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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
Updated: 15 hours 26 min ago

Potential role conflict – NSW Police officer as SES volunteer (amended)

3 December, 2015 - 17:06

[A version of this post originally appeared on 2 December and dealt with questions (1) and (3), below. After that original post my correspondent got back to me with some more details and further questions so I have rewritten the post from the original and now deal with those extra issues and the further questions (2) and (4)].

I am asked about potential role conflict when a serving NSW Police officer joins the SES as a volunteer.

A couple of weeks ago a few of the members were having a chat and one of them, who is a NSW police officer, pointed out that off duty police were required to intervene if they saw something that violated the law to the point it couldn’t reasonably be ignored. A senior unit member told him that the service (SES) has a policy preventing off duty police from taking action as a police officer whilst active with the SES. This led to an interesting discussion as to the right and wrong of such a policy, and potential risk to SES team members who may be present in various hypothetical scenarios.

Afterwards I decided to find out if there was such a policy. I spoke with several people including both the Region Controller and my Local Controller and received different answers.

While the law enforcement officers in our unit know what their duties are, the grey area is how the SES views them going about their duties whilst active and clearly identifiable as SES members.

The duty of care question came up in one of the hypothetical scenarios discussed.

A team is attending a job and witnesses an assault across the road, the off duty officer goes over and attempts to stop it and both the people involved attack the officer. As the team leader and other members of the team have a duty of care to ensure the well being and safety of each other would they be required to go to the officers aid, thus endangering themselves.

For this or a similar scenario, or even a more general question like the officer needs assistance in his duties – does their team help, I have received a variety of responses from yes, whatever is needed to no, their on their own.

So my questions are,

  1. Is a police officer who is off duty and on callout with a SES team still expected to enforce the law and keep the peace as a police officer and,
  2. Does the SES have a policy preventing law enforcement officers who are active with the SES from doing their duty if required?
  3. What responsibilities does the officer’s duties place on his team leader and other team members in such an event, re: duty of care, etc?
  4. If the officer needs assistance as described in the above scenario is the team required to assist?

This is all purely hypothetical, in close to ten years as a volunteer I have never encountered any situation like this in real life.

Sworn police officers carry on the traditions from the ancient office of constable (Police Act 1990 (NSW) s 14(1)).   The office of constable is one of the oldest offices known to law and well predates organised policing. The critical aspect is that appointment to the office is personal, that is a person who is appointed a constable holds that office from the Crown, he or she carries the authority, discretion and obligation to uphold the law and keep the peace.  In R v. Metropolitan Police Commissioner; ex parte Blackburn [1968] 2 QB 118 Lord Denning said:

I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace.

He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself.

No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.

The Police Federation of England and Wales (The Office of Constable: The bedrock of modern day British policing (2008)) say:

With the Office of Constable comes personal accountability and responsibility for the protection of life and property, the prevention and detection of crime, the maintenance of law and order and the detection and prosecution of offenders.

Police officers exercise their law enforcement duties and powers, not because they are members of a police force but because they are constables. People other than police officers can also be constables (Police Act 1990 (NSW) s 82L (note that the Police (Special Provisions) Act 1901 (NSW) discussed in an earlier post – Lifesavers as law enforcers? (July 6, 2014) – was repealed on 30 November 2014) and we can recall the security officers involved in the shooting at Parramatta Police Station earlier this year were identified as ‘special constables’ (ABC News Online, 4 October 2015)).

The fact that police officers exercise powers that are personal to them, that they have as individuals not because they are employees, has given rise to complex issues when it comes to vicarious liability, workers compensation and superannuation (see Are police employees? (August 11, 2014) and Law Reform (Vicarious Liability) Act 1983 (NSW)).

Today, a NSW police officer swears (Police Regulation 2015 (NSW) r 7) to:

… well and truly serve our Sovereign Lady the Queen as a police officer without favour or affection, malice or ill-will until I am legally discharged, that I will cause Her Majesty’s peace to be kept and preserved, and that I will prevent to the best of my power all offences against that peace, and that while I continue to be a police officer I will to the best of my skill and knowledge discharge all my duties faithfully according to law. So help me God.

Even when off-duty(Police Regulation 2015 (NSW) r 9) a police officer

(a) is subject to the provisions of this Regulation and the Police Code of Conduct, and

(b) will be held responsible for any misconduct by the officer while off-duty, and

(c) unless on sick leave, may be recalled to duty as if the officer were on duty.

What constitutes misconduct is not clearly defined (Police Integrity Commission Act 1996 (NSW) s 5). Although not specifically mentioned, failure to perform one’s duties (including the duties of an off duty officer) must be misconduct.

Discussion

We can now return to the questions asked.

