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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: 14 hours 44 min ago

Queensland road rules and the police

21 July, 2015 - 14:42

A correspondent from Queensland wrote:

I read your post about the liability being found against the NSW Ambulance [see “Liability for motor vehicle accident – NSW ambulance on urgent duty” (July 6, 2015)] at 5:43 pm, and it reminded me of a matter a colleague told me about.

There was a minor traffic crash between a Police Vehicle and a civilian car, where the police vehicle has commenced a u-turn, and the civilian vehicle has hit the side of the police vehicle at low speed, leaving a dent.

The driver of the police vehicle has stated they were doing the u-turn to pull over another vehicle to administer a RBT, therefore providing them protection under the Transport Operations (Road Use Management) Act 1995 (Qld) s 144 (I assume that this is the section that applied as the Transport Operations (Road Use Management—Road Rules) Regulation 2009 are a regulation under this Act).

The officer that was the driver was then issued a traffic infringement by the QPS, apparently following a magistrate’s court decision that the defence did not apply in the case of a potential offender.

My question is are you aware of the details of this predecessor case, and would the implications be that the Police effectively are unable to intercept any vehicles unless they are seen committing an offence? Would this then remove the random breath testing power and return to the probable cause requirement?

Section 144 of the Transport Operations (Road Use Management) Act 1995 (Qld) says:

Provisions of this Act about offences (other than section 79 and 80) do not apply to a police officer while exercising a power, or performing a function, under this or another Act.

Sections 79 and 80 relate to driving and alcohol and are not relevant. There are many provisions in this Act the create offences these tend to be more significant offences rather than the daily driving matters. The Australian Road rules are incorporated into Queensland wall by the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld). Rule 38 says:

A driver making a U-turn must give way to all vehicles and pedestrians.

Rule 305 as the traditional and familiar exemption for police. It says:

(1) A provision of this regulation does not apply to the driver of a police vehicle if—

(a) in the circumstances—

(i) the driver is taking reasonable care; and

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

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

(2) Subsection (1)(b) does not apply to the driver if, in the circumstances, it is reasonable—

(a) not to display the light or sound the alarm; or

(b) for the vehicle not to be fitted or equipped with a blue or red flashing light or an alarm.

Given the police were doing a U-turn in order to perform random breath test this hard to believe that they were displaying “a blue or red flashing light or sounding an alarm”. I can understand why a magistrate would hold that it is not reasonable for rule 305 to apply when police are not seeking to arrest an offender or otherwise engage in urgent duty. A genuine random breath test when there is no cause to suspect that the driver is affected by alcohol would not seem to warrant the application of rule 305.

As to the assumption that the exemption in section 144 applies, this cannot be the case. If it was there would be no work for rule 305 to do and give police a blanket exemption from all the road rules in all circumstances. That is clearly not Parliament’s intention. Section 144 will apply to offences that are set out in the Act whereas rule 305 will apply to offences set out in the regulations.

The implication is not that police “are unable to intercept any vehicles unless they are seen committing an offence” rather they are not allowed to unreasonably breach the Road rules in order to stop a driver for the purposes of random breath testing. The power to require a person to undergo a breath test is found in the Transport Operations (Road Use Management) Act 1995 (Qld) s 80. The power to require a person to stop the vehicle in order to undergo a breath test is found in the Police Powers and Responsibilities Act 2000 (Qld) s 60.

Please do often have to breach the road rules to set up random breath testing stations but they may close a lane, park their vehicles in what would otherwise be illegal situations and do other things. It should be noted that rule 305 requires them to take reasonable care and that the relevant provision should not apply in circumstances. It is almost axiomatic that if there is an accident the driver was not taking reasonable care. It is also open for a magistrate find that it is not reasonable to exempt a police vehicle from the rule requiring to give way when doing a U-turn’s but at the same time allow that the rule against stopping or parking on a motorway should not apply while performing RBT.

Conclusion

I don’t think too much to be read into this. A police officer who does a U-turn in order to conduct a random breath test and is involved in a collision can’t quite reasonably expect to receive a Traffic Infringement Notice.  Equally a police officer who does a U-turn in order to conduct a random breath test but was not involved in a collision could quite reasonably expect not to receive a Traffic Infringement Notice. A decision of a magistrate does not create a binding precedent and without knowing the earlier case an assertion by magistrate that will create five did not provide an exemption in a particular case would be limited to the facts of that case. Even so I can understand why a magistrate would find that it was not reasonable for rule 305 to apply with the driver of a police vehicle exposed others to danger when not seeking to apprehend an offender. If that did not apply police to do a U-turn at any point just because it was more convenient than proceeding by some other route.

Police are able to proceed with random breath testing but must take reasonable care when doing so and if their actions are in breach of the road rules they must take reasonable care when doing so. As with all emergency workers the ultimate decision of whether or not it is reasonable to exempt the police from particular road rule lies with the court.


Categories: Researchers

Workers compensation benefits for NSW emergency service workers

21 July, 2015 - 12:52

This question comes from a member of the NSW State Emergency Service.

I have been made aware that current Workers Compensation Legislation may discriminate against volunteers in terms of entitlements compared to paid workers. For example volunteers are not entitled to reimbursement of re training costs, they are not eligible for workers compensation benefits until liability is determined (i.e no provisional liability provisions apply) and there is no obligation or mechanism for an employer to provide the volunteer with suitable duties when they are certified as fit for suitable duties whilst they are recovering.  This potentially leaves volunteers who are injured in their work with the volunteer organisation out of pocket and exposed to considerable personal expenses and costs whilst their claim is being assessed.

Would you be able to confirm, clarify this anomaly which I find perplexing considering the new WHS legislation was designed to ensure all ‘workers’ had the same protections and obligations ?

We all know by now that the Work Health and Safety Act 2011 (NSW) and its equivalent in most other states and territories has expanded the definition of worker to include volunteers. The important point to note however, is that the Work Health and Safety Act and workers compensation are not the same thing. The inclusion of volunteers in the definition of worker in the Work Health and Safety Act only applies to that Act (see “What does it mean to be a ‘worker’” February 19, 2015, )

In New South Wales workers compensation is governed by the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW). These Acts provide for compensation for people injured in the course of their employment. For volunteer firefighters and emergency service workers the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) extends some of the workers compensation provisions to volunteers even though they are not employees of the fire or emergency service for which they volunteer.

Sections 10 (for firefighters) and 26 (for emergency service and rescue association workers) say that a volunteer firefighter, emergency service worker or rescue association worker:

… who has received an injury (and, in the case of …[their death, their dependants]) shall be entitled to receive compensation as follows:

(a) where death results from the injury-the compensation payments prescribed by paragraphs (a) and (b) of section 25 (1) of the Principal Act,

(b) where total or partial incapacity for work results from the injury-the weekly payments of compensation prescribed by Division 2 of Part 3 of the Principal Act,

(c) where medical or related treatment, hospital treatment, occupational rehabilitation service or ambulance service becomes necessary as a result of the injury-the benefits prescribed by Division 3 of Part 3 of the Principal Act,

(d) where the worker receives an injury mentioned in the Table to Division 4 of Part 3 of the Principal Act-the compensation prescribed by that Division (including compensation for any pain and suffering resulting from that injury).

The ‘Principal Act’ is the Workers Compensation Act 1987 (NSW) (see Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 3, definition of ‘Principal Act’).

  • Section 25 of the Principal Act provides for lump-sum payments for the death of a worker.
  • Division 2 of Part 3 of the Principal Act provides for ‘Weekly compensation by way of income support’.
  • Division 3 of Part 3 of the Principal Act provides for ‘Compensation for medical, hospital and rehabilitation expenses etc’.
  • Division 4 of Part 3 of the Principal Act deals with ‘Compensation for non-economic loss’ (ie awards to reflect the pain and discomfort caused by injuries).

Let me return to the original question where my correspondent said that, as he understands it, volunteers are:

  • not entitled to reimbursement of re training costs,
  • not eligible for workers compensation benefits until liability is determined (i.e no provisional liability provisions apply) and
  • there is no obligation or mechanism for an employer to provide the volunteer with suitable duties when they are certified as fit for suitable duties whilst they are recovering.

