’m told I was belligerent and ‘kept trying to hit people’.     Would I be guilty of assault?  I don’t think so.

To be guilty of assault the defendant has to intentionally apply force to the victim.  The first issue then is whether or not their actions are voluntary.  If you are acting ‘without there being any will to perform that act’ then you cannot be guilty of the offence charged (Model Criminal Code Officers Committee, Model Criminal Code Report (1992) p 13).

If the cause of the involuntary action is a ‘disease of the mind’ then the accused is raising the defence of ‘insanity’ but if the cause is ‘a result of operations of event up a sound mind’ then the issue is non-insane automatism (R v Falconer (1990) 171 CLR 30).  If the issue is ‘insanity’ the accused must prove their case ‘on the balance of probabilities’ and leads to a special verdict of ‘not guilty of the grounds of insanity’ and sees the accused diverted to the mental health system.  If the issue is ‘non-insane automatism’ the outcome is an acquittal.  To return to my situation, a high speed impact with associated head injury and hypoxia would take me into ‘non-insane automatism’.

It can be argued that a person with a drug addiction has an underlying mental illness and perhaps ‘insanity’ is the more appropriate approach (which I would add, is not a ‘get out of jail free’ card as the offender could be subject to more stringent controls under relevant mental health legislation than they would face under the criminal justice system).

The point is, however, if a person strikes out because of their injury or illness, whether it’s a head injury, epilepsy, intoxication or the like, if they are acting independently of their will then they will not be guilty of an assault.  It should be noted that in – Bonde v Morrison [2015] TASMC 9 the defendant did try to argue that he was not guilty on the grounds that his actions were not voluntary.  This was rejected by the Magistrate (see [17]).  If that argument had been accepted he would not have been guilty of assaulting either the paramedic or the police officer.

If the accused’s actions are voluntary there are many defences to assault.  In particular, as in Bonde v Morrison, there is self-defence.  We are allowed to use ‘reasonable force’ to defend ourselves.  The law is concerned with an offender’s criminality not the consequences of his or her actions.  That is why attempted murder carries the same penalty as murder though the consequences are clearly different.    Because the court is trying to determine the accused’s culpability, their willingness to break the law, they are entitled to be judged against the situation as they believe it to be.   That can be summed up as ‘an honest and reasonable belief in facts which, if true, would make the act innocent’ is a defence (this oversimplifies the position but is sufficient for this discussion, see however Michael Eburn, Roderick Howie and Paul Sattler Hayes and Eburn Criminal Law and Procedure in NSW (4th ed, 2013, Lexis/Nexis) pp56-68).  So if you honestly believe you are going to be attacked and you respond in self-defence you have a  legal defence even if it turns out that the ‘victim’ was not going to attack you.

So a patient who misunderstands what is going on and who is doing what to whom may well have a defence even if the reason for their confusion is their intoxication or head injury.    It will also be a defence if what they believed was they were being attacked by aliens, not assisted by paramedics.

There have been legal reforms that are relevant here.  For example in NSW the Crimes Act 1900 (NSW) provides that ‘self-induced’ intoxication cannot be relevant to determine if a person intended to hit the victim (s 428D) or whether their actions were voluntary (s 428G).  Those sections are not however relevant where the person is acting due to head injury, mental illness or intoxication that is not ‘self-induced’.    NSW also lead the way with the ‘one punch’ law reform so that now there is a minimum mandatory sentence (8 years imprisonment) for assault causing death if the offender is intoxicated (s 25B), but not if the offender is a sober jerk.  And one might consider that a person who assaults someone in the cold light of day, with a clear mind, is a worse criminal than one affected by alcohol.

There are other reasons to object to this type of law reform. If mandatory sentences, or even ‘higher’ sentences are imposed for assaulting police or paramedics, people who are not in that category get a different level of justice.  What if, for example, the person assaults a fire fighter, a Good Samaritan who stepped up to help and a paramedic – why is there a higher penalty for assault the paramedic and not the others?    And there will then be the inevitable question of who is a ‘paramedic’ – see NSW workers compensation and when is an employee a firefighter? or a paramedic? (July 30, 2015).  If a person assaults a St John volunteer the question will be ‘are they considered a paramedic’ and if not, is that fair because the minimum sentence wouldn’t apply?

Paramedicine is a dangerous job.  Whether it’s climbing into a car or train wreck, descending off a rope from a helicopter or enter a person’s home where, by definition things are going wrong and often because of the person’s own actions.  It is because paramedics (and police, and fire fighters, and rescuers whether paid or volunteer) take on these risks that we the community value them and what they do.  They deserve to be ‘safe’ but with any inherently dangerous job that safety cannot be guaranteed.    And making the legal changes suggested here will go no way to making the job safer.   The problem is that it might make paramedics think their concerns are being taken seriously and that governments are trying to protect them – but if they then go about their job feeling better and safer what they are suffering from is a placebo effect – they’ve taken the sugar pill but it’s not treating the problem.

Unpopular, and expensive as it is, the remedy is not in tougher criminal law; it’s in resourcing mental health and drug treatment.  Recognising that these are health problems will necessarily involve the paramedics (and doctors and nurses and others) who work in the area of emergency and out of hospital health care.

For further discussion see ‘Responding to violence against paramedics’ (February 11, 2015) https://emergencylaw.wordpress.com/2015/02/11/responding-to-violence-against-paramedics/


Categories: Researchers

The risk of liability for performing emergency CPR is overstated – even in the USA

7 October, 2015 - 09:08

It’s a popular myth that people in the US get sued for everything all the time including for providing bystander initiated CPR.  The National Academies Press (‘… created by the National Academy of Sciences to publish the reports of the National Academies of Sciences, Engineering and Medicine’) has just published a report – ‘Strategies to Improve Cardiac Arrest Survival: A Time to Act (Institute of Medicine, 2015). The report is free to download.

The report identifies that a barrier to bystander initiated CPR is fear of legal liability and it makes some recommendations to make ‘Good Samaritan’ laws consistent across all of the United States. The interesting commentary is at p 113-114.  The report says (references omitted; emphasis added):

A fear of legal consequences and a lack of familiarity with Good Samaritan laws are frequently cited as reasons for not performing bystander CPR. These fears are not without justification: although a bystander has no legal duty to rescue, there can be legal consequences for intervening.  Theoretically, a member of the public could be sued for providing bystander CPR; however, the committee is unaware of any successful suit of this type. To mitigate the confusion and fear of potential rescuers, CPR instructors are urged to inform trainees of the protections available for lay rescuers in their area.

Let me repeat that, even in the United States the Committee was ‘unaware of any successful suit of this type’.  (Let me also clarify that even in the US it is not true that ‘Theoretically, a member of the public could be sued for providing bystander CPR…’ What is true is that ‘Theoretically, a member of the public could be sued for negligently providing bystander CPR provided the plaintiff could show that the outcome would have been different had the CPR not been negligently performed …’ but see ‘CPR success: TV v Reality‘ (September 3, 2015)).

In Australia the Review of the Law of Negligence (Commonwealth of Australia, 2002) also reported that:

… the Panel is not aware, from its researches or from submissions received by it, of any Australian case in which a good Samaritan (a person who gives assistance in an emergency) has been sued by a person claiming that the actions of the good Samaritan were negligent.

Even though there has been no successful action of this type, either in the US or Australia, Australia has developed Good Samaritan laws in each state.  As recommended by the Institute of Medicine, first aid instructors should be aware of the legislation applicable in their jurisdiction and should ‘inform trainees of the protections available for lay rescuers in their area’.

For Australian Good Samaritan laws see

For discussions on the application and effect of that legislation see:


Categories: Researchers

Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police Part 3

6 October, 2015 - 14:10

Perhaps not strictly part 3 (see Part 1 here; and Part 2 here) but this question arose as a result of that discussion.  In Parts 1 and 2 I discussed how a person was acquitted of assault as he acted in self-defence when he used force to resist treatment that he did not want.  As a result of that discussion I’ve been asked by a Tasmanian Paramedic for guidance on the law of self-defence.  I’m told that a patient had engaged in abusing another paramedic and had hit her.  My correspondent’s:

… first reaction was to get between the patient and my volunteer, simply as a physical barrier if anything, to protect her.  However, upon doing so, I came to a complete standstill and essentially waited for him to do something / make the first move.  Whilst I didn’t have to wait long for him to make that move, I guess I now wonder whether in fact I needed to wait at all for him to show aggression directly towards me.

Whether correct or not, I had it in my mind that he needed to show aggression directly towards me before I could retaliate in self defense and restrain him to the ground.

The alternative scenario playing out in my mind (retrospectively) is that rather than coming to a standstill as I did, instead I use my momentum and ‘rugby tackle’ the patient into the cupboards in the corner of the room.  This would have possibly resulted in the patient sustaining some injury, but it would have been less likely that I would have an injury.  Essentially, was it sufficient that he had already assaulted my volunteer?

I’ve been given some more details but I’m also told the matter is still before the court – I therefore won’t make any comment on the specific facts but just a general discussion on ‘self-defence’.