  1. Is a police officer who is off duty and on callout with a SES team still expected to enforce the law and keep the peace as a police officer and,

Yes, but within limits. Police have a discretion to ‘enforce’ the law, sometimes they don’t take steps, sometimes they issue a caution or have a ‘chat’ to set people straight. It is not the case that every officer has to prosecute every offence he or she observes. “He must decide whether or not suspected persons are to be prosecuted” not he must prosecute every offender he observes. [I’ll use ‘he’ as my correspondent refers to this person as a ‘he’ and to avoid the complexity of writing ‘he or she’ constantly, but recognising of course the many women in policing]. The officer in question has to consider issues such as the seriousness of the offence, conflicting duties (such as the fact they are a member of the SES team and safety may be compromised if they take on a policing role and step out of the SES team), that if he tries to exercise policing powers people are unlikely to recognise that he is a police officer (given he’ll be wearing Orange not Blue) and if people think an SES volunteer is trying to big note himself that may well lead to more, rather than less conflict etc.   But if he detects a serious offence and in particular observes a serious offence being committed then he may well determine that he must act immediately.

We can give that all some flavour.   Assume the SES are called to help with flooding at a home and whilst there the officer observes that there is a hydroponic drug farm in operation. He might decide that given he’s the only police officer there, that discretion is the better part of valour and that he will make a statement to record what he observes and either contact police and ask them to attend (as any SES operator might do) or return later, on duty and with a search warrant, to enforce the law.   This may be reasonable if there is no suggestion that the offenders or evidence are likely to be removed and if the people involved have no reason to think, at that stage, they have been observed by police.

On the other hand, if when attending an SES task he observes that a person is committing an offence, perhaps they are engaged in act of violence or at a road crash the driver is obviously intoxicated and attempting to run away, then the officer may well have to put himself back ‘on duty’ and make an arrest.

  1. Does the SES have a policy preventing law enforcement officers who are active with the SES from doing their duty if required?

I’m not aware of such a policy but I don’t need to go and look for it because such a policy, if it did exist, would be meaningless and unenforceable. The SES can’t tell a police officer to ignore his or her sworn and statutory duty any more than it could tell a doctor not to treat a person who needs medical care or tell a driver, or anyone else, that they are not required or allowed to comply with the law.

  1. If so, what responsibilities does this place on his team leader and other team members in such an event, re: duty of care, etc?

Like anything it means you have to plan for such an eventuality. I suspect the issue is largely theoretical (ie it won’t happen often if at all) but clearly you need to think about ‘what are we going to do if…’ and have a plan. Speak to the officer involved about what he thinks could happen and what is an appropriate response. What circumstances does he envisage that will compel him to step out of his SES role and back into his police role? What will you do if that happens? Is there any limitation that his policing role puts on his volunteering?

  1. If the officer needs assistance as described in the above scenario is the team required to assist?

That’s a more complex question – but I think ‘required’ is the problem.

One of the functions of the SES is to ‘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’ (State Emergency Service Act 1989 (NSW) s 8(1)(g)). That can’t be seen as a clear obligation, police (or the other emergency services) could ask the SES to assist and the SES could reasonably say they are unable to do so if they don’t have the resources or the task they are being asked to do is beyond the training or capacity of the members or is too dangerous.   Fire and Rescue NSW could ask the SES to send members into a burning building to rescue people and the SES could rightly refuse. Police could ask the SES to provide members for an armed response team and again the SES could rightly refuse. It follows that if the police officer decides to intervene in a violent incident he could request SES assistance and the SES could assist, but they would not be ‘required’ to given such an action is well outside SES roles and responsibilities. It would, however, be a ‘bad look’ if the SES refused to assist not only a police officer but a fellow member if that member required assistance and if the members were reasonably capable of providing such assistance. The idea that one SES member, albeit a police officer, is struggling to make an arrest whilst his colleagues, also dressed in Orange, did nothing, cannot really be imagined. If they did assist the members would certainly be performing an SES function.

Putting aside that the people are members of the SES anyone can go to assist police should the police require it but there is no obligation to do so. Equally anyone can make an arrest if they observe a person ‘in the act of committing an offence’ (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 100).

Certainly there would be a WHS issue to ensure so far as is practicable the health and safety of the members. There would not be a duty to protect the police officer who at that point is acting as a police officer/constable not a member of the SES and one would have to consider the risk to the other members but as always the obligation is not to ensure no risk (if it was the SES wouldn’t turn out to do anything). Going to help a police officer to make an arrest in times of risk to the officer and oneself is the sort of conduct that leads to a medal, not a WHS prosecution!

Conclusion

  1. Is a police officer who is off duty and on callout with a SES team still expected to enforce the law and keep the peace as a police officer?

Yes

  1. Does the SES have a policy preventing law enforcement officers who are active with the SES from doing their duty if required?

Not that I’m aware of, but if it did it would be meaningless and unenforceable.

  1. What responsibilities does the officer’s duties place on his team leader and other team members in such an event, re: duty of care, etc?

To plan for such things, as you must plan for many eventualities such as where members leave a team due to injury, or some other emergency occurs in the vicinity of the team and takes them away from their original task.

  1. If the officer needs assistance as described in the above scenario is the team required to assist?

Required? No; able to? Yes. Should do? Depends on all the circumstances.