Training costs

Volunteers are entitled to compensation for rehabilitation expenses under ‘Division 3 of Part 3 of the Principal Act’ (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) ss 10(c) and 26(c)).  Division 3 of Part 3 says (at s 60) the ‘employer’ (in this case WorkCover as the insurer for their emergency service) is to ‘pay, in addition to any other compensation under this Act, the cost’ of a necessary workplace rehabilitation scheme which is

a return-to-work program with respect to policies and procedures for the rehabilitation (and, if necessary, vocational re-education) of any injured workers of the employer. An employer’s return-to-work program must not be inconsistent with the injury management program of the employer’s insurer and is of no effect to the extent of any such inconsistency’ (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) ss 10(c) and 26(c), Workers Compensation Act 1987 (NSW) ss 59 and 60 and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 52).

These provisions would cover ‘training costs’ if they were necessary as part of a return to work program.

Provisional Liability

This is governed by the Workplace Injury Management and Workers Compensation Act 1998 (NSW).  Under that Act a workers compensation insurer has to commence weekly payments to an injured worker within 7 days of receiving the claim (ss 267, 274 and 275). The insurer can also accept provisional liability for medical expenses up to $5000 (s 280).  Do these provisions apply to a volunteer emergency service worker?

Both the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) and the Workers Compensation Act 1987 (NSW) set out entitlement to compensation, but not the process of making a claim.  The claims process is provided for in the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (see Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 29).  It follows that Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), dealing with claims and including the provisions on provisional liability must also apply to claims under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987.

Suitable duties

The obligation upon an employer to provide suitable duties for an employee is found in the Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 49.  That section says:

If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker.

This section is not picked up by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 presumably because the fire or emergency service is not the volunteer’s employer and could not provide that alternative work.   I do note however that WorkCover, administering the compensation scheme for volunteers, does have to provide workplace rehabilitation services (as discussed, above) and would have to make up the loss of income (subject to the various weekly limits in the 1998 Act).

Given that the volunteer is not injured by their employer, the employer could not be bound by s 49 so could, presumably move to dismiss the employee/volunteer if they are no longer able to do their work. If, however, the employees retraining costs and/or lost income are being met by the Emergency and Rescue Workers Compensation Fund, the employee may have grounds to allege that such action constitutes an ‘unfair dismissal’ (Fair Work Act 2009 (Cth) ss 379-405).  That is something that would have to be considered on a case-by-case basis.

Conclusion

My correspondent wrote and said

I have been made aware that current Workers Compensation Legislation may discriminate against volunteers in terms of entitlements compared to paid workers. For example volunteers are not entitled to reimbursement of re training costs, they are not eligible for workers compensation benefits until liability is determined (i.e no provisional liability provisions apply) and there is no obligation or mechanism for an employer to provide the volunteer with suitable duties when they are certified as fit for suitable duties whilst they are recovering.

It is my opinion that volunteers

  1. Are entitled to have WorkCover pay for ‘necessary workplace rehabilitation’ which could include retraining;
  2. The provisional liability provisions of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) do apply to claims for compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW); and
  3. There is no obligation upon the employer, WorkCover or the emergency service for which the member volunteers to provide ‘suitable employment’ for the injured volunteer/worker.

Warning and disclaimer

No-one should ever rely on the general discussion that takes place on this blog in lieu of particular advice on their particular circumstances.  That is particularly true in the context of personal injuries claims that are complex (as this answer shows) and depend very much on the facts of each case. Volunteers seeking compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) should understand that the determination of compensation is not a matter for their service but WorkCover. WorkCover will, like any insurer, seek to apply the law and ensure that it pays only that which it is required to pay. Accordingly any volunteer who is dissatisfied with a decision of WorkCover should seek independent legal advice. There are many solicitor firms that specialise in workers compensation and personal injuries compensation. Most of these firms offer a free first consultation and also operate on a ‘no win no fee’ basis. Any volunteer has been injured should consider consulting one of these firms for specific advice on their rights and entitlements and to ensure they comply with these time limits and processes must be met in making a claim.


Categories: Researchers

Combat agency for fire on board a vessel in Sydney Harbour

20 July, 2015 - 12:05

This question came to me for a paramedic who, given his profession, was clearly asking just a matter of intellectual interest rather than practical application. My correspondent wanted to know who is the combat agency for responding to a fire on a boat moored in Sydney Harbour; is it Fire and Rescue New South Wales or the Port Authority of New South Wales?

New South Wales Fire and rescue is responsible for providing firefighting services within a fire district. A fire district has to be proclaimed and generally follows local government boundaries. A map showing the boundaries for Sydney City Council (http://www.cityofsydney.nsw.gov.au/council/our-responsibilities/areas-of-service) shows that the Council boundaries do not extend into the harbour with perhaps some exception at the Finger Wharf at Woolloomooloo Bay. The Fire Brigades Act 1989 (NSW) does not however say that the fire service is to be the combat agency for fires in those areas (compare that to the State Emergency Service Act 1989 (NSW) s 8).

The Maritime Services Act 1935 (NSW) s 13S says:

“The Board may provide and maintain such plant, apparatus and things as it deems necessary for the rescue and resuscitation of drowning or apparently drowned persons and for the recovery of drowned persons and for the extinguishing of any fire on vessels or on any property vested in it or under its control or management and may employ such persons as it deems necessary for the proper operation and use thereof.”

That says the board may have the equipment and certainly doesn’t use language like combat agency to identify that the Maritime Services Board (as it was) is to take control of firefighting on a vessel.

As with most emergencies it is not the legislation that identifies who is the combat agency but the relevant plans made under the State Emergency and Rescue Management Act 1989 (NSW).  There are two relevant sub plans to the State Emergency Management Plan. They are:

The Sydney Harbour Marine Emergency Sub Plan; and

The NSW State Waters Marine Oil and Chemical Spill Contingency Plan.

The Sydney Harbour Marine Emergency Sub Plan says, at page 20, that the Sydney Ports Corporation is to act as combat agency for ‘Fires aboard vessels within port limits, in conjunction with FRNSW’.   Fire and Rescue NSW is ‘Upon receiving a call to a fire, respond with SPC and take charge of the firefighting operations where FRNSW personnel and equipment are committed’ (p 16).

One might think that the NSW State Waters Marine Oil and Chemical Spill Contingency Plan is not relevant to firefighting, but appendix 17 to that plan provides ‘Guidelines for Responding to a Fire on a Vessel’.  Those ‘guidelines’ say, at p 85

Fire on a vessel in port will normally be responded to according to the port’s local incident response contingency plan. A vessel when in a port including moored at a wharf is in State waters and under the NSW emergency management arrangements the port owner (a Port Corporation or Roads and Maritime Services) is the combat agency for the response unless control is handed to Fire & Rescue NSW. It is preferable that the port is in control of the response and work closely with Fire & Rescue NSW using an MAICT approach.

The relevant agency for Sydney Harbour is identified as the Sydney Ports Corporation.

The Port Authority of New South Wales is the successor to the Maritime Services Board and Sydney Ports Corporation (http://www.sydneyports.com.au/corporation/About_Us/history) so regardless of the titles used in the plans and the Maritime Services Act 1935, it is now the relevant authority.

Conclusion

Typically fire and emergency service legislation does not determine which agency is the combat agency for a particular event (the State Emergency Service Act 1989 (NSW) is the exception).  Rather the legislation establishes the relevant agency and empowers them but given they multitude of hazards and the need to reflect local conditions, determining how the response is managed is a matter for the agencies working through the State, Region and Local Emergency Management Committees.

In this case the SEMC has established relevant plans that identify for a fire on a vessel, including a vessel in port in Sydney Harbour, it is the Port Authority of New South Wales that is the combat agency.  They should appoint the Incident Controller who will set the controller’s intent for the response. Fire and Rescue may well take charge of firefighting operations but that doesn’t deny that the Ports Corporation is the combat agency, in the same way that in other emergencies particular agencies have specialised roles but it is the role of the IC to take overall control of the response.


Categories: Researchers

Who is a volunteer firefighter in NSW?

19 July, 2015 - 17:42

This question comes from a member of the NSW Rural Fire Service, that is someone who is clearly a firefighter, but he’s concerned about others.