Tasmania has a criminal code set out as Schedule 1 to the Criminal Code Act 1924 (Tas).  Clause 46 says ‘A person is justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes them to be, it is reasonable to use.’

The application of that law to the question posed by my correspondent appears to have been answered by the Tasmanian Court of Criminal Appeal in Wright v Tasmania [2005] TASSC 113. There Justice Blow (with whom Justices Evans and Tennett agreed) said (at [14]-[17] emphasis added):

The law as to self-defence in this State is governed by the Criminal Code, s46, which provides as follows:

“A person is justified in using, in the defence of himself … such force as, in the circumstances as he believes them to be, it is reasonable to use.”

When self-defence is an issue, the Crown of course bears the onus of proving beyond reasonable doubt that the act in question was not done by way of lawful self-defence.

In determining whether the amount of force used in self-defence was reasonable or excessive, a jury must take into account the fact that a person defending himself or herself may be in a stressful situation with little or no time to think. In Palmer v R [1970] UKPC 2; [1971] AC 814 at 832, Lord Morris, delivering the judgment of the members of the Privy Council, said:

“If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.”

That passage was cited with approval by Mason CJ in Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645 at 650, and in Connaire v Austin 33/1988 by Green CJ at 2 and Neasey J at 6.

A person who believes he or she is about to be attacked does not necessarily have to wait for the assailant to strike the first blow or fire the first shot. Circumstances may justify the use of pre-emptive force in self-defence. See Beckford v R [1987] UKPC 1; [1988] AC 130; R v Lawrie [1986] 2 Qd R 502 at 505.

In Shane Rudman v R [1997] TASSC 16, Chief Justice Cox along with Justices Underwood and Slicer, sitting as the Court of Criminal Appeal, had to review the directions a trial judge had given to a jury.   Chief Justice Cox (with whom Justice Underwood agreed) said (at [21]-[23]):

… the learned trial judge … told the jury that a person who genuinely believes he is threatened with an attack is not obliged to wait until the attack has commenced and that he may take reasonable measures to make the situation safe. In the passage complained of, he said:

“… for the purpose of determining whether the accused’s actions in  self defence  were no more than were reasonably necessary you might need to consider the possibility that he could have done something else to avoid the attack if he felt himself threatened with an attack. Could he have done something less violent to deflect the attack? Could he have retreated? Could he have sidestepped? Could he have taken any form of evasive action to avoid the attack rather than using force to provide himself with a defence?

Now again, I stress that his failure to have recourse to any one of those alternatives is plainly not decisive but they are matters that obviously would have to be considered. What could he have done other than what he did?”

In Palmer v R [1970] UKPC 2; [1971] AC 814 at 832, Lord Morris, delivering the judgment of the Privy Council, said:

“If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.”

Likewise, as Richards J said in Saler v Klingbiel [1945] SASR 171 at 172, a case not of self-defence but of the defence of another to which the same considerations apply:

“It must of course be conceded that it is not the function of a protecting intervener to go further than protection and administer punishment; but one must not weigh conduct on such an occasion with ‘golden scales’ …”.

The Court of Appeal held that the trial judge had correctly explained the relevant law.

Self-defence however requires only that action to neutralise the threat.  ‘Retaliation’ or ‘retaliating in anger’ (Bonde v Morrison [2015] TASMC [22]) take the action outside self-defence.

Discussion

It is not necessary that a person ‘show aggression directly towards’ another before that person takes action in self-defence, provided that action is intended to neutralise the threat and not to add a degree of retaliation.    If a person honestly believes, and has some grounds to believe (Zecevic v DPP [1987] HCA 26) that they, or a third party, are going to be attacked they may act to defend themselves.

A person could use their ‘momentum and ‘rugby tackle’ the patient into the cupboards in the corner of the room’ even if this ‘would have possibly resulted in the patient sustaining some injury, but it would have been less likely that [the person acting] would have an injury’ provided that the person honestly believed that such conduct was required in order to protect themselves or another person.

The problem with the question I have is the final question which is ‘Essentially, was it sufficient that he had already assaulted my volunteer?’  The answer to that is ‘no’.  You can’t use reasonable force in self-defence once an attack has occurred as you are not trying to stop the attack. You can only use that force if you believe another attack is likely.  The fact that this person had assaulted another ambulance officer would be a fact, a very relevant fact, to support the genuine belief that he was about to launch another attack – but that is the essential belief.  Hitting someone because they have already attacked someone else is just force – hitting them because you think they are going to attack that person again, or attack you, is self-defence.

The fact that ‘he had already assaulted my volunteer’ gives rise to an alternative justification for the use of force, and that is force to effect an arrest.  ‘It is the duty of every person to arrest without warrant any person whom he finds committing any of the crimes in Appendix A’ (Criminal Code (Tas) s 27(4)).   One of the offences listed in Appendix A is ‘assault’.  Further ‘It is lawful for any person to arrest without warrant any person whom he sees committing a breach of the peace or whom he believes on reasonable grounds to be about to commit or renew a breach of the peace’ (s 27(6)).  Further ‘It is lawful for any person who is justified … in making an arrest, to use such force as may be reasonably necessary to overcome any force used in resisting such … arrest’ (s 26).   If a person has just struck another that is both an assault and a breach of the peace and a person would be justified in using reasonable force to arrest them pending arrival of the police.


Categories: Researchers

The NSW SES is the combat agency for floods and storms – but what is a flood? or a storm?

6 October, 2015 - 12:28

This question comes from a NSW emergency management professional:

A colleague and I were having a nonsensical discussion on a water main break because the SES turned up at one. So we played semantics with the different ways the flow of water could be construed as a flood. Pretty straight forward that riverine and flash flooding gives the SES the Combat Agency role in NSW for ‘Flood’. Tsunami is included because it is specifically designated.

Now here is the issue. It is also generally accepted that SES issue warnings and response for Dam Failures. In a dam failure, the water coursing down could be considered a flood in a debate (perhaps). Prescribed dams have plans and I have not yet dived into combat agency or control agency mentions there. But in legislation, no real mention on the subject that I can find nor a specific mention in State EMPLAN.

But what of a water main break where water, and lots of it, is freely flowing down streets and through the houses? Under stand it is the water authorities problem but could it be considered a flood?

The State Emergency Service Act 1989 (NSW) s 8 says, amongst other things:

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,

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

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

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

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

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

If the SES is going to be the combat agency for floods and storms then one would imagine that what is a flood or storm is defined; but those terms are not defined.

Flood

Following the Queensland floods of 2011 an inquiry into flood insurance determined that there were problems with inconsistent definitions.  The result was that flood was defined for the purpose of insurance law (Insurance Contracts Act 1984 (Cth) s 37B; Insurance Contracts Regulations 1985 (Cth) r 29D).   For the purposes of an insurance contract, flood means:

… the covering of normally dry land by water that has escaped or been released from the normal confines of any of the following:

(a) a lake (whether or not it has been altered or modified);

(b) a river (whether or not it has been altered or modified);

(c) a creek (whether or not it has been altered or modified);

(d) another natural watercourse (whether or not it has been altered or modified);

(e) a reservoir;

(f) a canal;

(g) a dam.

So water flowing from a dam, whether it’s a dam break or a controlled release is a flood, water from a burst water main is not – at least not on your household insurance.   That does not mean a person with household insurance is not covered – they are.  A contract for household insurance must provide cover for ‘bursting, leaking, discharging or overflowing of fixed apparatus, fixed tanks or fixed pipes used to hold or carry liquid of any kind’ (Insurance Contracts Regulations 1985 (Cth) r 10).   A person that has household insurance is covered for damage caused by water escaping from the main, but only if they have flood insurance are they insured for water coming from the dam.  But that is about insurance law and is a guide, but is not the definition for the SES Act.

The Water Management Act 2000 (NSW) refers to ‘flood work’ but does not define ‘flood’.   The Water Act 1912 (NSW) s 166C also refers to ‘flood’ but gives no definition.  Neither does the Water Act 2007 (Cth).

For the Local Government Act 1993 (NSW) ‘flooded’ means ‘inundated by waters derived from the runoff of rainfall on land’ (s 3 and Dictionary).  That is a much more limited definition than the definition of ‘flood’ in the Insurance Contracts Act.

The Environmental Planning and Assessment Act 1979 (NSW) which is the Act that governs land use planning and one would hope includes provisions to limit development on flood prone land has no definition of ‘flood’.

The National Arrangements for Flood Forecasting and Warning refers to ‘types of floods’ ‘caused by heavy rainfall, although extreme tides, storm tide, tsunami, snow melt or dam break’ also cause flooding as does ‘coastal flooding as a result of sea level rise’.  The National Arrangements are concerned with ‘flooding as a result of heavy rainfall, which generally falls into the two broad categories, flash floods and riverine floods’ (see [1.2]).