 


Categories: Researchers

“Stereosonic 2015: Paramedic company gags staff from talking to police after woman dies”

1 December, 2015 - 08:25

That’s the heading of article appearing on the Sydney Morning Herald Online.  The article says “The private paramedic company contracted to provide first aid services to the Stereosonic music festival has banned its staff from talking to NSW Police after the death of Sydney pharmacist Sylvia Choi.”

Of course I’m going to make no comment on the treatment of this young woman or the circumstances of her death, but I will comment on this post and many comments that appear on FaceBook.

Some commentators have said ‘What has this guy got to hide banning staff talking to police. Last time I heard hindering a police investigation was a crime’ and ‘pretty sure they have no choice, they will have to give a statement if asked’ In fact no-one has to answer police questions or give a statement to police.   The certain of bodies that can compel a person to answer questions are a Royal Commission or a standing institution like the Independent Commission Against Corruption (ICAC) in NSW.   The agencies records will all be subject to subpoena or, if there is evidence of a crime, search warrant and a person can be compelled to attend court but it’s pretty unusual to subpoena someone to come to court if you don’t know what they are going to say.

In the article the operator is quoted as saying ‘”They [NSW Police] come to me, I own the company, they don’t talk to anybody at the end of the queue, they call the head of the company.”  There is some validity in that. As the company operator he would be the appropriate person to approach in order for police to get the roster and to work with him to arrange a time to interview staff and to ensure that the staff are properly supported. As one commentator said:

It’s his responsibility to put together a report and make an official comment based on facts and time lines. Also patient confidentiality is very important too. Media hype and an attention seeking employee making issues out of approved business reporting processes.

I’ve not seen any suggestion that there was any inappropriate care and I do not make that suggestion here nor do I infer it from what has been written, but that does not mean that the staff that were involved are not ‘fragile’ particularly given the medial attention (even to the extent it’s being discussed on this blog) and so may need support from their boss prior, during and after speaking to police. Of course he can’t compel police to go through him, the police can ask questions of anyone they want, but as noted above, the person doesn’t have to answer them.

As for protection of the paramedic title, the Health Services Amendment (Paramedics) Act 2015 (NSW) has been passed by the Parliament but has not yet ‘commenced’ so it is not yet part of the effective law. As for the claim that this person who has ‘been a paramedic since 1988’ will ‘under the new legislation… face having to stop immediately and going back to school for between two and four years to gain a qualification for skills I am already able to perform,” that may not be correct. A paramedic will include a person ‘who has received training, or who has experience, prescribed by the regulations’ or ‘who is authorised by the Health Secretary to hold himself or herself out to be a paramedic’.   We don’t yet have the regulations (which may explain why the Act is not yet in force) to know if he would be included.

There is no doubt that paramedic registration would make it clear when a person has met the requirements, but it won’t solve the need to have a ‘grandfather’ provision to allow practising and experience paramedics to continue to use the title even without the latest university qualifications.

The most important point to remember, even though I’ve reposted this story here, is that this is “based on some sketchy info about an email? Could be out of context, could be real, could be fake? Trial by media is very dodgy?” and we shouldn’t “lose sight of the fact that the media will distort things to make the story attention grabbing!!”

 


Categories: Researchers

Paramedics administering drugs “on doctor’s orders”

29 November, 2015 - 11:34

In previous posts I’ve talked about the professional responsibility of paramedics to act in their patient’s best interest, not just as a doctor’s servant – see:

Today’s question comes from:

… a qualified Paramedic (and also a Registered Nurse) currently working for a state based emergency ambulance service. My question was in regards to the legal standing of Paramedics following Doctor medication prescription, even if the management is not particularly covered in the Clinical Practice Guidelines.

Attending a transfer case from a doctor’s surgery to a hospital the other day, I found myself in the position of the Doctor requesting transport of the patient to hospital for IV antibiotics, for a diagnosed infection. This patient was otherwise well, was haemodynamically stable, and the Doctor had already commenced management by inserting a cannula, administering analgesia and IV fluids to this patient. Prior to leaving the scene, I asked the Doctor whether he had commenced antibiotics, to be told that he wished for antibiotics to be administered intravenously, and that he did not have access to any IV antibiotics at the surgery. Understanding that the patient had already been waiting for the transfer for an extended period of time (>5 hours), that the transport time to hospital was over 1 hour, and that the patient would likely be triaged to the hospital waiting room (where the wait would again, likely be well over an hour), I mentioned that we carry Ceftriaxone, which is a broad-spectrum antibiotic that we administer intravenously or by intramuscular injection in the case of Meningococcal Septicaemia or severe sepsis (by consult).

While normally our consult process involves calling the duty Ambulance Service Medical Officer, in this instance the GP on scene asked whether we could administer some of our antibiotics to the patient. The Doctor noted the prescription of the medication (including all requirements of prescription- name, DOB, indication, drug, dose, route, time etc) on his paperwork for the hospital, and the GP’s name and provider number were listed on the paperwork. I also copied this information to the ‘Doctor at Scene instructions’ section of our VACIS (electronic patient record).