I recently attended a Group Captains forum where it was said that the RFS would only cover people who were current members of a brigade that may be injured at a fire or callout.  Therefore any person not a member of a brigade, who is injured on a callout is not covered unless they have their own personal insurance or can claim workers compensation from their employer.

In my experience at a larger fire there would be quite a few people who didn’t fall into any of these categories and under the commissioner’s interpretation I would assume that they are not covered in the event of being injured.

I find it difficult to accept this is the case and would appreciate if you could clarify the situation.  I have always been of the understanding that if a person was acting under the guidance of the officer in charge of the incident and dressed appropriately they would be covered.

The answer is that it is not up to the RFS to decide who is, or is not covered, that decision lies with the WorkCover Authority.  But before I get to that let’s look at who is a member of the RFS.  According to the Rural Fires Act 1997 (NSW) s 8(2), the RFS is made up of

(a) the Commissioner and other staff of the Service,

(c) volunteer rural fire fighters.

(That’s not a typo, there is no paragraph (b); presumably there was one once but it’s now been removed so we have paragraph (a) and (c)).  Who are the volunteer rural firefighters?  They are, according to s 8(3):

(a) officers and other members of rural fire brigades, and

(b) any person other than a member of a rural fire brigade who, without remuneration or reward, voluntarily and without obligation engages in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of an officer of a rural fire brigade.

So it cannot be true that the RFS would only cover (if the RFS covered anyone) ‘current members of a brigade’ because those people who fit the definition in s 8(3)(b), above, are also part of the Rural Fire Service.

We can now turn to the really substantial Act and that is the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).  That Act requires the WorkCover Authority of NSW to provide workers compensation type remedies for volunteer fire firefighters, and others, injured in the course of their duties.  For the purposes of that Act, a fire fighter is:

(a) an official fire fighter, being the captain, deputy captain or any member of a rural fire brigade or the group captain or deputy group captain of any rural fire brigades,

(b) any person who, without remuneration or reward, voluntarily and without obligation engages in fighting a bush fire:

(i) with the consent of or under the authority and supervision of the captain, or deputy captain of a rural fire brigade or the group captain or deputy group captain of any rural fire brigades, or

(ii) in conjunction with any civil authority, and

(c) any person who, without remuneration or reward, voluntarily and without obligation engages in fighting a bush fire and who, in the opinion of the Authority having regard to all the circumstances, should be deemed to be a fire fighter. (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 5, definition of ‘fire fighter’).

Neither the Rural Fires Act nor the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act makes any reference to the person being dressed ‘appropriately’.    There standard of dress is irrelevant to the issue of workers type compensation  (though it may not be in relation to duties and obligations under the Work Health and Safety Act 2011 (NSW)).

Conclusion

It follows that the assertion that ‘the RFS would only cover people who were current members of a brigade that may be injured at a fire’ must be wrong.   A person acting under the direction of the RFS officer in charge is part of the RFS (even if they are not a recognized member of a Brigade) and it is the WorkCover Authority (not the RFS) that must provide the workers compensation remedies should they be injured in the course of their duties.


Categories: Researchers

Ignoring a medic-alert bracelet

19 July, 2015 - 17:16

This issue was raised on the Facebook page of the Paramedic Observer but I’m taking the liberty of commenting on it here.

The question asked was ‘What liability is there to respond to MedicAlert?’ (though it may be better to phrase it as ‘What obligation is there to respond to MedicAlert?’)  The post then linked to two New Zealand articles:

The articles relate two cases where a medic alert warning was ignored.  In one a child is reported to have had a life threatening condition that was recorded on the medic-alert bracelet that was ‘ignored’; another involved a patient with a known allergy to an antibiotic that was administered even though the allergy was recorded on the medic alert bracelet.  The story does say that the 80 year old patient ‘died six days later’ but it’s not clear if that was due to the allergic reaction or some other condition or complication.

According to the website of the Medic-Alert Foundation (Australia) they offer a number of services.  Apart from the familiar medic-alert jewellery that can record relevant conditions they also provide, amongst other things, a ‘24/7 hotline for emergency services and healthcare personnel to call’ and a ‘Wallet sized emergency health card’.

So what is the obligation upon health professionals, paramedics, nurses and doctors, to take account of this information?

The answer is quite simple.  The whole point of patient or health care is to advance the interests of the person in need of care.  Respect for the principle of autonomy means that the person, first and foremost who knows what is in the person’s best interests is the person themselves.    It is for this reason that people must be involved, to the extent that they can be, in their health care decision making and why ‘except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’ (Rogers v Whitaker (1992) 175 CLR 479, [14] (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ)).   The principle of necessity justifies treatment that is necessary and in the patient’s best interests when the patient cannot consent, but not where treatment is contrary to the known wishes of the person (In Re F  [1990] 2 AC 1).

When deciding what treatment is reasonably necessary and in a patient’s best interests, the patient’s history is clearly relevant.   Whether it’s to determine what treatment they want or what treatment is indicated, or contra-indicated, in the particular circumstances.

A bracelet or necklace, whether it’s provided by Medic-Alert or just something they’ve had engraved at the local jeweller’s is one way of communicating that history.   In Malette v Shulman [1990] 67 D.L.R. (4th) 321, the plaintiff carried a card that said she did not want a blood transfusion under any circumstances.    The card was ‘the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes (p 428)’ and via the card she ‘She gave notice to the doctor and the hospital, in the only practical way open to her’ of her wishes (p 431).  (See also ‘Medical tattoos offer important health information’ March 3, 2012  )

A medic-alert bracelet may have advance directives (like Do Not Resuscitate) or something else such as recording a prior condition or allergy.  In any case, like Ms Malette’s card, it is the only way to communicate with health care professionals if the patient cannot speak for themselves.    There can be no justification for ignoring it.   A doctor who needs to treat a person could not ignore their advice that they are allergic to a particular drug, regardless of whether that information is given verbally or via a bracelet.  A doctor or paramedic who is faced with a semi-conscious patient and who has to try to determine what is the cause of their symptoms cannot sensibly ignore a bracelet that reports the person is epileptic, or diabetic or has any other condition that might be relevant.   That of course won’t say that the reason for their current condition is that pre-existing illness but in forming a diagnosis and treatment plan, the health professional should at least consider it.

All of this assumes the medic-alert bracelet is located.  If it is not found and there is no negligence in not finding it, eg it’s in the person’s pocket rather than on their wrist so a ‘noes-to-toes’ examination does not turn it up, then of course it can’t be considered. Where it is being worn however, at some point it should be located and once that is done it can’t sensibly be ignored.

If the information is ignored, so the patient receives treatment that is contra-indicated but which would have been avoided if the information on the bracelet had been acted upon, or if diagnosis is delayed again because the information is ignored and if the wrong or delayed treatment can be shown to have made the patient’s long term outcome worse, then there could be liability in negligence.    For registered health professionals there could also be issues of professional discipline because one would have to ask whether it is satisfactory professional conduct to ignore the patient’s advice and history when the person has gone to significant lengths to attempt to communicate that relevant information to their health care professionals.


Categories: Researchers

NSW Paramedic and fire fighter – when does one role start and finish?

8 July, 2015 - 12:22

This question comes from a NSW Paramedic and fire fighter.  My correspondent says:

I am a part time NSW Ambulance paramedic who also works as a paid fire fighter with Fire & Rescue NSW. In my role as a fire fighter I often end up attending to patients at an incident. I have had various people give me different advice about what I can and cannot do in terms of treating a patient whilst working as a firefighter. The consensus seems to be that I am limited to providing basic first aid treatment no higher than the level of training provided by the fire brigade, despite my paramedic training and skills.

My question relates to where I would stand in terms of performing patient assessment and treatment that was part of my paramedic scope, whilst working as a fire fighter (bearing in mind that I am limited only to the equipment carried on a fire truck and obviously not including administering drugs)?

Would I be negligent in providing or not providing treatment that I was trained in as a paramedic, whilst working as a fire fighter?

I’ve written before about doctors, paramedics and nurses using their professional skills outside work and when acting as a volunteer – see:

What distinguishes all those posts from this one is that the health professional was acting as a volunteer for a health service –a doctor working with Surf Lifesaving is part of the beach first aid service; a paramedic volunteering for St John or working an overtime shift at a country, non-MICA station.  Here however, the paramedic is working for a fire brigade – is that different?