In the absence of a legislative definition, lawyers start with a dictionary, traditionally the Oxford but in Australia the Macquarie Dictionary is often the dictionary of choice.  The Macquarie Dictionary (online) (relevantly) defines flood as ‘a great flowing or overflowing of water, especially over land not usually submerged’.  On that definition water from a dam or a burst water main are both a flood.

Given the variety of definitions it may be up to the Commissioner to determine what the SES functions are, and to do so in consultation with the State Emergency Management Committee.  The NSW SES website gives the following as examples of floods:

  • Rivers in Flood
  • Flash Floods
  • Dam Failure
  • Storm Surge
  • Tsunami

The NSW State Flood Plan – a sub plan of the State Emergency Management Plan, defines flood as:

Relatively high water level which overtops the natural or artificial banks in any part of a stream, river, estuary, lake or dam, and/or local overland flooding associated with drainage before entering a watercourse, and/or coastal inundation resulting from super-elevated sea levels and/or waves overtopping coastline defences.

That could include water escaping from a burst main as it would be ‘local overland flooding associated with drainage before entering a watercourse’ because the definition doesn’t refer to the source of the water but it’s destination – before entering a watercourse.

Storm

A similar definitional problem arises with ‘storms’.   When I was a member of an operational SES unit we would debate whether a ‘job’ was ours – did the tree just fall over, was their wind and if so a lot of wind?  Did it rain, if so how much?  Was there, or was there not, a storm?  Again there are no binding definitions of what is a ‘storm’.    The Bureau of Meteorology does not define ‘storm’ but it does issues severe thunderstorm warnings.  They say (‘About Severe Thunderstorms’):

Severe Thunderstorms are defined as those that produce any of the following:

  • Hailstones with a diameter of 2cm (the size of a $2 coin) or more
  • Wind gusts of 90km/h or greater
  • Flash flooding
  • Tornadoes

The SES is the combat agency for ‘storms’ not ‘thunderstorms’ and not ‘severe thunderstorms’ so that definition can’t be applicable.   The NSW State Storm Plan doesn’t define ‘storm’!    It does say, however, (at [6.1.3]):

Response operations will begin:

On receipt of an Australian Government Bureau of Meteorology:

  • Severe Thunderstorm Warning
  • Severe Weather Warning for hail, flash flooding, damaging surf
  • Tropical Cyclone Watch
  • Tropical Cyclone Warning
  • Sheep Graziers Warning

Which would suggest that by ‘storm’ the plan is limited to those severe events.  [6.1.3] goes onto say, however, that response operations will also begin ‘following impact of a storm not covered by a formal warning’. This again begs the question of ‘what is a storm?’  The NSW SES website lists the following as examples of storms:

  • Thunderstorms
  • Tornadoes
  • Tropical Cyclones and Ex-Tropical Cyclones
  • Mid-Latitude Low-Pressure Systems (including East Coast Lows)
  • Low Pressure Troughs
  • Cold Fronts and Southerly Busters
  • Cold Outbreaks

The Macquarie Dictionary defines storm as:

  1. a disturbance of the normal condition of the atmosphere, manifesting itself by winds of unusual force or direction, often accompanied by rain, snow, hail, thunder and lightning, or flying sand or dust.
  2. a heavy fall of rain, snow, or hail, or a violent outbreak of thunder and lightning, unaccompanied by strong wind.
  3. Meteorology a wind of Beaufort scale force 11, i.e., one with average wind speed of 56 to 63 knots, or 103 to 116 km/h.

So if a tree falls on a house in a mild wind or after some rain, is it storm damage?  There is no clear answer to that.

Does it matter?

One wonders if it really matters.  If we assume there is water flowing from a burst main that is threatening or doing damage to homes and businesses would we expect the SES to ‘turn out’ or refuse because it’s not a flood?

I imagine that most SES units being made up of volunteers who join to do the sort of work the SES does, and who want to help their community are willing to turn out regardless of the precise definition of flood or storm.  Further one of the functions of the SES is ‘as directed by the State Emergency Operations Controller, to deal with an emergency where no other agency has lawful authority to assume command of the emergency operation’.  The State Emergency Operations Controller is the Commissioner of Police (State Emergency and Rescue Management Act 1989 (NSW) s 18).  If the SES are directed to take charge of the response then they are in charge.

If the SES are not so directed, so for example the Local Emergency Operations Controller (State Emergency and Rescue Management Act 1989 (NSW) s 30) is taking charge then he or she could call on the SES to assist (State Emergency Service Act 1989 (NSW) ss 8(1)(f) and (g)).

Conclusion

There is no clear legislative definition of flood or storm.  For NSW SES the definitions have to be the ones in the relevant State sub-plan.  The definition of flood could include water from a water main.  There is no definition of ‘storm’.

I can’t however see that it matters.  Volunteers are probably willing to turn out without quibbling too much about definitions and in doing so they help build the resilience of the community that they are part of.  In modern thinking of ‘all hazards, all agency’ response whether the SES are responding as the combat agency or to assist another agency or to assist the water authority shouldn’t make too much of a difference.  Presumably the agency staff can work together to coordinate the response and if necessary identify who is to be the incident controller.  If they can’t then the Local Emergency Operations Controller is ‘responsible for controlling’ the response (State Emergency and Rescue Management Act 1989 (NSW) s 31).


Categories: Researchers

FRNSW and what does it mean to ‘proceed with all speed’?

6 October, 2015 - 08:46

A firefighter with Fire and Rescue NSW asks:

Section 11 of the Fire Brigades Act relates to responses & states that FRNSW must “…despite anything to the contrary in any Act, proceed with all speed to the fire…” I am at a permanently manned station & have 2 Retained stations within 10-12km. When calls are in the adjoining stations area they are responded because ESCAD (our response system) recognizes that they are closer. The permanently manned appliance would be quicker even though it is further distance from the incident address.

Is FRNSW complying with the Act when they respond a closer resource distance wise rather than the quickest timewise?

The answer is ‘yes, FRNSW are complying with their statutory obligations’.

Section 11 of the Fire Brigades Act 1989 (NSW) says:

When there is an alarm of fire, a fire brigade must, despite anything to the contrary in any Act, proceed with all speed to the fire and try by all possible means to extinguish it and save any lives and property that are in danger.

In an earlier post (The inter-relationship between emergency services and other legislation (September 24, 2015)) I said:

This section can be traced back to the Fire Brigades Act 1884 (NSW). The reference to ‘all possible speed’ back in 1884 may or may not have had reference to such things as ‘speed limits’. Today however, one could not read the Act as authorizing fire brigades to operate without reference to the road rules in order to ‘proceed with all speed’. For example, it may be quicker to proceed now rather than wait for a sober and competent driver but that would not justify driving unlicensed, whilst intoxicated or at a speed dangerous to the public.

Some statutory provisions impose a ‘duty’ on a statutory authority.  Sometimes a person who suffers a loss can sue for ‘breach of statutory duty’ but only if it is clear from the Act that the parliament intended to give individuals a right to a private remedy. In other cases the only remedy may be an action to require an authority to perform its duty under the Act.  Sometimes the provision is just a general statement setting out the intended direction of the agency.  Section 11 falls within that last category.

In Bennet and Wood v Orange City Council (1967) 67 SR(NSW) 426 the plaintiffs sued the Council for negligence – the council, in turn, joined the Commissioner for NSW Fire Brigades alleging that they were liable for failing to proceed with ‘all speed’ as required by the then Fire Brigades Act 1909 (NSW) s 28.    The court held that the section gave rise to no private right of action, that is it was not intended that anyone could sue for failing to comply with the section – the headnote (a summary but not a part of the court’s reasons) says that the effect of the case was to hold that section 28 was ‘merely descriptive of the obligations of the Board…’ (p 426).     In essence s 28 (and now s 11) are there to remind the Commissioner what the fire brigades are supposed to do and what his job is, but it doesn’t give rise to an actual legally enforceable obligation.

Even if there was an obligation the section can’t be read literally.  If it was all fire appliances would be racing cars and fire appliances would run over pedestrians on their way to fires because stopping either to let them cross or to attend their injuries would reduce the speed of the response.  To procced with ‘all speed’ has to be read as with all practicable or reasonable speed and that has to take into account the allocation of resources – ensuring that coverage continues across the Fire District, the traffic at a given time of day, keeping a separation so appliances don’t run into each other when proceeding to a fire etc.

If the brigades could not despatch a closer retained crew, even though they may take longer than a permanent crew that is already ‘on station’ but further away then there would be no point in keeping a retained station.  Alternatively the permanent crew would be sent to every fire and retained firefighters then called up to provide ongoing coverage – a rather unsatisfying role for the retained firefighters.    Rather the reference to ‘all speed’ has to be read as taking into account the time it takes for the retained firefighters to get to the station and then turn out.   That it takes time for that to happen does not mean they are not responding with all ‘reasonable’ speed for that particular station.

Conclusion

Section 11 of the Fire Brigades Act 1989 (NSW) is descriptive and does not impose any obligation that can be enforced by a person who is aggrieved that the brigades did not respond quickly enough.  The reference to ‘all speed’ has to be read as ‘all reasonable speed’ and that has to take into account all the circumstances including that the area where the fire occurred is protected by a retained rather than permanent fire crew.