Other than this management option perhaps being against ambulance service consult policy, is administration of medication (that Paramedics already carry) legally justifiable if following Doctor on scene prescription? This situation comes up from time to time when there are Doctors on scene. Can Paramedics follow medication orders if they wish to?

I will infer from the acronym VACIS for the electronic patient record that the relevant ambulance service is Victoria Ambulance. Ceftriaxone appears in Schedule 4 of the 2015 Poisons Standard. Details of its presentation, use and contraindications are set out in Ambulance Victoria’s CPG D005 (p 306). Importantly the use is contraindicated if the patient has an “Allergy to Cephalosporin antibiotics” and there is a precaution noted where the patient has an “Allergy to Penicillin antibiotics”.   The use of the drug is provided for in a number of CPGs – A0705; A0706; P0102 and P0706.

An operational staff member of Ambulance Victoria (which includes a paramedic) can carry and use ‘Those Schedule 4 poisons or Schedule 8 poisons listed in the health services permit held by that ambulance service …’ (Drugs, Poisons And Controlled Substances Regulations 2006 (Vic) r 5(10)).

It follows that, at this point, a paramedic is entitled to carry and possess Ceftriaxone but the use is dictated by the CPGs which, as my correspondent has noted, was not in the circumstances that then applied. Is that legal? The answer has to be ‘yes’ and we can find it elsewhere.

First regulation 26 sets out what must be included on a prescription for a schedule 4 drug; and without going through them I’m going to accept that ‘all requirements of prescription’ were set out in the various documents completed by the doctor. In that case the person had a ‘prescription’ for Ceftriaxone. Further a doctor may ‘order the administration’ of a schedule 4 drug, but such ‘order’ must be in writing (r 46). A person may lawfully be in possession of a scheduled drug if it has been prescribed for them or if they are caring for a person for whom the drug has been prescribed (Drugs, Poisons and Controlled Substances Regulations 2006 (Vic) r 5(5) and (7)).

Finally one can imagine many circumstances where ambulance officers are called on to transport patients who are being treated with drugs that are outside the paramedic’s scope of practice but as part of the health service they don’t ‘remove’ the IV line on the basis that they are not authorized to carry or use the drug.

What follows is that it must be lawful for the doctor to authorize the use of the drug and the paramedic to use it. What is important however is to remember that everyone has responsibilities here. It is up to the doctor to determine whether or not the patient’s condition warrants treatment with that drug (Drugs, Poisons and Controlled Substances Regulations 2006 (Vic) r 8).   It would be incumbent upon everyone to ensure that the question of known allergies has been asked. The paramedics en-route remain responsible for the patient’s care so if they observe an allergic reaction or that the IV line is misplaced they have an obligation to do something about it not just say ‘well the doctor put it in so it’s not my problem’.

In essence doctors can’t tell paramedics not to treat patients in accordance with their protocols, at least they can’t if they haven’t seen the patient and made a clinical determination (see Victorian Paramedics treating patients inside the A+E (June 12, 2015)) but that doesn’t mean that they can’t prescribe a particular treatment for the patient. This conclusion is not inconsistent with my earlier post (Doctors delegating authority to carry drugs (August 20, 2014)) where I said doctors can’t give some general authority to carry and use restricted drugs. Here we have a doctor making a clinical judgment as to the patient’s therapeutic needs and authorizing the use of the drug for that patient alone.

Of course situations vary. My correspondent asked ‘Can Paramedics follow medication orders if they wish to?’ and I think that is important. In this case the person was under the care of a medical practitioner and being transported for further, definitive care. It is axiomatic that a doctor may prescribe that sort of treatment for a person under his or her care. The situation would be different at a medical emergency or trauma where a person stepped forward and said “Step aside – I’m a doctor” (October 17, 2014) and then gave certain prescriptions. First, in that case the paramedics would have difficulty resolving that the person was a doctor and that they had sufficient knowledge and expertise. As a stranger to the patient they are unlikely to be able to make an better diagnosis than the paramedics and will have no ongoing responsibility for the person. They could not give the sort of details, in writing, that were described here. Doing what the doctor at the scene suggests may well conflict with other guidelines and may not be appropriate during transport that is during the part of the process that paramedics are experts in. At that point there can’t be an ‘obligation’ to follow those orders or suggestions.

Equally even if transporting the person from one health care facility to another the doctor’s ‘orders’ may not be compatible with the safe transport or be impossible – eg if the drug requires some sort of constant specialist monitoring or administration along the way, the paramedics may well say ‘we can’t do that’.

In this story the line was in, the drug was a drug the paramedic was used to and its use was not obviously inconsistent with their training. Presumably any issues that might arise would also be within their training as it would be if they were using the drug in accordance with their CPGs.   I can’t see how, in this case, there could be any issue.

As is so often the case, the issue will be ‘is the use of the drug reasonable and in the patient’s best interests?’


Categories: Researchers

Red/blue lights but no siren?