Let me start with the example of the doctor and surf lifesaving.  Putting aside the actual process of getting someone out of the water, one of the roles is to provide first aid and, in the scenario given in the discussion (Doctor as volunteer Life Saver and scope of practice (February 6, 2015)) the doctor was doing CPR.   So here is a situation where someone may come to the lifesavers (or St John in ALS Paramedic as volunteer with St John (WA) (April 5, 2014)) for health care so the volunteer has a duty to provide health care that is reasonable in the circumstances and required in the patient’s best interests.  They can’t deny or turn off the fact that they are a doctor (or paramedic).    Further if they don’t do something that they are competent to do and know is required in the patient’s best interests, and the reason they don’t do it is because they have been instructed not to or worse, simply think that they must limit their care to some lower standard else they will be ‘liable’ or ‘not insured’, then they are not acting in the patient’s best interests. Rather what they are doing is acting in their own best interests.  This is not only unethical it would not be acting ‘in good faith’ so protections under volunteer protection and good Samaritan legislation could be lost.  This would be consistent with the motivation behind those laws; that is they are designed to encourage, not discourage action (see also Good Samaritan legislation and scope of practice (March 27, 2015)).

But a fire brigade is different.  A fire brigade (or at least a brigade from NSW Fire and Rescue) is there to ‘to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district’ (Fire Brigades Act 1989 (NSW) s 6).  The fire brigades are not (yet) an emergency medical service (Fire fighters as EMS providers (January 31, 2013)).  People may expect a fire fighter to provide first aid to a person affected by a fire or hazardous material service but the fire brigades, and fire fighter’s primary concern will be the fire or the hazardous materials.  Fire fighters would and should pass the patient over to the ambulance service or depending on the nature of the event (eg a major bushfire) a support agency like St John Ambulance.

Whilst a fire brigade, and therefore a fire fighter, will have a duty to provide reasonable care to a person who is injured, it will not be to the same extent as an ambulance service or I would suggest, NSW Ambulance, St John Ambulance or Surf Lifesaving. The focus of those agencies is on the person, the focus of the fire brigades is the fire or hazard. (Compare the decisions in Capital and Counties v Hampshire Council [1997] QB 2004 (fire brigades do not owe a duty to individuals) and Kent v Griffiths [2001] QB 36 (London ambulance service does owe a duty to 999 caller) – both of which are discussed in multiple posts on this blog).

Let us now return to the scenario.  My correspondent is on duty with NSW Fire and Rescue, he may be at a motor vehicle accident, a fire or a hazardous materials incident (or any other type of incident) but let us assume the ambulance service is not yet there.  Let us also accept that my correspondent is ‘limited only to the equipment carried on a fire truck and obviously not including administering drugs)’.  I’m not sure but my knowledge of what’s in a standard appliance would cause me to think there is probably a first aid kit and medical oxygen.   It must follow that if a person is being treated by a fire fighter they could expect that if not every firefighter, at least one firefighter travelling on that appliance can use that equipment.  They would reasonably expect to get care that involved basic first aid and, if necessary, oxygen therapy.  A paramedic can administer that treatment without issue.

So what else can a paramedic do? My correspondent talks of ‘performing patient assessment and treatment that was part of my paramedic scope’.    Patient assessment cannot be an issue.  Let us assume that the person has come out of the fire and is assessed by a fire fighter who says ‘you seem ok mate’ but my correspondent – a paramedic – thinks ‘I’m not so sure’ and stops to do a more thorough assessment. Again I’m assuming he’s limited to what’s on the fire appliance so no sphygmomanometer, stethoscope or other tool, but perhaps more thorough questioning and just knowing what to look for is helpful.

How could there be any liability for doing that?  It still the case that one can’t just pretend you don’t know what you do in fact know.  Doing that assessment cannot harm the person but not doing it could if, for example, they’re allowed to go home when they should be referred to an ambulance crew for even more thorough assessment.

What of a treatment?  Here let us assume that the patient is suffering from asthma (not unlikely at a fire) and my correspondent decides to administer ‘expiratory assistance’ (Ambulance Service of NSW, Protocol M4: Asthma, January 2011).  I’m no longer a clinician but we used to do external chest thrusts so let me assume that is still what is meant by ‘expiratory assistance’ (I’m sure one of the paramedics who follows this blog will correct me if I’m wrong on that).  Let me also assume this technique is not taught to firefighters (again I’m happy to be corrected by any of the firefighters on the blog).    What could happen?  Well I suppose one could fracture the patient’s ribs.  Now if the procedure is performed competently, and if this is a known risk, and if the patient benefits there can be no liability so let me assume the procedure is done negligently.

Who could the patient sue?  They could sue the Fire Brigades.  The person doing the treatment was clearly a fire fighter acting in the course of his or her duties (they’re at the fire, in uniform). The fact that they performed a treatment negligently is what vicarious liability is all about; an employer is liable for the negligent acts of its employees, not the non-negligent ones.  In this case the paramedic/firefighter may have performed beyond the skills of a firefighter but that does not mean the fire service would escape liability. In CML (1931) 46 CLR 41, Gavan Duffy CJ and Starke J said (at 64): “It is not necessary that the particular act [‘expiratory assistance’] should have been authorized: it is enough that the agent should have been put in a position to do the class of acts complained of.”  Here the employee fire fighter is there to perform his or her duties which must include giving first aid to those injured by the event so the action is in the ‘class’ of authorised acts.

For the fire service to escape liability they would have to show that the employee fire fighter was engaged in ‘frolic of their own’.  That might be the case if the paramedic carried on the appliance a personal drug kit and advanced life support equipment but that is not the scenario described here.   Here my correspondent is limited to the kit carried on the appliance.  He or she is not doing something for his or her benefit, they are trying to help a person, in need of assistance, at an incident to which they have been called.  Remember that the brigade is to ‘‘to take all practicable measures for … saving life’.   I would be certain that any liability would still lie with the fire service.

What if the paramedic doesn’t do anything?  Assume first that the person is being cared for by another fire fighter.  In that case you have a person getting first aid but who could benefit from the extra knowledge and experience of the paramedic fire fighter.  The patient, assuming they could prove the outcome would have been different had they been treated by the paramedic/fire fighter, would have trouble suing the Fire Brigade.  The fire service is not under a duty to provide advanced life support or anything other than basic first aid.  They don’t hold themselves out as an EMS service, they are a fire service.  All that might be expected form a fire service is whatever they teach their fire fighters to do and that is the care the person was receiving.

Could the fire fighter/paramedic be sued?  I don’t think so. He or she is there as a fire fighter, to impose a duty to provide some higher level of care, even any level of care, could distract the fire fighter from his or her duties.   Assume a person is pulled from the fire and needs first aid, my correspondent may well leave the person with another fire fighter as his current duty requires him to attend to the fire.   There can’t be any obligation either upon the fire service or my correspondent to be in charge of anyone injured in the fire because he or she is the best qualified.  That would deny the fact that, at this moment, they are a fire fighter.

The situation would be different if the person was not being attended to by anyone and the paramedic/fire fighter refused to step in.  Then the fire service would again be liable (if it made a difference to the outcome) as the fire service would owe some duty to a person pulled from the fire as the fire brigade is there to there to ‘to take all practicable measures for … saving life …’ (Fire Brigades Act 1989 (NSW) s 6) so the service has to ensure that some care is provided, though not by a paramedic.    A failure by all fire fighters at the scene, including my paramedic correspondent, to act would be a failure by the brigade.