FRNSW is meeting its obligations if it chooses to respond a’ closer resource distance wise rather than the quickest timewise’.


Categories: Researchers

Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police Part 2

5 October, 2015 - 20:13

The reason for this part 2 is that I have now been provided with a copy of the Magistrate’s reasons which can be found here: Bonde v Morrison.

As we know the accused was found guilty of assaulting the paramedic.   When originally approached by paramedics he had refused their aid and they had left him. Later he appeared to be unconscious and his friends called an ambulance. This time Mr Morrison agreed to be transported by rejected any physical contact. When he appeared to lapse into unconsciousness, the paramedic did a ‘eyelash flick’ to try to determine if he was in fact unconscious. He wasn’t and he reacted by kicking the paramedic and threatening him. Mr Morrison was then restrained by the treating paramedic and a friend that was accompanying him in the ambulance.

The magistrate found that Mr Morrison’s actions were voluntary and intentional and the paramedic’s actions were justified by his ‘duty’ (which, with respect, I would suggest is not the law. The real question was whether it feel within the doctrine of necessity ie it was not possible to communicate and he did only that which was reasonable). In any event the Magistrate also found that the actions by Mr Morrison were not in self-defence but ‘retaliating in anger’.

With respect to the police and the hospital the issue was more complex. The doctor said he decided to sedate the patient because of his ‘duty of care’ to other staff and to the patient.   He said that it was Mr Morrison’s conduct at the hospital that led to the decision to administer sedation. The nursing notes did not however match the timing of the doctor’s evidence.   The evidence supported the conclusion that Mr Morrison was calm in hospital until an attempt to administer the drugs was made, and that the doctor’s decision was based on the report he had received from the ambulance en route, and not from any assessment he made of the patient.

At [34]-[36] the Magistrate said:

The evidence discussed above strongly supports the conclusion that the decision was made administer sedation as a pre-emptive response to the history reported by the ambulance officers when they contacted the hospital to request security assistance. It supports the conclusion that the defendant was calm, until an attempt was made within minutes of him entering the hospital to inject him with a sedative drug. There is no evidence that he was given any explanation of that intended action. I reject the evidence of Dr Tyrrell who says that he made the decision to administer sedation because he observed the defendant acting aggressively and violently towards staff. I am satisfied that the defendant became aggressive and violent in the Emergency Department only after he realised that an attempt was to be made to inject him with an unknown drug, against his will…

There is no doubt that he expressed aggressively and loudly that he did not want the injection. He was then facing a situation in which he was being forcibly restrained and injected with a drug without his consent and without information as to the identify the drug. There is no evidence that he was provided with any information as to the purpose, nature or risks of the injection. In any event, he was entitled to refuse treatment. The injection into his body of an unknown drug was a gross violation of his personal security and integrity and, viewed objectively, justified the use of commensurate force in self-defence. The fact that several persons were attempting to restrain him for the purpose of leaving him vulnerable to the injection increased the level of force that would be considered reasonable in the circumstances.

We can see that the critical issue here was consent. Mr Morrison may have behaved violently and unreasonably in the ambulance but once in hospital he was calm.   A doctor’s duty and authority to treat a person depends on either consent or some other lawful authority.   Mr Morrison didn’t consent to the administration of the drugs because he was never asked. The doctor claimed to have seen Mr Morrison being violent but that was not the evidence of others including the nursing records. The doctor was taking pre-emptive action but in that case the decision was not a treatment taken in Mr Morrison’s best interests – it was not a medical treatment decision. The decision may well have been different if Mr Morrison was being violent in circumstances where the staff could not communicate with him or if he was not competent (as discussed in Part 1). But that was not the situation here.

Had Mr Morrison been asked he would, no doubt, have refused the sedation but given he was being calm, he presumably did not need it. As noted in Part 1 ‘all medical treatment is preceded by the patient’s choice to undergo it’ (emphasis added).   If it was possible to communicate with Mr Morrison the doctrine of necessity could not apply to authorise treatment without consent.

Remember too:

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

It doesn’t matter whether the persons are trying to help or harm.

Mr Morrison’s actions were, in the Magistrate’s opinion, were reasonable because he found himself being restrained – assaulted – by multiple people seeking to inject him with a drug where he didn’t know what it was or what it was for and he had made it clear he didn’t want it.  Many of us would think that if it was doctors, nurses and police that were trying to restrain us we should comply and that is a very ‘safe’ option, but the law says we don’t have to – you don’t have to stop and answer police questions, you don’t have to go with police when they ask and you don’t have to accept or receive treatment offered by medical staff and the law recognises that primacy.  Honouring that – allowing people to make their own decisions if they can do so – is a fundamental legal tenant and more important than saving lives hence the right of people to refuse treatment even if that refusal will kill them.  And the right of people to resist the application of unlawful force.


Categories: Researchers

Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police

5 October, 2015 - 17:46

A number of people have asked me to comment on this story – Caroline Tang, ‘Drunk punched policeman in LGH in self-defence: magistrate’ The Examiner (Online) 2 October 2015.   The gist of the story is that the accused had consumed a considerable amount of alcohol during the course of an evening. At some time he had been knocked unconscious and paramedics were called.

  • Whilst being transported to hospital he kicked the paramedic in the face and threatened to kill him and his family. He also threatened to charge the paramedic with assault if he touched him.
  • At 4.13am he arrived at hospital. At 4.50am he had a blood alcohol concentration of 0.2 or 4 times the legal driving limit.   The treating doctor ‘made the decision to sedate Morrison because he had a ‘‘duty of care’’ towards him and staff, while Morrison’s erratic conduct and evidence of head injuries led him to believe he might have had a bleed on the brain or skull fracture.’
  • The ‘previously calm Morrison had expressed aggressively and loudly that he did not want an injection when he saw hospital staff approach him with a needle’.
  • ‘Several persons’ attempted to restrain him; presumably one of those persons was the police officer who was struck ‘twice to the face’.
  • The Magistrate found that Mr Morrison ‘acted in lawful self-defence when he punched and swore at a policeman who was helping to restrain him, because Launceston General Hospital staff injected him three times with a sedative after he exercised his right to refuse treatment.’
  • Mr Morrison was convicted of assaulting the paramedic and fined $700.

These facts are taken entirely from the newspaper report. At the time of writing I have no access to the actual decision of the magistrate, a matter to which I will return in a minute. I will however address some issues raised via Facebook.

The first question is ‘Has this case set a dangerous precedent for paramedics?’ to which the answer, at least from a lawyer’s perspective, is ‘no it hasn’t’.   A precedent (in legal terms) is a prior decision where a superior court – a court of appeal or the High Court of Australia – makes a ruling on the law that other lower courts have to follow.    Magistrate’s court sit at the bottom of the judicial hierarchy so a decision of a magistrate does not create a ‘precedent’ that any other court has to follow.   Evidence of that can be found by looking at a legal database such as the Australian Legal Information Institution (or AustLII). AustLII provides access to all the decisions of the High Court and the state’s appeal courts, but very little from Magistrates. The database from the Tasmanian Magistrate’s Courts contains only 8 decisions for 2015. Magistrate’s courts are the busiest courts dealing with many hundreds of cases a year. It would be impossible and unnecessary to report them all. Clearly someone decides which one’s say something interesting about the law and puts them up here, but it’s not all of them, it’s not even close to most of them. Whether this case will ever get ‘reported’ remains to be seen, but it hasn’t been put up there yet.

Magistrates’ decisions usually depend little on the law and most on the facts. The right of a person to refuse treatment if they are competent is not an issue. The issue in this case is the facts – was this person competent? Where his actions reasonable? We might all agree (from the facts in the newspaper) that the answers are ‘no’ but we don’t have the evidence. If the Magistrate found the answers to those questions were ‘yes’ then that is a ruling on facts, not law. A ruling on the facts is never a precedent. If the magistrate found that this accused, with a BAC of 0.2 was still competent, that in no way says whether the next defendant with that BAC will be competent. The facts of each case are necessarily different.

Another comment says

‘‘The injection into his body of an unknown drug was a gross violation of his personal security and integrity…” Its called medical treatment?!

It may indeed be called medical treatment but we don’t have to accept medical treatment. As the High Court said Rogers v Whitaker [1992] HCA 58, [14]:

… except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it. In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended’.

If this defendant was being approached by multiple people to receive an injection which he had ‘expressed aggressively and loudly that he did not want’ then that is a violation of personal integrity. The days when people had to accept treatment that they don’t want, even though it’s objectively in their best interests, are long gone.   In Collins v Wilcock [1984] 1 WLR 1172 at 1177 Lord Justice Goff 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 least touching of another is anger is a battery.” The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3, p. 120:

“the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.”

The effect is that everybody is protected not only against physical injury but against any from of physical molestation.

To administer the treatment in question there had to be a lawful justification and clearly consent was not available.