29 November, 2015 - 10:17

This question comes via Facebook and I’m not sure of my correspondent’s jurisdiction, but given the National Road Rules, the jurisdiction won’t matter. The question relates to

… the use of emergency warning devices (lights and sirens). On numerous occasions I have witnessed emergency vehicles moving through traffic and / or intersections whilst turning the sirens on and off and relying on lights alone. I have always been told that if you are responding you are to have both lights and sirens on. If the emergency vehicle is involved in an accident and it was found that they did not have all warning devices on, what would be the possible legal ramifications? Any information would be greatly appreciated.

Given, as I said, I don’t know the jurisdiction from which this question comes I’ll use the Road Rules 2014 (NSW) as my exemplar, but the rules are the same nation wide even if the definition of ‘emergency vehicle’ does vary state to state.

The Road Rules 2014 provide that the driver of an emergency vehicle is exempt from the other road rules provided that

  1. The driver is taking reasonable care;
  2. It is reasonable that the rule should not apply; and
  3. The ‘vehicle is displaying a blue or red flashing light or sounding an alarm’ (emphasis added).

Other drivers have to give way if the vehicle is displaying its red/blue lights or sounding the siren (rules 78 and 79).

So the answer is that, on the face of it, emergency service vehicles can respond with only the red/blue lights on and not the siren. But that begs the question of ‘are they are exercising reasonable care?’

The purpose of the red/blue lights and sirens is to warn other drivers of the presence of the emergency vehicle and to warn them that the driver would like right of way to proceed to the emergency. It is for the benefit of other road users and the safety of the emergency service crew.    Not having the siren on is removing one more warning device, but it may be reasonable in some circumstances. Some I can think of are:

  1. Police who don’t want to alert offenders that they are on their way;
  2. Paramedics who are treating a patient in the ambulance and who will be distressed by the sound of the siren, and that may mean, in the circumstances that the ambulance is also travelling relatively slowly and the use of the siren may confuse other road users;
  3. Travelling in heavy traffic where drivers have limited opportunity to get out of the way so the siren may actually cause distress and increase the risk to others;
  4. And in comments on an earlier post (see ‘Red/blue lights in ACT and NSW’ (October 10, 2013) there was a discussion on whether it is reasonable to use a siren late at night with little traffic but at the risk of disturbing non-road users.

So the possible legal ramifications are:

  1. The legislation doesn’t require both siren and lights – one is sufficient;
  2. A driver should consider what are the risks and why do they want one warning device but not both.
  3. If it is not ‘reasonable’ to have just the lights and sirens then the exemption may be lost on the basis that the driver was not taking ‘reasonable care’;
  4. In terms of civil liability, if there was an accident and another person was injured or their vehicle damaged and they tried to recover from the Ambulance service (not the driver) the issue would depend on whether or not the use of the siren would have made any difference, and that would depend on what actually happened. The mere fact that the siren was not on would not determine the issue of liability, it would just be one factor to be considered.

Categories: Researchers

Another source of compensation for injured rescuers

26 November, 2015 - 13:17

US lawyer and firefighter Curt Varone reports on injured firefighters suing the company responsible for an explosion where they were injured – Injured California Firefighters Sue Firms Responsible for Explosion (November 26, 2015).

I am reminded of an earlier post of my own – “Cop sues offender’s family” (May 22, 2013).  These posts may be worth visiting (or revisiting).     Assuming the California firefighters win it’s another example of a person being held responsible for the consequences of their actions which include exposing rescuers to danger.  For rescuers, particularly those that may be affected by various limitations in workers compensation laws, it may mean that they have an alternative source of compensation to make good losses that they suffer in the course of their duties.


Categories: Researchers

Don’t park in front of a Western Australia fire hydrant – but what’s a fire hydrant and how do I know where it is?

24 November, 2015 - 13:29

This question comes from Western Australia but I suspect the issue is common across Australia.

I believe an unsatisfactory situation exists which needs rectification, perhaps not only in W.A. but throughout Australia, in regards to fire hydrant markings.

It would seem from anecdote that a fairly common offence in the Perth metropolitan area is obstruction of fire hydrant points. Many of these points are embedded in public road surfaces and are covered with a plug approximately 20cm square. They are all but invisible to motorists.

The practice on the part of the authorities is to mark the road adjacent to the hydrants with a white painted “H” symbol and further mark the adjacent kerb with a splodge of white paint.  The resultant effect, without familiar knowledge in my view, is akin to markings on a roadway preparatory to road repair.

The issue, in this area of W.A. at least, is that the authority, Department of Fire and Emergency Services, and subcontracted Municipal Councils do not appear to have a published code for identification of hydrants.  Perhaps because of this, the driving code handbooks fail to indicate what constitutes a fire hydrant marking.  It would be fair of course to say that local knowledge has been built such that many people do recognize the significance of the marking.  However, rightly, many more do not.

In my case, as a traveller who spends 6 months per year overseas and who primarily resides in Sydney, the “H” designation meant nothing – as I’m sure it would to most visitors.