Conclusion

My conclusions are:

  1. If my correspondent undertakes a ‘patient assessment and treatment that was part of my paramedic scope, whilst working as a fire fighter (bearing in mind that I am limited only to the equipment carried on a fire truck and obviously not including administering drugs)’ and benefits the patient; all well and good.
  2. If he or she harms the patient, then in my opinion, the fire service would be vicariously liable.
  3. If my correspondent does not provide patient care because he or she is engaged with other duties to do with the fire or incident response then neither my correspondent nor the fire brigades would be liable as neither are under a duty to provide paramedic care at the fire. This would be the case even if the patient can show that they would have had a better outcome if that care had been provided.
  4. Provided another fire fighter is looking after the patient, then if my correspondent does not provide patient care because he or she is concerned with protecting his or her own interests, that is they are scared of liability, then that action would be unethical and I would suggest not in good faith, but I still don’t think that could lead to liability as the person is getting the care of a reasonable fire service.
  5. If no-one is looking after the person and my correspondent is not otherwise engaged in firefighting tasks, then the fire service could be liable if he or she refuses to treat the person. If that refusal is motivated by a fear that of liability then that would be both unethical and not acting ‘in good faith’.   The fire service would owe a duty to provide some care and if the only available fire fighter fails to act, the fire service would be liable for not ensuring that the relevant care is provided.

Categories: Researchers

Liability for motor vehicle accident – NSW ambulance on urgent duty.

6 July, 2015 - 17:43

A correspondent has brought to my attention the decision of the NSW Supreme Court in Health Administration Corporation v CJL Haulage Pty Limited [2015] NSWSC 858 (1 July 2015).  This case arose out of a motor vehicle accident on 25 July 2008 (nearly 7 years ago – justice moves slowly).

At the time the ambulance was being driven on ‘urgent duty’ in response to a call to a motor vehicle accident.  Due to traffic ahead the ambulance was being driven on the wrong side of the road.  The plaintiff was driving a truck; he turned right across the path of the ambulance and a collision occurred.  Although it’s not clear the inference is that both ambulance officers and the truck driver suffered injuries.  My understanding of the situation is summarised in my drawing attached. (Do note this is not to scale, does not represent the actual road layout etc.  I’ve just read the judge’s description of what happened in paragraphs 4-6 and this is how I’ve visualised it for my benefit).

The issue became who was negligent?  The matter was heard in the Local Court where the Magistrate, Stapleton LCM, found that the ambulance driver was negligent and the truck driver was not.   The Health Administration Corporation (being the legal entity responsible for the ambulance service (see Health Administration Act 1982 (NSW) ss 9-13A)) appealed.  An appeal from the decision of a Magistrate is heard by a single judge in the Supreme Court, in this case Mr Justice Button.  Button J dismissed the appeal so the Magistrate’s findings and conclusions were affirmed.

This was an action in negligence.  In negligence the plaintiff has to prove that the defendant was negligent that is that the defendant owed the plaintiff a duty of care, that they failed to exercise reasonable care and that as a result the plaintiff was injured.  Button J said (at [37]) ‘it is noteworthy that the judgment says little, if anything, about the elements of the tort of negligence at common law, as modified by the provisions of the Civil Liability Act 2002 (NSW).’  That is, the Magistrate did not deal with the issues of duty, breach and damage, but that was because, said Button J, of the way the parties ran the case.

A court is an adversarial place where the judge or magistrate is asked to rule on the issues put before them.  This case was run on the basis that the Australian Road Rules would determine the matter.  This was unusual.  The Australian Road Rules define driver’s obligations and these are enforced by way of criminal penalty, that is the rules set up criminal offences.  Rule 306 that provides an exception for ambulance officers and others is providing a criminal defence.  Compliance (or not) with the rules does not determine whether or not there has been negligence.  As Meagher JA (with whom Gleeson and Sackville AJA agreed) said in Verryt v Schoupp [2015] NSWCA 128 at [4] ‘the determination of what reasonable care requires in any given case is not resolved by asking whether the relevant conduct was or was not prohibited by one of those rules’.

In this case however, the parties did run the case on the basis that compliance with the road rules should determine where liability lay.   The appellant Health Administration Corporation argued that the ambulance driver had the benefit of rule 306 and the truck driver was obliged by rules 78 and 79 to give way to the ambulance.     The respondent trucking company (that was suing, no doubt, via its workers compensation insurer that would have met the liability to the injured driver) argued that in the circumstances these rules did not apply and so if the ambulance was not exempt then driving down the wrong side of the road at 80km/h meant that the ambulance driver was negligent.

So what was the arguments?  The appellants’ argument was straight-forward.  Rule 306 says

A provision of these Rules does not apply to the driver of an emergency vehicle if:

(a) in the circumstances:

(i) the driver is taking reasonable care, and

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

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

They said those criteria were met and so the truck driver was required to remain where he was, not turn right across the path of the ambulance.

The truck driver’s argument was that there was no siren sounding and that the speed that the ambulance was travelling meant that the driver was not taking reasonable care.

Was the siren sounding?  No-one could say, with certainty that it was.  The truck driver said he didn’t hear it.  The two ambulance officers, and an independent witness, said it was sounding some time before the accident but the ambulance officers had no recollection of the actual accident and the independent witness ‘was unable to say with certainty that the siren was activated at the time of the collision’ ([13]).    The magistrate had the benefit of seeing the witnesses, including the truck driver, and accepted his evidence that if the siren was on he would have heard it.    Button J said (at [61]) ‘Whilst I respectfully consider that the finding that the siren was not operating at the time of the collision is a surprising one, to my mind it was open to the evaluation of her Honour’.  That is he might not have reached the same conclusion but an appellate court is not there to simply rehear the matter. The court’s job is to ask whether the lower court made an error of law.  Just because the lower court came to a different conclusion on the evidence does not meant that error was wrong, and that is the conclusion Button J reached.

The Magistrate also found that the ambulance driver was not taking reasonable care.  She found (at [29]) that ‘the driving by the ambulance driver at a speed of 80 km/h on the wrong side of the road was, in all the prevailing circumstances, not reasonable, not prudent, and recklessly fast’.   Further the driver was not paying sufficient attention to the vehicles on the left and did not at any stage consider whether she should move back to the ‘correct’ side of the road.

One interesting issue is that the Magistrate said (at [51] of Button J’s judgement):

It seems to me that a further part of the assessment of whether it was reasonable that the rules should not apply, is how serious was the emergency she was attending. I accept that it was a lights and siren emergency which is a class of emergency where drivers are required to put on their lights and sirens so as to require, pursuant to the relevant rules, 78 or 79 I think it was, that vehicles move out of the way. But, to my mind, there must be a range of emergencies within that rule and there’s no evidence about what she was going to attend to. So there was no way to balance up whether the risk created by driving in the wrong direction on Newbridge road with the risk that drivers might turn right off it because they wouldn’t see it coming from behind, was a reasonable risk to take in the circumstances so that the rules should not apply. There was just no evidence in the defence case about it.

It was argued that this represented an error but Button J said ‘that was a statement that was objectively correct: there was indeed no evidence in the hearing about the details of the particular emergency to which the ambulance driver was travelling. Immediately before the impugned clause in the same paragraph, her Honour referred explicitly to the fact that it was a “lights and siren” emergency, and implicitly to the fact that it was a “class one” emergency’.

With respect to both their Honours I would disagree that ‘there was indeed no evidence in the hearing about the details of the particular emergency’.    The evidence of the driver’s partner (at [10]) was that they ‘were tasked to attend a motor vehicle accident (‘MVA’) at the tollgates of the South Western Motorway’.  That was the emergency, a motor vehicle accident.  As I’ve argued before, they can’t know before they get there, regardless of what’s been reported, what the actual nature of a person’s injuries are or whether their injuries warranted an urgent response or not; see “‘Response’ driving with NSW RFS” (February 2, 2015).   Evidence from ambulance crews that did make it, either that people were critically injured or that they were not, could not be relevant to a consideration by this driver as to what was required.  As noted this was a ‘class one’ emergency – that was the details of the emergency they were attending.

Even so Button J could find no error of law, even if the Magistrate’s finding that the siren was not was ‘surprising’ and so the appeal was dismissed.

Legal lessons

It is hard to generalise from one case based as it is on the facts, not legal principle. On the facts it would tell counsel that it may be prudent in a future case to lead more detailed evidence as to the nature of the call, but as argued above I don’t think that actually makes sense.

Specific evidence as to the use of lights and sirens may be relevant but reading the case it’s hard to know what other evidence could be called.  As even Button J said, the finding that the sire was not on was ‘surprising’.

A ‘black box’ type recorder that could record speed and whether lights and sirens were on could be useful but hardly worth the expense.