Another correspondent wrote:

Once upon a time I learnt that someone who is drunk is mentally not capable to make decisions on his own behalf and as an ambo you have the duty of care to administer necessary medication assuming his/her consent.

That does sound like what a lot of people have been taught, but it is wrong.   The mere fact that a person is drunk does not mean they are unable to make decisions.  In In Re MB the court (Lady Justice Butler-Sloss, Lord Justice Saville and Lord Justice Ward) said (at [30]):

A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when

(a)       the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question.

(b)      the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision.

The person’s intoxication may well affect a person’s capacity under both (a) and (b). A reduced capacity does not mean no capacity. The question is not whether a person is intoxicated but whether they are able to make the judgements required under (a) and (b) above.

If a person is not capable of making a decision, reasonable treatment may be given but you cannot assume consent. Rather the relevant law is that of necessity. In Re F [1990] 2 AC 1 Lord Goff said:

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

The problem with the notion of ‘assumed’ consent was that it provided for the legal fiction of assuming consent when people simply could not consent (eg children) or when people had clearly indicated they did not want the treatment.

The High Court did say ‘except in cases of emergency or necessity’ but the terms are synonymous in that context.  There is not a separate doctrine of ’emergency’ and ‘necessity’ – there is only a doctrine of necessity (see In Re F [1990] 2 AC 1 and also my book Emergency Law (4th ed, Federation Press, 2013, pp 44-45).  It follows that necessity is a defence but not when a person who is competent (see In Re MB above) has refused consent, even when others think the proposed treatment is indicated by their condition.  As noted above, the fact that the person was intoxicated does not mean they could not make a decision.  If they can, and they communicate their wishes (as Mr Morrison did) then necessity cannot be a justification.

So are ‘paramedics are supposed to ignore someone who doesn’t think they need treatment?’ “Ignore” may be too strong, but you can’t treat people who refuse. Paramedics may take some comfort from the decision of the NSW Supreme Court in Neal v NSW Ambulance [2008] NSWCA 346. Mr Neal refused treatment but alleged the treating paramedics should have raised their concerns regarding a possible head injury with the police who could have detained Mr Neal and taken him to hospital. Mr Neal lost the case on the basis that even if he had been taken to hospital he would have refused treatment there so the eventual, poor outcome would have happened anyway. For the paramedics, the comfort comes from the finding in the court at first instance, and not challenged on appeal, that they could not treat Mr Neal as they did not have his consent.

Paramedics may also take comfort from the High Court’s decision in Stuart v Kirkland-Veenstra [2009] HCA 15. In that case the widow of Mr Veenstra sued Victoria police for failing to take her husband into custody when they found him sitting in a car with a pipe from the exhaust into the driver’s compartment.   The police considered that Mr Veenstra was not demonstrating evidence of a mental illness so they had no power to detain him under the Mental Health Act 1986 (Vic).   The police were not liable even though Mr Veenstra took his own life later that day.

There is no duty to rescue and the law does not put saving life as the absolute priority or obligation of health professionals including paramedics. Their duty has to be limited by the patient’s wishes. So yes, if a person appears to be competent and refuses treatment that has to be honoured but that doesn’t mean people should be ignored. There may be obligations to warn people, or those with them of the paramedics concerns but treatment cannot be imposed.

Now here is the problem. In this case and in Mr Neal’s case there is a difficulty in assessing whether or not a person is competent (see Steer, B., ‘Paramedics, consent and refusal – are we competent?’ (2012) 5(1) Australasian Journal of Paramedicine Article 4) and whether or not their refusal is competent, informed and applies to the current condition (In Re T [1992] EWCA Civ 18).

In In Re F [1990] 2 AC 1 Lord Bridge of Harwich said:

It would be intolerable for members of the medical, nursing and other professions devoted to the care of the sick that, in caring for those lacking the capacity to consent to treatment they should be put in the dilemma that, if they administer the treatment which they believe to be in the patient’s best interests, acting with due skill and care, they run the risk of being held guilty of trespass to the person, but if they withhold that treatment, they may be in breach of a duty of care owed to the patient.

But that ‘intolerable’ burden is the law – as Lord Justice Staughtan said in In Re T [1992] EWCA Civ 18, [60] and [61]:

The notion that consent or refusal of consent may not be a true consent or refusal presents a serious problem for doctors… The surgeon will be liable in damages if he operates when there is a valid refusal of consent, and liable in damages if he fails to operate in accordance with the principle of necessity when there was no valid decision by the patient…

Some will say that, when there is doubt whether an apparent refusal of consent is valid in circumstances of urgent necessity, the decision of a doctor acting in good faith ought to be conclusive… However, I cannot find authority that the decision of a doctor as to the existence or refusal of consent is sufficient protection, if the law subsequently decides otherwise. So the medical profession, in the future as in the past, must bear the responsibility unless it is possible to obtain a decision from the courts.

This ruling is equally applicable to paramedics, save that paramedics can be protected by statutory protection such as that found in the Ambulance Service Act 1982 (Tas) s 41.

Conclusion

Remember we don’t know the facts of this case – but what we might infer is that Mr Morrison was pretty insistent – in fact he ‘expressed aggressively and loudly that he did not want an injection’.

  • A person is entitled to refuse consent.
  • Without consent the treatment can only be justified by necessity, which does not allow treatment that is contrary to the known wishes of the person.
  • If the person did not have the capacity to refuse consent then their apparent refusal is of no legal effect and treatment may be given.
  • Determining whether or not a person is competent and has refused treatment is a difficult decision and under current law ‘good faith’ is not a defence (save for cases where statutes have been enacted to give a ‘good faith’ defence). It follows that a health professional can be liable for treating someone who has given a valid refusal, but negligent for failing to treat if the consent was not valid. That this is difficult, if not intolerable, is not in question, but making hard decisions is what being a professional is all about.
  • If a person has refused treatment then they are entitled to use ‘reasonable force’ to resist an assault (Criminal Code 1924 (Tas) s 46).

Having said that I make no comment at all on whether or not the conduct reported in the paper was ‘reasonable’. It’s hard to imagine how a magistrate came to that conclusion but without access to the Magistrate’s reasons I can’t comment. The conduct against the paramedic was not reasonable hence the conviction.


Categories: Researchers

Carrying and using Methoxyflurane and other scheduled drugs in NSW

3 October, 2015 - 21:47

A volunteer and Remote Area First Aid instructor in NSW asks a question about the administration of penthrox (Methoxyflurane).   He says that the advice he’s received form the Registered Training organization is:

  • Only be possession of penthrox with a prescription from (your) doctor
  • When delivering penthrox do it as exactly as you have been trained
  • Do not go ever go beyond your level of training

He asks

Is this advice correct?

The relevant law here is the Poisons and Therapeutic Goods Act 1966 (NSW) and the Poisons List that is made under s 8 of that Act (though it should be noted that this Act, along with its equivalent in other jurisdictions is given effect to a national scheme). The current NSW poisons list can be found on the NSW Health website. Methoxyflurane is listed in Schedule 4.

Schedule 4 is for

Substances which in the public interest should be supplied only upon the written prescription of a medical practitioner, nurse practitioner … midwife practitioner … dentist, optometrist … podiatrist … or veterinary practitioner.

It is an offence (s 16) to be in possession of a schedule 4 substance unless the person is an appropriately authorized health professional, the drug has been prescribed for them or the person has been authorized by the Director General of Health:

… to obtain possession of the prescribed restricted substance for the purposes of the person’s profession or employment and obtains, or attempts to obtain, as the case may be, possession of the prescribed restricted substance in accordance with any conditions subject to which the person is so authorised

or

the person is licensed or otherwise authorised by this Act or the regulations to obtain possession of the substance for the purposes of his or her profession or employment.

The Director-General of Health may also issue authorities to allow people to possess and use scheduled drugs Poisons and Therapeutic Goods Regulation 2008 (NSW) r 170.

  • Only be possession of penthrox with a prescription from (your) doctor

The Poisons and Therapeutic Goods Regulation 2008 (NSW) r 33(1) provides that ‘A medical practitioner must not issue a prescription for a restricted [ie Schedule 4] substance otherwise than for medical treatment’.   The prescription must contain ‘the name and address of the patient’ (r 35(1)(b)).  A medical practitioner cannot issue a prescription to allow someone to possess a scheduled drug for administration to an as yet unidentified patient as part of first aid (see also Doctors delegating authority to carry drugs (August 20, 2014)).

It follows that having a prescription from your doctor is relevant if the drug has been prescribed for you and your medical treatment. It is irrelevant if the purpose of having the drug is to give it to someone else in the course of first aid.    A prescription from your doctor cannot lawfully authorize you to carry drugs to give to someone else.

  • When delivering penthrox do it as exactly as you have been trained

If you have a license or authority to carry a scheduled drug, you must comply with any terms of that authority (r 171).