My question of you Michael is, assuming my reading of the situation is right, can you comment on any Australia wide initiative to bring a uniformity to signage to either a national or international standard?  Can you also comment on the legal defensibility of municipal councils charging motorists for parking over a marking which is not defined in the road code or in fire services authority documentation?

Interestingly I was recently in WA and saw the ‘H’ marking on the road and identified the white paint on the hydrant cover.  As I was a pedestrian at the time I was able to deduce what the “H” meant but I did say that if I was driving not only would I have not known what it meant it was unlikely that a driver would see it, and certainly not at night.

The offence of parking in front of a hydrant is set out in the Road Traffic Code 2000 (WA).  Regulation 163(1) says:

‘A driver shall not stop a vehicle so that any portion of the vehicle is within 1 m of a fire  hydrant  or fire plug, or of any sign or mark indicating the existence of a fire  hydrant  or fire plug …’

The penalty, if the matter is dealt with by way of a parking ticket, is one penalty unit or $50 (Reg 163(2) see also Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 11 and Road Traffic (Administration) Act 2008 (WA) s 7).  If the matter was to go to court the penalty could be increased to a maximum of 24 penalty units or $1200 (Road Traffic Code 2000 (WA) reg 9(2)).

Fire Hydrant is defined in the Code (reg 3(1)) as ‘an upright pipe with a spout, nozzle or other outlet for drawing water from a main or service pipe in case of fire or other emergency’.  It follows that a sunken water source is not a ‘fire hydrant’ for the purposes of the Road Traffic Code.   What is a ‘fire plug’ is not defined but I’ll adopt the definition from CFA Senior Station Officer David Ferguson (see Jeremy Lee, ‘Have you got a fire plug on your property?’ ABC South West Victoria (online) 24 October 2013)) who says:

… the plugs are generally located on people’s nature strips, with little blue cat’s eyes on the road and marker poles to help point fire fighters to where the plugs are.

Let us accept therefore that the ‘fire hydrant points’ described by my correspondent, and seen by me, are ‘fire plugs’.

My correspondent says that there appears to be no ‘published code for identification of hydrants’; but in fact there is and it too is set out in the Road Traffic Code 2000 (WA) reg 3(1) and Schedule 4,  and repeated across Australia as part of the National Road Rules.  The approved indicators are shown below and also on the ABC South West Victoria story, above.

Fire Hydrant and Fire Plug Indicators

(This image is taken from Australian Road Rules (SA) r 194 as the image is of a higher quality than the equivalent in the WA Code)

 

There does not appear to be any reference to the ‘H’ mark on the road in any other WA legislation (such as the Local Government Act 1995 (WA) or its Regulations).

Given that we are all supposed to know the law (hence no knowledge of the law is no defence) one might reasonably infer that if there is no ‘fire plug indicator’ then there is no fire plug!   The offence in reg 163 is made out if one parks within one metre of ‘any sign or mark indicating the existence of a … fire plug’.    I would certainly argue that the sign or mark has to be one prescribed by the Code not one invented by council.

The offence is also made out if one parks within one metre of the plug.   Whether the car is within a metre of the plug depends upon where the plug is in the ground.  If there’s a metre between the car and the plug, no offence is committed.

If the plug is within a metre then at least an interstate visitor should defend a ticket.   It is a defence to point to ‘an honest and reasonable belief in facts which if true would make the act complained of innocent’.  That is legalese for if you honestly and reasonably believe that certain facts are true, and if they were true what you did would not be illegal, that that is a defence.   As argued above I don’t think it’s unreasonable to believe that if there is no fire plug indicator there is no fire plug and if that were true, parking there would not be an offence. That defence will only work for visitors, locals who actually do know that there is a fire plug there would not have the necessary belief.

That’s not to say a Magistrate wouldn’t be sympathetic to the argument given there is, in fact, a standard that is meant to be applied so even for locals it may be worth a try.  On the other hand, a magistrate may well find that the “H” is a ‘mark indicating the existence of a fire hydrant’ and that is sufficient.   There do not appear to be any reported WA cases where the issue has been tested.

The problem is that the cost of defending a $50 parking ticket will well exceed the cost of paying it so most sensible people might write to the police to seek to have the ticket withdrawn but are reluctant to take the matter to court if that doesn’t work.

 


Categories: Researchers

A new publication

16 November, 2015 - 21:06

The Emerald Group has now published a special issue in the series Studies in Law, Politics, and Society.  The issue, called ‘Cassandra’s Curse The Law and Foreseeable Future Disasters’:

… examines the relationship between law and disasters… The volume addresses the ‘myths’ of contemporary disaster law and policy, such as that of society’s “invincibility”. The papers examine specific cases such as the Fukushima Nuclear Disaster, bushfire management in Australia and wildfire prevention in the Mediterranean, as well as providing broader analysis and comment on global disaster law and policy.