This leads to my most significant observation.  The big issue is not whether the ambulance driver was or was not negligent.  The bigger issue is the whole administration of tort law.    The ambulance officers were at work and would have been entitled to Workers Compensation under the Workers Compensation Act 1987 (NSW).  The truck driver was also at work and would have received workers compensation.   Depending on the nature of their injuries they would have also had rights under the Motor Accidents Compensation Act 1999 (NSW) but the injuries have to be very significant before it becomes worth trying to claim over and above any no fault workers compensation.

Given that all the people would have been entitled to workers compensation and give that the case was between the Health Administration Corporation and CJL Haulage Pty Limited rather than in their own name, one can infer that this was really a dispute between insurance companies.      Even if it was not, even if the issue was whether or not the parties were entitled to common law damages above the workers compensation, they were both driving registered vehicles in the course of their employment.  Neither the truck driver nor the ambulance driver would be personally liable.

So, there is a slight chance that this was about the damages to the parties but I think a much stronger inference is that this was between the insurance companies fighting over who had to pay.  And it took 7 years to work it out (assuming there are no further appeals).  And it took taxpayers to pay the judge and for the court.   And the parties had to pay all their solicitors and counsel.  And remember there was no chance that any driver was going to be personally liable and they were all going to get at least workers compensation regardless of the outcome.

Installing a ‘black box’ or leading different evidence wasn’t going to have any significant impact on the people involved in the accident.  It may have just resolved some issues with more certainty for the benefit of one insurer or the other.  You do have to wonder why the taxpayers of NSW (and Australia) continue to fund such a ridiculous, slow system for insurance companies to try to settle arguments over who pays what to each other’s shareholders.


Categories: Researchers

What is the difference between an inquiry and a court?

24 June, 2015 - 17:18

A correspondent from Victoria asks:

What is the differences between a Parliamentary Inquiry, Board of Inquiry, Royal Commission and the various jurisdictions (Criminal, Civil, Coroner) in Victorian Courts?  In particular it would be interesting to understand how each is established, how they treat evidence/witnesses/expert witnesses and the powers that each body has in relation to prosecutions/compelling witness testimony/making recommendations etc.

From a Victorian context this would be particularly interesting given the recent history of the 2009 Victorian Bushfires Royal Commission, Hazelwood Mine Fire Inquiry, the class action into the 2009 Victorian Bushfires and the Parliamentary Inquiry into the CFA Training College at Fiskville, Parliamentary inquiry into flood mitigation infrastructure in Victoria and the Review of the 2010-11 Flood Warnings and Response.

Each of these processes has or is providing much fevered speculation (and gossip) within the emergency management sector in Victoria, however I feel that my colleagues and I actually have no idea about what these bodies actually do.

Inquiries

In our paper, ‘Learning Lessons from Disasters: Alternatives to Royal Commissions and Other Quasi-Judicial Inquiries’ ((2015) Australian Journal of Public Administration (Online) DOI: 10.1111/1467-8500.12115) Professor Stephen Dovers and I wrote (footnotes omitted):

Governments have a number of options for inquiring into and learning lessons from events. Departmental inquiries, inquiries under existing legislation, Ministerial, and Parliamentary inquiries may all be used to investigate and report on matters of interest to the Government. The most significant, prestigious, and independent option open to government is a Royal Commission. A Royal Commission is an ad hoc inquiry established by the Government to inquire into specified matters. In all Australian states, other than Victoria, legislation governs the establishment, power, and authority of a Royal Commission. The defining features of a Royal Commission are as follows:

  • the Commission, although established by the Government, is commissioned by the Governor General (Commonwealth) or the Governor (States) and is therefore independent of Government;
  • except in Victoria, Royal Commissions enjoy special coercive powers; they can require people to attend to give evidence and produce documents even where the evidence they produce might incriminate them, that is suggest that they are guilty of a crime; and
  • hearings tend to be in public and witness may be examined and cross-examined by counsel assisting the commission as well as counsel who have been granted leave to appear to represent the interests of parties who may be affected by the outcome of the inquiry.

The use of Royal Commissions to inform policy development has decreased and they are now, primarily, used to investigate ‘allegations of impropriety, maladministration and major accidents’.

A parliamentary inquiry is established by the Parliament when it wants to inform itself on matters of interest to the Parliament.    In Clough v Leahy (1904) 2 CLR 139, when considering the power of a government to appoint a Royal Commission, Griffith CJ said

The power of inquiry, of asking questions, is a power which every individual citizen possesses, and, provided that in asking these questions he does not violate any law, what Court can prohibit him from asking them? He cannot compel an answer; and, if he asks a question and gets an answer which is defamatory of anybody else, and the circumstances are such that the occasion is not privileged, the person who utters the words is liable to the consequences of an unlawful publication of defamatory matter… every person is free to make any inquiry he chooses; and that which is lawful to an individual can surely not be denied to the Crown, when the advisers of the Crown think it desirable in the public interest to get information on any topic.

Applying that to the Parliament, provided the Parliament is acting within the scope of its authority it can set up an inquiry into any matter it likes.  The website of the Australian Parliament (http://www.aph.gov.au/About_Parliament/Work_of_the_Parliament/Parliament_at_Work/Parliamentary_Privilege) says:

Each house has the power to require the attendance of persons and the production of documents and to take evidence under oath. This power supports one of the major functions of the houses: that of inquiring into matters of concern as a necessary preliminary to debating those matters and legislating in respect of them. The power is dependent upon the power to punish contempts, by which the houses may enforce the attendance of witnesses, the answering of questions and the production of documents.

A ‘Board of Inquiry’ may be established under existing legislation, eg the Defence (Inquiry) Regulations 1985 (Cth) makes provision for the appointment of Boards of Inquiry.  They are appointed by the Chief of the ADF or the Chief of one of the services so their terms of reference are set by the appointing authority.  The inquiry into the Hazelwood Mine fire was also established as a Board of Inquiry.  At the time Victoria did not have ‘inquiry’ legislation but relied on s 88C of the Constitution which said

The Governor in Council has, and is to be taken always to have had, the power to appoint a board for the purpose of inquiring into such matters as are specified by the Governor in Council.

That, rather unhelpfully, did not explain what powers a Board of Inquiry had or how it differed from a Royal Commission.  Today there is the Inquires Act 2014 (Vic) which provides for both Royal Commissions and Boards of Inquiry.  Fundamental differences are:

  1. A Royal Commission can issue search warrants and seize documents and things (Part 2; Division 6), and
  2. The right to refuse to answer questions on the basis that to do so would reveal confidential legal communication or would incriminate the witness in a criminal offence do not apply before a Royal Commission Part 2; Division 7).

Coroners hold inquiries (into fires) and inquests (into deaths).   The office of the Coroner is one of the oldest in English law dating back to the 12th century. Today Australian coroners investigate deaths and, except in Queensland and Western Australia, fires and other accidents or disasters. The decision to hold an inquest or inquiry and to determine the scope of that investigation is a matter for the coroner, not the government.

What is fundamental about all of these process is that they are fact finding inquiries; they have no capacity to find anyone guilty of an offence, to order the payment of compensation or to adjust the legal rights of anyone involved in proceedings.

Because none of these bodies are courts, they are not bound by the rules of evidence (see in particular Inquires Act 2014 (Vic) s 14 (Royal Commissions) and s 61 (Boards of Inquiry) and Coroners Act 2008 (Vic) s 62).  Because they are not bound by the rules of evidence and because people may be compelled to answer questions that would incriminate them, it is the case that answers given in these proceedings are not admissible in any subsequent court proceedings (Inquires Act 2014 (Vic) ss 40 and 80; Coroners Act 2008 (Vic) s 57; see also Matthws v SPI Electricity (No. 3) [2011] VSC 399 discussed in my post ‘More from the Black Saturday litigation’ (September 6, 2011)).

These bodies may make recommendations based on their inquiries but they are not binding; that is no one is obliged by law to implement them.  Of course most institutions do and governments may well commit themselves to implement the inquiries of high powered and high profile inquiries, but they are not legally required to do so.  Agencies may also look at recommendations and decide they are not helpful, or affordable, or still relevant in which case they may be ignored.