A number of people are authorized to possess and use Methoxyflurane in first aid. These authorities are set out in Schedule C to the Poisons and Therapeutic Goods Regulation 2008 (NSW). They are:

  • A person who holds a current occupational first-aid certificate approved by the WorkCover Authority in accordance with the regulations under the Occupational Health and Safety Act 2000 … ([9]);
  • A person who is trained and authorised to administer first aid at a mine (within the meaning of the Work Health and Safety (Mines) Act 2013) … ([11]); and
  • A ski patroller who holds a valid first aid certificate issued by the Australian Ski Patrol Association for use in ski patrol duties … ([14]).

This list does not include a person qualified in remote area first aid. Unfortunately the list in Schedule C is not a complete list. Schedule C contains authorities made under regulation 129. As noted however, the Director General of Health may also grant authorities under regulation 170. These authorities are not publically accessible.

An authority under regulation 170 can be given to a particular person, or a class of persons. The DG may have given an authority to the effect that any person who has completed ‘the training package SISOOPS305A – Provide first aid in a remote location’ is entitled to possess and administer methoxyflurane but I cannot confirm that.

If that is the case (and let us assume that it is) then presumably the training reflects the terms and conditions of that authority – in which case yes, you must use and administer the penthrox only as you have been trained to do so and in circumstances provided for in that training.


Categories: Researchers

Rank v responsibility; law v policy – amended

2 October, 2015 - 15:00

This cryptic heading reflects the issues raised in this question from a NSW RFS volunteer:

One of our members who was previously not an officer of the brigade gained employment with the RFS and as part of his employment was given a staff rank that outranks any of the officers in the brigade. This member has since informed us that he also carries that rank into his volunteer time with the brigade and that as a consequence he has to wear his staff rank to jobs with the brigade and if he is unhappy with the way an incident is being run by the brigade he has a legal obligation to take over control of the incident, and that he is the one that will be responsible if something goes wrong as he would be the senior officer on scene.

I was hoping if you could advise:

1) Whether staff rank does carry across to volunteer time, even if the person hasn’t been voted in as an officer by the brigade;

2) If rank does carry across does the member in question have a legal obligation to take control if they are unhappy with the way an incident is being run;

3) If something were to go pear shaped at an incident where another officer was the IC but the member with staff rank was present would the IC be responsible or the senior ranked member on scene?

The reference to ‘rank v responsibility’ should be obvious, but ‘law v policy’?  That is relevant because the whole role of the Incident Controller (the IC) is a matter of policy not law and it is law that ‘trumps’.  Let me explore the issues to explain.

The starting point for this discussion has to be the Rule Fires Act 1997 (NSW) s 12 ‘Functions of Commissioner’. According to that section the Commissioner is responsible ‘for managing and controlling the activities of the Service’. He or she ‘may determine the various duties that members of the staff of the Service are required to perform’ and determine the ‘ranks of members of the Service’.

The Commissioner has determined issues of rank and these are set out in Service Standard 1.2.1 NSW RFS Ranking and Rank Insignia.  The operational ranks of members are set out in SOP 1.2.1-1 [1]. They are:

(a) Commissioner

(b) Deputy Commissioner

(c) Assistant Commissioner

(d) Chief Superintendent

(e) Superintendent

(f) Inspector

(g) Officer L3/Group Captain

(h) Officer L2/Deputy Group Captain

(i) Captain

(j) Officer L1

(k) Senior Deputy Captain

(l) Deputy Captain

(m) State Mitigation Support Service (SMSS) Crew Leader

Operational ranks are distinguished from operational support such as communications, catering and transport (see [3]). The ranks of Group Captain, Deputy Group Captain, Captain, Senior Deputy Captain, Deputy Captain and State Mitigation Support Service Crew Leader are all volunteer ranks.

A staff rank holder does not necessarily outrank a volunteer; an Officer L3 and Group Captain are the same rank. A volunteer Captain outranks an Officer L1.

The ‘General powers of rural fire brigade officers and others’ to take action ‘for the purpose of controlling or suppressing a fire or protecting persons, property or the environment from an existing or imminent danger arising out of a fire, incident or other emergency’ may be exercised by Deputy Captain or above (Rural Fires Act 1997 (NSW) s 22; Service Standard 1.3.1 Delegations and Authorisations; Service Standard 1.3.2 Powers of Officers).

Both the service standards and the legislation are silent on the exact interplay between ranks. There is no clear statement that there is an obligation to obey the orders of a senior officer though such obligation must be implied.

The role of staff in volunteer brigades is governed by Service Standard 2.1.9 Participation by Permanent Staff in Brigade Activities.  It says ‘Permanent members of staff of the NSW RFS may also be members of, and participate in, the activities of a rural fire brigade’. It doesn’t say whether they should wear their staff rank but there is only one Rural Fire Service, the service consists of the Commissioner, employed staff and volunteer firefighters (Rural Fires Act 1997 (NSW) s 8). It stands to reason that a person is employed by the Rural Fire Service then when they have their uniform on it should include the rank slides that reflect their appointment.

The first question I was asked was ‘Does staff rank does carry across to volunteer time, even if the person hasn’t been voted in as an officer by the brigade?’ My reading of Service Standards 1.2.1, 2.1.9 and the Rural Fires Act s 8 is that there being only one Rural Fire Service a person’s appointment is their appointment whenever they responding as part of that service and it would not make a difference if they were responding in either a staff volunteer capacity.

The next question triggers issues between law and responsibility. AIIMS (4th ed, p 12) says ‘An Incident Controller is appointed for every incident and is responsible and accountable for all of the functions of incident management’.  Readers of that manual would be forgiven for thinking that position reflects, or is reflect in, the law but that is not the case. The role of ‘Incident Controller’ is not expressed in law.   If a matter goes ‘pear shaped’ the person who will always be ‘responsible’ is the Commissioner. The chief officers of Victoria Police, the Country Fire Authority and the Department of Sustainability and Environment certainly discovered during the 2009 Victorian Bushfires Royal Commission that responsibility rested with them, not with their appointed incident controllers (for further discussion on the relationship between the IC and the chain of command see my book Emergency Law (Federation Press, 4th ed, 172-173).

So if ultimate responsibility rests with the Commissioner it is up to the Commissioner to determine how the roles of IC and people of various ranks are to be managed.  One can imagine that a future post event inquiry, depending on the outcome, the question will be relevant.

  • If a senior officer insists that they are to take on the role of IC and displaces a more experienced and qualified ‘junior’ officer then the issue will be why should that happen and the ultimate recommendation will be ‘IC’s should be appointed on the basis of skills and qualifications not rank’ (see 2009 Victorian Bushfires Royal Commission, Recommendation 18 – ‘The Country Fire Authority and the Department of Sustainability and Environment amend their procedures to require that a suitably experienced, qualified and competent person be appointed as Incident Controller, regardless of the control agency for the fire’. Change ‘regardless of the control agency for the fire’ ‘regardless of rank’ and you can see how this will be relevant.)
  • If a senior officer allows a junior officer to remain as IC but there is a poor outcome, the issue will be why didn’t the senior officer supervise the junior officer and either counsel him or her or take over the role when it became apparent things were not working out (see 2009 Victorian Bushfires Royal Commission, Final Report [2.3.5] The Fundamental Responsibility of those in Command’).

When the Commissioner of the Rural Fire Service makes a declaration under s 44 the declaration nominates who is to be the IC.  That person then has the Commissioner’s delegation with respect to the fire and it would not be appropriate for a person of senior rank to the IC, but subordinate rank to the Commissioner, to intervene and somehow remove the person’s appointment.  But the idea of AIIMS is that every incident has an incident controller and they may not be directly appointed by the Commissioner.  In that case the person of senior rank does have a ‘command’ responsibility.

So can I answer the final two questions?

2) If rank does carry across does the member in question have a legal obligation to take control if they are unhappy with the way an incident is being run; and

3) If something were to go pear shaped at an incident where another officer was the IC but the member with staff rank was present would the IC be responsible or the senior ranked member on scene?

The ranked member has a legal obligation to do something if he or she is unhappy with the way the incident is being run.  Service Standard 2.1.9 Participation by Permanent Staff in Brigade Activities [2.8] says (emphasis added):

A permanent member of the staff who participates in a brigade activity as a member of a brigade: (a) does so as a volunteer; and (b) is subject to the direction and control of the relevant brigade, group and district officers unless a safety issue or an inappropriate operational strategy is planned or being undertaken, in which case the issue should immediately be raised with the appropriate officer.

If the incident goes ‘pear shaped’ then everyone will be responsible for their decisions and actions.  The IC will be responsible for what or she did and if the ranked member thought there was an issue he or she will be responsible for explaining what they did about that and if they did nothing, why not.


Categories: Researchers

Paramedics and passive smoking

1 October, 2015 - 11:06

This question comes from a NSW Paramedic.

NSW Ambulance have policy directives in regards to smoking on ambulance stations, NSW Health buildings, NSW Ambulance vehicles for example within 20 metres of ambulance vehicles. I have always requested, sometimes demanded that patients, patient family and friends or bystanders not smoke whilst I am assessing and treating patient. Even in patient’s homes. I always state that I am entitled to work in a smoke-free environment. My question is, however, is it actually lawful to request that they (patients, bystanders etc) refrain or cease smoking when I’m assessing/treating patients?