I’m pleased to report that I wrote the contribution ‘Bushfires And Australian Emergency Management Law And Policy: Adapting To Climate Change And The New Fire And Emergency Management Environment’.  This contribution draws on research conducted for the former Bushfire CRC.  The abstract reads:

Modern emergency management policy is built around the concepts of shared responsibility and the development of resilient communities. Drawing on the Australian context, this chapter argues that giving effect to these policy directions will require negotiation between stakeholders and an inevitable trade in values, interests and resources. The chapter identifies an apparent contradiction at the heart of modern disaster management: that improvements in establishing professional emergency and risk management services may have reduced the capacity of individuals and local communities to take responsibility for disaster preparation and response.

If anyone’s interested in obtaining a copy of this volume, they can do so from the Emerald online bookstore.


Categories: Researchers

The use of scheduled drugs by volunteer Ambulance Officers in Tasmania.

16 November, 2015 - 20:36

A volunteer officer with Ambulance Tasmania writes:

I have been researching the legislation that applies to the use of drugs by Ambulance Officers in Tasmania. Specifically those for pain relief. This led me to three pieces of legislation:

  1. The Ambulance Service Act 1982
  2. The Poisons Act 1971
  3. Poisons (Declared Restricted Substances) Order 1990

My first question is simply “Am I an Ambulance Officer?”  I suspect the answer is “no”. This surprised me as we are often referred to as such. I don’t fully understand the difference, the Ambulance Service Act doesn’t make it clear.  Could you interpret it for me please?

The answer to my first question will help answer my next questions.

We have a number of drugs in our protocols, some are S4 and so come under the definition of Restricted Substances. I can see clearly that Clause 38 (1)(h) of the Poisons Act 1971 allows us to use these drugs within our Clinical Field Protocols. However, I’d like to ask you about the legislative position of two specific drugs, one that we used to have in our protocols Panadeine Forte, now removed, and one that many VAOs would like to see added, Fentanyl IN.

Panadeine Forte contains Codeine (S4) which is listed in the Poisons (Declared Restricted Substances) Order 1990 and so is covered by clause 36 (1C) of the Poisons Act 1971.  Could you explain this for me please? When it says written permission from any Secretary, what does that actually mean? With such permission, would/could it allow a VAO to use this drug, without any legislative changes? Assuming Ambulance Tasmania wanted us to do so and updated our Clinical Field Protocols, of course.

Fentanyl IN is used by some Ambulance Volunteers in other jurisdictions, notably Victoria. If Ambulance Tasmania ever wanted to allow its use by VAOs could that be achieved without legislative change? I note that it’s covered by clause 47 (1)(dd) of the Poisons Act 1971, but it rather depends on the definition of Ambulance Officer in the Ambulance Service Act 1982.

I hope my questions fall within the scope that you can answer through your blog.

The Ambulance Service Act 1982 (Tas) does not define ‘ambulance officer’ but it does define the term ‘officer of the Ambulance service’. An ‘officer of the Ambulance service’ is a person ‘appointed or employed to enable the Commissioner to provide ambulance services in accordance with this Act’ (ss 3 and 14(2); emphasis added).   I have emphasised the phrase ‘or employed’ because the use of the term ‘or’ indicates that a person who is appointed need not be employed – they could be a volunteer!

Section 16 says:

(1)      The Commissioner may appoint such persons as he thinks necessary to be volunteer ambulance officers.

(2)      A volunteer ambulance officer–

(a)       shall perform, without remuneration, such functions relating to the provision of ambulance services as the Commissioner may from time to time direct; and

(b)      shall be subject to the control and supervision of the Commissioner.

A volunteer ambulance officer is appointed to perform functions relating to the provision of ambulance services by the Commissioner so a volunteer ambulance officer is, necessarily, an ‘officer of the ambulance service’.

The Poisons Act 1971 (Tas) s 26 makes it an offence to supply a medicinal poison (that is a Schedule 2 drug; see s 3) unless the person is a licenced medical practitioner, nurse or other relevant health or veterinary professional.   A similar provision applies to restricted substance (that is a Schedule 4 drug; see ss 3 and 26). These provisions do not, however, apply to the administration of a medicinal poison or by:

… a volunteer ambulance officer, an ambulance officer, a paramedic or an interstate ambulance officer–

(i) at the direction of a medical practitioner; or

(ii) in accordance with the Field Protocols applying with respect to the administration of scheduled substances as approved by the Commissioner of Ambulance Services from time to time;

Ambulance officers and paramedics may also use narcotic substances in accordance with the appropriate field protocols (s 47(1)(dd)).   For the purposes of the Poisons Act 1971 the term ‘ambulance officer’ means ‘an officer of the Ambulance Service as defined in the Ambulance Service Act 1982’ (s 3). As argued, above, that must include a volunteer ambulance officer.   So, for the purposes of the Poisons Act 1971, a volunteer ambulance officer is an ambulance officer.

What follows is that volunteer ambulance officers may use and administer schedule 2 and 4 drugs as well as narcotic substances to the extent that they are authorised by the Commissioner.