Courts

Courts are different.   Courts are standing bodies (that is they do not have to be established on a case by case basis) and they are open to allow parties to bring disputes for resolution.  That means governments can be taken to court like anyone else rather than being in control of the proceedings.  Courts are adversarial.  Although we hope they will determine ‘the facts’ they are required to adjudicate on issue put before them by the parties.  They do not conduct their own investigation and have to rule on the allegations made and evidence presented.   In that situation the truth may not be the winner as it may not be the issue; for example in a criminal trial the court’s job is to decide whether the Crown has proved, beyond reasonable doubt, that the accused committed the offence with which he or she has been charged.  If there is some doubt it is not the Court’s job to determine who in fact committed the offence or whether the accused is guilty of some other offence (subject to some specific statutory rules that do allow a court to substitute a lesser offence if satisfied of the accused’s guilt of that offence but not of the more serious offence charged.  That means a person charged with assault causing actual bodily injury could be acquitted of that offence but convicted of the less serious offence of ‘assault’).

The essential rule in a criminal trial was set out in 1935 in the case of Woolmington v DPP [1935] AC 462 where Lord Sankey said:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner … the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

Unfortunately attempts to whittle down that rule are made but, subject to any specific statutory rules, a person is presumed to be innocent of the offence charged unless and until the Crown satisfies the judge or jury (if there is one) of the accused’s guilt.  The court must be satisfied of the accused’s guilt ‘beyond reasonable doubt’.

In criminal cases the matter is between the State or the Crown and the individual accused.  In civil courts the matter is between two parties though one of those parties may still be the government.  If a person is convicted of a crime they are punished, by orders to pay fines or orders that restrict their freedom.  If a person is found to have committed a civil wrong they may be ordered to pay compensation to make good the harm they have done, or they may be ordered to stop doing whatever they are doing that is wrong or a nuisance.   In a civil case the plaintiff must prove the case ‘on the balance of probabilities’ that is they must convince the court that it is more likely than not that things happened the way they allege.

What sets the courts apart from inquiries is:

  1. They are adversarial, the court sits as a referee of the contest between the parties; it is not inquisitorial, that is making its own investigations.
  2. A court can adjust rights – a court can order a person to pay compensation, a fine or go to gaol;
  3. Because courts can affect the rights of the parties they are bound by the rules of evidence. The rules of evidence may exclude evidence that some people may think is relevant to the issue at hand but for reasons of policy have been held to be inadmissible, eg a confession obtained by torture cannot be used even if it does tend to suggest the accused’s guilt because the price paid to obtain that evidence is too high.
  4. Because a court is bound by the rules of evidence a court cannot require a person to answer a question that would suggest their own guilt, nor can it require a person to disclose confidential communication between lawyer and client (Evidence Act 2008 (Vic) s 118 and 128. There are other privileges too such as Professional confidential relationship privilege; Sexual assault communications privilege; Journalist privilege; privilege in Religious Confessions and public interest exceptions).

A court does not make recommendations though, hopefully, if a judge rules on issues such as whether a hospital was negligent, there will be some learning from his or her conclusions, but given most cases settle, most of the time the court will make no relevant findings on what happened or how to prevent a future occurrence.

Conclusion

The answer to my correspondent’s questions can be given in the table attached <Inquiries table>.  It should be noted of course that this discussion (as all on this blog) and the attached table are speaking generally and there are variations across the legislation and the jurisdictions.  For example even in a court a person can be compelled to answer questions that may incriminate them but they are given a certificate that means the answers cannot be used in subsequent proceedings (Evidence Act 2008 (Vic) s 128).   Accordingly the information given here is a ‘broad brush’ overview and does not delve into the precise details but does draw out the key distinctions between the various institutions.


Categories: Researchers

Agency support when facing criminal charges

17 June, 2015 - 02:09

A correspondent writes:

I have a question that on face value seemed quite simple and would be able to be solved with a common sense policy, but as the matter has been discussed in more detail, it has seemed to become clouded.

I manage a Tasmanian unit within a government enforcement agency. I have been advised that in the course of the Officers delegated duties, if an allegation of a criminal nature is made (such as the scenario below), and if the Officer denies the claim, it is up to the Officer to provide and pay their own legal representation.

Scenario

  • An Officer in the course of his/her daily duties attends a property to speak to a resident about a relevant matter in which they are delegated to investigate.
  • At a later time, the Officer is advised that a complaint has been put forward to Tasmania Police revolving around an inappropriate action (inappropriately touched, harassment etc.) whilst the Officer was at the resident’s property.
  • The Officer denies the resident’s claims to the enforcement agencies management.
  • The Officer asks if he/she could be provided with legal representation due to the matter.
  • The Officer potentially has out of pocket expenses relating to defending himself/herself against the accusation. Even if Tasmania Police do not proceed to charge the Officer, they have out of pocket expenses for an incident which was born directly from conducting his/her delegated duties, as an Officer for the enforcement agency.

This is a scenario that has not occurred (to the best of my knowledge), but has been identified as a possible risk. The advice provide to me by the employer is that the Officer would stand alone regarding any defence of the accusation as it is a criminal matter. As an example if an accusation is made the Officer would be required to seek legal advice at their own expense and then (on return to the role after the investigation was founded to be vexatious etc) continue to put themselves in a vulnerable position with the possibility of the same act occurring, without any coverage from the agency. My unit is not part of a union and does not have personal insurance of this kind. The agency does have insurance but it is not apparent to criminal matters. The unit does not wear body worn cameras and works in an autonomous role regularly.

It is my opinion that this is a work health and safety matter and it would be up to the agency to reduce the risk relating to this style of act, or cover the out of pocket expenses of the Officer, if the complaint is found to be vexatious.

Any advice would be much appreciated.

I’m not sure what a ‘unit within a government enforcement agency’ actually means so I’m going to play with the scenario a bit to talk about fire fighters and paramedics, but the implications will be the same.

I have previously said, on many occasions, that personal liability is not a real issue because of the legal notion of vicarious liability; that is the rule that an employer is liable for the negligence of its employees.  That rule is, however, about liability to pay compensation.  The torts or negligence system is not intended to punish but to ensure that a person who suffers a loss due to the fault of someone else gets compensation.   A convincing theory of why person A should be liable for the negligence of Person B (even if A employs B) is hard to find.  In Hollis v Vabu (2001) 207 CLR 21 Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ said (at [32]-[35]):

It has long been accepted, as a general rule, that an employer is vicariously liable for the tortious acts of an employee … vicarious liability derived originally from mediaeval notions of headship of a household, including wives and servants; their status in law was absorbed into that of the master…

A fully satisfactory rationale for the imposition of vicarious liability in the employment relationship has been slow to appear in the case law. Dean Prosser and Professor Keeton observe:

“A multitude of very ingenious reasons have been offered for the vicarious liability of a master: he has a more or less fictitious ‘control’ over the behavior of the servant; he has ‘set the whole thing in motion,’ and is therefore responsible for what has happened; he has selected the servant and trusted him, and so should suffer for his wrongs, rather than an innocent stranger who has had no opportunity to protect himself; it is a great concession that any man should be permitted to employ another at all, and there should be a corresponding responsibility as the price to be paid for it – or, more frankly and cynically, ‘In hard fact, the [real] reason for the employers’ liability is […] the damages are taken from a deep pocket.'”

Even though the justification for vicarious liability for torts may be hard to find, the rule is clear and ‘has long been accepted’.  Elsewhere I have argued that the rule must extend to volunteers (Emergency Law (4th ed, 2013, The Federation Press)) and I won’t go over those arguments here.  For the sake of the argument I will assume that this is uncontroversial, so an agency like a fire or ambulance authority or a ‘unit within a government enforcement agency’ is liable for the torts of its employees.

This is however limited to tort liability, not criminal.  The idea of the criminal law is to punish the wrongdoer so the punishment, whether it’s no more than recording a conviction or sending someone to gaol, is personal.  If an employee negligently injures someone, the employer is the one who must pay the damages but if the employee engages in criminal conduct it is the employee who is going to gaol.  Equally I can take out insurance to cover my liability for torts, so if I am in a car accident and injure another person I don’t have to pay their medical expenses, but it is me, and not my insurance broker, who must go to gaol.