The easy answer is that of course it’s lawful to request that people cease smoking, you don’t need any lawful authority to make the request and if they comply all well and good. The real question is can you compel them to stop smoking and that is a more complex question. We can consider different scenarios where the answer is more, or less, clear.

The obvious example we could not only request but insist that person stop smoking is when you are treating a patient in the presence of hazardous, flammable material such as fuel. If I imagine you are a car accident and there is leaking fuel there is also likely to be, in attendance, police and fire brigade. At a Hazardous Materials incident the officer in charge of Fire and Rescue NSW as various powers including the power to order a person to leave the area (Fire Brigades Act 1989 (NSW) ss 13 and 19). Equally, police have power to direct a person to leave a danger area in order to protect them or others from “injury or death” (State Emergency and Rescue Management Act 1989 (NSW) s 60L) Clearly of a person was smoking and refused to request stop the appropriate response would be to ask the Fire Brigade or police to take appropriate action.

There may be examples where smoking is causing a hazard but police or fire brigade are not in attendance. The obvious example would be where paramedics are using oxygen to treat a person and a bystander assists on smoking. Let us assume, for the sake of the argument, that this is in the patient’s home. Certainly the danger should be made clear to the smoker for lawful authority there is to take any action is unclear.

A person who is at someone else’s place of work has an obligation to take reasonable care for their own and others’ safety (Work Health and Safety Act 2011 (NSW) s 29) but they are unlikely to recognise that they are a place of work  or are bound by that particular Act in their own home. It is unlikely that SafeWork NSW (the agency that since 1 September 2015 has replaced WorkCover as the health and safety regulator in New South Wales) would be interested in investigating and prosecuting a person in the circumstances. Even if they were it is not much help at the time.

The Smoke-Free Environment Act 2000 (NSW) seeks to ‘to promote public health by reducing exposure to tobacco and other smoke in certain public places’ (s 3) and so will have no application in a private home.

It is an offence to obstruct or hinder an ambulance officer who was attempting to treat a person (Health Services Act 1997 (NSW) s 67J). However that offence requires that the obstruction or hindrance is ‘intentional’. A person who is smoking while a paramedic is treating their friend or relative is probably not intending to obstruct or hinder the officer and it would be difficult to argue that by smoking the officer was so obstructed or hindered. The case may be clearer where a paramedic has to compromise their treatment e.g. by turning off oxygen. In that case it would be relatively easy to see the paramedic was obstructed or hindered in the performance of their duties. Whether that was intentional would depend on the facts but if the smoker had been told that they had to stop smoking or move away, or the paramedic would not be able to treat their friend and if they refused than that might go some way to proving the essential elements of that offence. Prosecution for that offence at some later time will not however help at the time the treatment is being administered.

If the person wants to smoke inside the ambulance and there is clear ability to ask them to stop or to leave the vehicle. For example if a patient’s relative was to travel with them to hospital and wants a cigarette to ‘calm their nerves’ then the paramedic is entitled to refuse permission. The person is in the ambulance only with the license or permission of the paramedic and that licence can be revoked if they refused to comply with the conditions imposed by the paramedic and the ambulance service. In short you can say ‘you can’t smoking here and if you insist I’ll pull over and you have to get out’.

If the paramedic were in Victoria that he or she could, if time permitted, seek police assistance. In that state ‘a police officer is authorised to remove any person who interferes or may interfere, by his or her presence or otherwise, with the provision of care or treatment’ by operational ambulance officer (Ambulance Services Act 1986 (Vic) s 39 AB). In the Australian Capital Territory the chief officer of ACT Ambulance may ‘give directions to regulate or prohibit the movement of people, animals or vehicles; or evacuate people or animals from an area to another place’ (Emergencies Act 2004 (ACT) s 34(k) and (l)).   If that power has been delegated to individual offices (s 39) then they too could give those directions but there does not appear to be any specific legal consequences if a person fails to comply with that direction. In Tasmania it is an offence to impede a paramedic in the performance of his or her duties (Ambulance Service Act 1982 (Tas) s 39B(1)). Unlike New South Wales this offence does not require proof of an intention to impede. It is also an offence in Tasmania to fail to comply with a lawful requirement or direction given by paramedic (s 39B(3)).

Conclusion

A paramedic that is concerned about smoking by bystanders is entitled to ask them to stop. Where there is a risk they should attempt to explain that risk and if necessary it may mean they have to compromise their treatment e.g. by turning off oxygen equipment. While there are some legal obligations on the bystanders enforcing them is likely to be impossible and ineffective. It is unlikely that any use of force to stop a person smoking, in the interest in ensuring a smoke-free workplace, could be justified.

Where the smoking is creating an actual danger of fire or explosion a paramedic should seek assistance from police or the Fire Brigade.


Categories: Researchers

New Zealand fire authorities seek to recover cost of fire fighting

1 October, 2015 - 10:08

The Wanganui Chronicle in New Zealand is reporting that ‘The National Rural Fire Authority will seek more than $100,000 in costs from the person they believe is responsible for last summer’s Santoft forest fire’ (Zaryd Wilson, ‘Fire Authority seeks Blaze costs’ Wanganui Chronicle (online) 1 October 2015).

The Forest and Rural Fires Act 1977 (NZ) s 43 provides that a person who is responsible for the ‘outbreak’ of a fire is also responsible for the costs of fighting that fire and protecting neighbouring properties.  One can envisage that in many cases, particularly where the fire fighting is effective, the costs of fighting the fire may be much higher than the damages caused by the fire.   The Act also provides that the person responsible is liable to pay for the loss or damage to any property caused by the fire.

The legislation imposes strict liability, that is the liability is established without the need to prove negligence or lack of care (Garnett v Tower Insurance Limited [2011] NZCA 576. [38]). Further, ‘The harm need not be foreseeable. However, the defendant is not liable where the harm, although produced by his or her actions, was an extraordinary consequence, not a normal fact of life’ (Nelson Forests Limited v Three Tuis Limited [2013] NZHC 856, [24]).

In West v NZ Fire Service Commission  [2007] NZHC 1274 the defendant had lit and was monitoring a fire on his property.  When he realised it was approaching the property boundary he made an emergency call and requested assistance, in particular, ‘the use of a helicopter and monsoon bucket’ to extinguish the fire.  Rather than simply provide the services requested, the New Zealand Fire Service and the relevant council made their own assessment of the resources required to suppress the fire.  In an action to recover the costs of the fire fighting Mr West argued he should only be liable for the costs of the services he requested.  Not surprisingly he lost that argument.

Both West Australia (Bushfires Act 1954 (WA) s 58) and the Northern Territory (Bushfires Act (NT) s 57A) have provisions that allow for the recovery of fire fighting costs but in both of those jurisdictions, liability only arises if the person responsible has committed an offence or failed to comply with the provisions of the Act. In New Zealand the liability does not require any allegation or proof that the fire was illegally lit; liability ‘is not contingent on the one responsible having committed any offence, or any offence of a particular character. It stands quite apart from the array of offences that the 1977 [Forest and Rural Fires] Act creates’ (Department Of Conservation v Smythe [2008] NZHC 1316, [62]).


Categories: Researchers

Coroner’s inquiry into the Wambelong (Coonabarabran) bushfire, January 2013

29 September, 2015 - 18:38

Introduction

New South Wales Deputy State Coroner HCB Dillon has handed down his findings following an inquiry into the devastating bushfires of 2013 near Coonabarabran in northern New South Wales. This inquiry follows a previous Parliamentary enquiry into the same fires. Before both the parliament and the coroner a group of affected landowners known as the Coonabarabran Property Owners’ Alliance raised issues of concern with the response by the National Parks and Wildlife Service and the New South Wales Rural Fire Service. In the Parliamentary inquiry it was clear that they were alleging that there had been negligence in the response to the fire.

A coroner’s inquiry may be established to conduct an investigation into the cause and origin of a fire.   A coroner may also hold a general inquiry into a fire which includes an ‘examination of all of the circumstances concerning the fire …’ (Coroners Act 2009 (NSW) s 30). This inquiry was a ‘general inquiry’ and so extended beyond the issue of cause and origin and included a review of the planning for and response to the fire.

It has been reported that at least one member of the Coonabarabran community had hoped that the coroner would make some finding of negligence in respect of the fire.  Stephen Lill, whose farm was damaged in the fire is quoted as saying “It’s put an unbelievable strain on the people of Coonabarabran. Unfortunately we didn’t hear the negligence word mentioned there in court” (Sophie Tarr, ‘Bushfire findings ‘no comfort’ to victims’ 7News (Online) 28 September 2015). It should be no surprise that the word “negligence” did not appear in the coroner’s report. As the coroner says (at page 10):

A coronial fire inquiry is a search for truth. It is intended to be an independent, objective, fair examination of the available evidence relating to the fire. It follows that a proper inquiry is neither a witch-hunt nor a whitewash. One of the general purposes of holding coronial inquiries such as this one is to address the suspicions and fears of members of the community who have been harmed by events such as this one. Civilised societies are concerned about catastrophic harm caused to their members and try to understand those events. This may help those harmed but also enables the community to learn from their traumatic experience.