According to ‘Pharmacy direct’, Panadeine Forte is Paracetamol 500mg & Codeine Phosphate 30mg. Codeine when compounded with other therapeutic substances and with 30mg or less of codeine is a schedule 4 drug.   Fenatnyl is a schedule 8 (narcotic) drug (see the Poisons Schedule at https://www.comlaw.gov.au/Details/F2015L01534).

Could the ambulance service allow the use of these drugs without legislative change? Yes they could. The Commissioner would have to approach the Secretary of the Department of Health and Human Services who would have to give, in writing, an authority to allow ambulance officers to possess Panadeine Forte (s 36(1)(c)).   The regulations already provide that an ambulance officer may possess a narcotic substance (which must include Fenatnyl) ‘for the purposes of his or her profession or employment’ (Poisons Regulation 2008 (Tas) r 9)).   A volunteer ambulance service is not engaged in employment but in context, I would have no difficulty suggesting that they are covered by the reference to the purposes of ‘his or her profession’ that is for the purposes of their duties as a volunteer ambulance officer.

What follows is that the use of these drugs is a matter for the Commissioner no doubt in consultation with the Department of Health and Human Services. If they took the view that it was appropriate they would have to develop the ‘field protocols’ to determine which officers could use the drugs in what circumstances, provide the training and then they are authorised to use the relevant drugs. No legislative change would be required.

Section 36(1)(c) refers to a person authorised:

… in respect of ambulance services, to have in his or her possession, or to attempt to obtain possession of, a substance to which this section applies [that is a restricted substance or schedule 4 drug] to the extent the person is authorised under any Secretary’s written authority for the use of the substance to which this section applies for ambulance services.

That means just what it says. The Secretary of the Department of Health and Human Services must authorise ambulance officers to carry schedule 4 drugs. The authorisation could be to named officers or could be a class of officers such as ‘those authorised by the Commissioner’ or holding a particular qualification.

Let me then return to the questions:

  1. “Am I an Ambulance Officer?”  Yes, a volunteer ambulance officer is an ‘officer of the ambulance service’ (Ambulance Service Act 1982 (Tas) ss 3 and 14(2)) and is therefore an ambulance officer for the purposes of the Poisons Act 1971 (NSW) (see s 3).
  2. When s 36(1)(c) refers to authorization by the Secretary of the Department of Health and Human Services it means just what it says. Lawful permission to carry schedule 4 drugs requires the Secretary to authorise ambulance officers in writing. That authority could be given to names officers or to a class of officers.
  3. With such permission, would/could it allow a VAO to use this drug, without any legislative changes? Assuming Ambulance Tasmania wanted ambulance officers, including volunteer ambulance officers to use those drugs and updated the Clinical Field Protocols, then yes.
  4. Fentanyl IN is used by some Ambulance Volunteers in other jurisdictions, notably Victoria. If Ambulance Tasmania ever wanted to allow its use by VAOs could that be achieved without legislative change?

Categories: Researchers

Don’t be bullied into inappropriate first aid treatment

14 November, 2015 - 16:47

This question comes from a NSW first aider who says:

I have a question regarding event first aid. It is common in this setting, especially within sport, for people to request ice for injuries. This is often wanted without a patient assessment conducted. I am often met with a negative response when I ask to have a look at the injury, as is often the case when the patient is some distance away from the medical centre.

On numerous occasions I have been asked for ice, but on patient assessment found that had I provided ice it would have been inappropriate treatment eg concussion. Also is a concern is returning to play immediately after a short ice application time, which risks further injury.

My question I guess comes down to what are the legal risks to provide ice without a patient assessment, and if ice is not given is that negligent?

Presumably your agency is contracted to provide professional first aid services, not to supply an esky.   The old days of running onto the field with the magic sponge or trying to strap an injury are surely long past. If the team want a physiotherapist or sports specialist they should get one. If they want first aiders they need to allow first aiders to do their job.

You should not be issuing ice without doing a patient assessment because, as you have noted, ice may not be the appropriate treatment and you are there to give the appropriate treatment.  If you simply handed over ice without doing a patient assessment and there was say a concussion or fracture then there could indeed be legal repercussions. Later the player may well allege that you were there to provide first aid, by issuing the ice you provided some care but clearly did not do what a reasonable first aider would do which is actually examine the patient.   If the patient is some distance from the medical centre, your obligation may well be to go to them but I would not be handing out ice without seeing the patient.

As for players going on early, they are of course entitled to reject your treatment and your advice, but if that becomes a practice you should raise that with the team or organisers that engage you. If they don’t want your services then you don’t need to be there. If what they want is a sports physio to ‘strap the injury’ or do whatever they do, they should engage them.

Not giving out ice without assessing the patient could not be negligent.

If you are going to provide a professional service you have to act as a professional. That means expecting that you will be allowed to provide the service your agency has agreed to provide – ie a first aid service where first aid is given in accordance with best practice standards. If they want some other service, they should get another service provider. If they want to buy an esky and ice they can do that without your cooperation.


Categories: Researchers

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