It is critical to emphasise from the outset that these proceedings have been an inquiry, not a trial or a contest. Although arguments have been put on both sides of various questions and issues, and the Alliance has not resiled from its criticisms of the NPWS, these proceedings are by definition inquisitorial in nature, not adversarial. The primary concern and focus, therefore, in this (and all coronial proceedings) has been to ascertain the facts. For this reason, there are no formal “parties”, as such, in these proceedings, with rights and interests to be adjudicated upon after they present their respective cases. Nor is it the function of this inquiry to apportion blame, although, of course, it is necessary to make findings as to the appropriateness of what was done.

Despite these comforting words it is often the case that inquiries such as this do begin to resemble adversarial trials, a most notable example being the coronial inquiry into the 2003 Canberra fires. In this case, at least judging from the final report, that does not appear to have happened here though that, no doubt, may help explain the frustration of Mr Lill and other affected property owners.

Even so, the coroner was aware of the concerns of the property owners and was conscious of the need to address them. He set out their concerns and summarised the most important ones (at page 9) as ‘… allegations or grievances [that] relate to the preparation for outbreak of the fire; the response to the fire; the back burn operation; and community notification’.  The coroner addressed each of those in the course of his report.

The coroner’s conclusions

With respect to the cause and origin of the fire the coroner found there was insufficient evidence to establish either the cause or the exact starting point of the fire.

With respect to prior preparation and hazard reduction in the Warrumbungle National Park the coroner noted that there had been plans to hazard reduction burns dating back to 2012. This had not occurred for various reasons including inappropriate weather conditions. “With the benefit of hindsight” it was found that there probably was an opportunity for the hazard reduction burn back in May 2012 but:

It is difficult … to be critical of the individual officers who, at that time, did not seize it. In their professional views, the conditions were not sufficiently favourable to carry out a successful burn during the whole period. It is true that they showed no particular urgency in searching for windows of opportunity. This was not carelessness on their part. Their approach, in the circumstances as they perceived them to be, is explicable on the basis of their aggregated experience as NPWS officers with local knowledge that catastrophic fires had not previously broken out in the park. Nevertheless, with the benefit of hindsight, it seems that any hazard reduction burns carried out in the window of opportunity … may have been beneficial…

The gist of the coroner’s finding was that the initial response to the fire was inadequate to control it but not an unreasonable response given current practices and experience. The coroner said (at p 36-37):

A lesson to be learned from this and other fires is that history is not a reliable guide to fire prediction or behaviour in the 21st century. Experience and developments in the science are undermining conventional wisdom based on history.

That is a lesson from the fire, but not a criticism of the first responders who applied their prior knowledge and experience of fires in this area.

The next issue was the response to the fires. The coroner noted that the fire was initially dealt with as a “Class I” fire which meant that was controlled locally by National Parks and Wildlife Service staff. It appears the fire was treated as a class I fire until 11am  on 13 January 2013 when it was upgraded to a class 3 fire and a declaration was made under s 44 of the Rural Fires Act 1997 (NSW). The effect of this declaration was to put the Commissioner of the Rural Fire Service in charge of all fire fighting operations.   A concern raised was the delay in upgrading the fire with the belief that had the fire been upgraded to a ‘Class 2’ fire, or a s 44 declaration made earlier, that would have brought more resources to bare and improved the outcome.   The coroner agreed that, with hindsight, it ‘seems a common sense proposition’ that a s 44 declaration should have been made earlier (p 29) but whether this ‘would have made a difference to the outcome is very difficult to say with certainty’ (p 31).

Another concern was the use of a back burn to try and contain the fire.  It was suggested that the back burn was put in when conditions were inappropriate and this had led to further spotting and the spread of the fire.  The coroner found however that the back burn made no difference to the outcome, neither controlling nor increasing the size of the fire (p 39).

Another issue was community warnings.

One of the major grievances of the Alliance and others who were affected by the fire in the region was that emergency notification came far too late to enable them to take action to save their property. (p 41).

Reference was made to the expert evidence that

… emphasised the importance of the public being pre-prepared during the fire season. [The expert witness] … noted that “during major fires, the time period between fires starting and/or breaking containment lines may be very short. That means that there is typically insufficient time to do fire preparation (eg remove fuels from around assets and, in some situations, relocate to safe zones) once the emergency notification has been made.”

Even so, the coroner did agree that a higher ‘watch and act’ warning should have been given earlier.   The problem for the IMT was that the fire prediction modelling did not suggest that the fire would cross a major road in the National Park and threaten private assets.  Unfortunately the models were inaccurate.   This was the first time the RFS had used the fire prediction system and fire ground managers were not familiar with it or its limitations.  The coroner recognised the difficult position that caused for firefighters:

… people on the ground then are caught between two stools: do they rely on their own judgment or do they rely on the prediction? What if the prediction casts doubt on their own judgments? In this, as in other fields, such as psychiatric risk assessment tools, the presumed predictive value of the tool may lead to over-reliance or complacency or, on the other hand, may lead to complete distrust of such tools. Defining what the predictive tools can and cannot do is of critical importance, especially in extreme situations. One of the vital lessons to be learned in this inquiry is that the limits of the predictive tools that are available to fire-fighting services in this country need to be clearly understood by all involved in using them.

In this case when the fire started behaving in a way that was not predicted, eg when it jumped over the road, emergency managers should have considered what they would do if they lost control of the fire and warn potentially affected communities.  He said (at p 43):

In my view, once it became clear to the controllers that a direct attack could not, for safety reasons, be carried out the next day, and that an indirect attack would be made in conditions unfavourable for back burning generally, that raised the risk of the fire breaking out. Given the rapidity with which Australian fires can develop into catastrophes, it would have been prudent to issue a Watch and Act alert on the Sunday morning.

It is interesting to compare this finding with that of the inquiry into the 2013 Tasmanian fires (Malcolm Hyde, 2013 Tasmanian Bushfires Inquiry: Volume 1 (Government of Tasmania, 2013)).  In that fire the modelling using the Phoenix-Rapidfire system was amazingly accurate.  It ‘predicted [the fire] would run south east reaching Dunalley at 3.00pm on 4 January. The fire actually reached Dunalley following this path at 3.25pm on 4 January’ (p 53).  This type of modelling was also new for the Tasmanian IMT’s and was not used as a basis to warn the affected community.   In that case the Special Investigator was critical of the IMT for not relying on the modelling.

Those two findings can be reconciled.  If the modelling suggest that a community is at risk then it is appropriate to warn them.  If the modelling does not suggest that a community is at risk but the fire starts behaving in a way that is not predicted, then experience fire managers have to apply their own knowledge and understanding to consider where the fire may go in a ‘worst case’ scenario and warn communities accordingly.

Discussion

A coroners findings are intended to identify what happened and to make recommendations for the future.  In this case the coroner made 23 recommendations. Whether they will be useful I will leave for others to judge.

As a legal commentator I can say that the coroner did not make findings that would give comfort to anyone seeking evidence of negligence.  Even if there was an unreasonable failure to properly identify the scale of the fire, to seek a s 44 declaration or to properly manage the back burn, the coroner found that these things did not contribute to the final losses.  There may have been an opportunity to issue earlier warnings but the coroner made no finding on whether that would, or would not, have made a difference.  Where he found that things could have been managed better by, for example, have pre-positioned resources given the high fire danger (Recommendation 18) , responding to the fire with resources taking into account the fires possible growth rather than current size of the fire (Recommendation 8) and taking a more active approach to warning (Recommendation 11), he found that the actions were understandable, reasonable and done in good faith.

This is how the coroner summarised the situation facing the IMT (at p 39):

On the night of 12-13 January, the NPWS incident controllers had (if they had only known it) the invidious choice of doing virtually nothing or attempting what turned out to be the impossible. Had they pulled off a miraculous save, they would hae been local heroes. Had they attempted nothing, the criticism that would have undoubtedly have followed would have been blistering and perhaps justifiably so.

And further (at p 45) they:

… were facing a situation very few people in the world ever have. Although, with the magnificent 20/20 vision hindsight gives us, it appears to me that a number of aspects of the fire could have been managed better, I have no doubt that the NPWS officers involved in this fire acted with utmost good faith and to the best of their ability in the most difficult of circumstances.

These findings are not binding on any subsequent court should the property owners proceed with a claim for compensation.  If that were to occur the evidence would need to be tested again and a court would reach its own conclusions on both the facts and the law.

Conclusion

There is no doubt that property owners who believe the fire was mis-managed and that there was culpable fault by NPWS will be disappointed by the measured nature of this report, fire managers on the other hand, may take some comfort from the understanding of the difficult choices and decisions that had to be made in a dynamic environment.


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