So where does that leave the issue of employers paying the legal costs of employees, or volunteers, facing criminal charges?  I would suggest that there is a difference is the allegation is that the employee did exactly what they were asked to do and someone alleges that conduct was criminal.  Take the low end of the scale and a paramedic who receives an infringement notice for travelling through a red traffic light. The service may well review the records, confirm that the paramedic had been despatched on an urgent call and was taking reasonable care. One would expect that the service may well write the letter to the police asking for the infringement notice to be withdrawn and provide legal representation should the police refuse and the matter go to court.  When I was a legal officer with NSW Health back in the 1990s we certainly represented paramedics in those sort of situations.   Whether that is still the case I can’t say.

Assume a more serious offence where the paramedic is involved in a collision and someone is seriously injured.  The police investigate and taking into account all the evidence charge the paramedic with dangerous driving causing grievous bodily harm (or the equivalent, the exact language varies state to state, but each jurisdiction has some similar sort of offence).  Would the service represent the driver?  One has to imagine it depends on the view of their conduct and the attitude of the police.  If the service thinks it was just an accident and the police are being ‘over the top’ they might, but if they think the driver was acting way outside service guidelines they may not.

Another example where one might expect the service to help out might be on the fire ground where an Incident Controller has ordered a person to leave the area, they have not done so, so a fire fighter has used force to remove them (Country Fire Authority Act 1958 (Vic) s 30). In those circumstances if the person alleges there was excessive force, or force was not authorised, the service may well be willing to meet the legal defence.

Move to the other end of the spectrum, more akin to the scenario posed and assume someone alleges a paramedic, in the privacy of the ambulance, inappropriately touched the patient.  The allegation is not that the paramedic was acting in good faith as a paramedic and something that he or she did was illegal, this is conduct well outside the practice of paramedicine.    Further a service in that situation has a dilemma, it may want to support its employee but it has also has to support its patients and community – one only need consider the trouble caused too, and by, the Catholic Church for failing to put the interests of victims of abuse ahead of the church and its priests.  If the matter comes down to the paramedics word v the alleged victim it would be very difficult to be seen to be funding the paramedic.  Remember too that there are many steps before charge so if the matter did get before a court, the police will be pretty sure that they have sufficient evidence to secure a conviction.  The evidence may not stand up to scrutiny but the matter is not there on a whim.  If the matter does not get that far it may be that there is insufficient evidence but it’s not usual for anyone to say the complaint was ‘vexatious’ (even if it was).

In the circumstances it will be difficult for employees (and volunteers) to know support they might expect so hopefully there may be some guidance.  The NSW Rural Fire Service does have a policy on providing legal representation to its members. Service Standard 1.1.24 Legal Assistance for Volunteers and members of the Staff of the Service says (at [1.5]):

Legal assistance will not be provided to a member who has been charged with, or is under investigation in relation to, a criminal offence unless the alleged offence occurred in circumstances where the member was acting in good faith in the capacity of member of the Service. For example, assistance would be provided if the member was charged with an offence arising out of an operational decision on the incident ground.

Clearly they are not going to support a fire fighter charged with arson, looting or sexual assault.

What of the presumption of innocence?  That does, in theory still apply but, at the risk of getting political, the constant law and order auctions that are held each state election have watered that down.  Governments of all persuasions do not want to appear ‘soft on crime’, and the emergency services are all agents of government so there is little political benefit in supporting staff who are alleged to have committed offences unless, as with my example of a fire fighter using force to remove a trouble maker, you can paint the alleged offender as a ‘hero’ and the complainant as a ‘rat bag’.

If the allegation is inappropriate sexual behaviour, there is no votes in supporting the alleged offender – just think of the outrage over the fact that the Martin place gunman was on bail for offences for which he had not been convicted and which he denied.

If there is an allegation that a person has committed a terrorist offence or even knows of terrorism matters, they may be ‘disappeeared’ (ie taken off the street and held in a secret place with no ability to contact their family or a lawyer) for up to 7 days (Australian Security Intelligence Organisation Act 1979 (Cth) ss 34A-34ZZ).  If the Commonwealth has its way, a person may also be stripped of their citizenship without proof of wrongdoing.   The rule of law may have been considered important in 1215 with the signature of Magna Carta – its status is much more perilous today (see Mark Kenny, ‘Malcolm Turnbull breaks ranks on citizenship, declaring constitution cannot be compromised’ Canberratimes.com.au, June 16, 2015).

In the circumstances I can’t see any government agency committing itself to funding all defence cases or promising to reimburse costs for successfully defended matters.  Rather, as with the RFS, they will want a policy that leaves them room to judge each case on its merits.

Conclusion

Criminal responsibility is inherently individual so it is up to an agency to determine if and how it will fund the defence of members charged with a criminal offence.  Unlike vicarious liability for torts, there is no legal rule that says an employer must defend an employee or reimburse their legal costs if they are acquitted of the offence charged.


Categories: Researchers

Victorian Paramedics treating patients inside the A+E

12 June, 2015 - 05:39

A query from a Victorian paramedic.

My query is about where our ability to manage a patient starts and stops in the hospital environment. I took a patient into the A+E department who became highly agitated as we started wheeling him in.  He was screaming and swearing but was in police handcuffs and police were in attendance. Nurses and doctors came running to see what all the fuss was about and then the hospital called a Code “grey” (a personal unarmed threat). The patient was at the “triage desk” but had not been triaged. Meanwhile the police, two ambos and PSA’s were holding this patient down and trying to stop him from tipping the ambulance stretcher over.

The nurses and doctors were talking amongst themselves trying to find an appropriate place for this patient whilst we were battling to keep him from hurting himself and spitting and trying to bite ourselves and others. My suggestion to the doctor at the scene was that maybe we should give him something and then sort out an appropriate place for him. His terse reply was that he would get a handover first and then look at something for the patient. It took probably 10 minutes for a sedative to be administered.

My question relates to when the hospital actually assumes responsibility for the patient in the emergency department:

  1. Is it when the patient gets in the emergency door and then hospital protocols kick in?
  2. Is it when the hospital triage nurse has triaged the patient, and then hospital protocols kick in and then the triage nurse assumes responsibility?
  3. Is the patient  our responsibility whilst in the hospital, whilst being triaged, after being triaged and still falling under our guidelines  and protocols until they are handed over to the cubicle nurse/and or doctor?

My belief is the 3rd point and maybe I should have taken the initiative and administered the sedation rather than wait for the doctor. The doctor never got a handover from ambulance as we were too busy subduing this patient.

It is not unusual for ambulance to continue to manage and treat patients in the emergency department for hours at busy times of the day.

It would be nice to hear your thoughts on the rights and responsibilities of Ambulance patients in the hospital.

The answer is ‘all of the above’.  There’s never going to be a hard and fast rule here, it’s all about acting reasonably in the best interests of the patient.   The patient is ‘your’ patient until he or she is no longer in your care and I would suggest that is when you have packed up and left the room.  Imagine if you have given your handover to the triage nurse and have been asked to place the patient on a bed in a cubical in A+E.  You do that, there’s a nurse in the room, you get your gear together and go to leave and say ‘goodbye’ and you notice something about the patient’s condition that the nurse has not.  Could it be the case you have no legal duty to say something because they are no longer your patient? I do not think so.

Take the example you have given, you’ve arrived at hospital and have not been able to give a hand over. That may be quite understandable, the hospital staff are fully engaged so it is ‘reasonable’ they have not yet got to you.  Clearly you have to continue caring for your patient.  Maybe it’s not reasonable, the staff are distracted by an irrelevant consideration, you still have to care for your patient as best you can.  Think about this case, if there was no good reason for the doctor not to have authorised sedation and as a result the patient, or someone else was injured, then the doctor may well be negligent for not having acted in a reasonable time frame.  But if the doctor has not acted, what is there to stop the paramedic administering sedation if that is called for in the protocols?  The matter would be different if the doctor had clinical grounds for not wanting sedation issued but there is a difference between saying ‘I won’t make a decision until after a formal handover’ and ‘I’ve made a clinical decision not to administer sedation’.

If we want to get to some law, the leading case here is, in my opinion, the English decision of  Barnett v Chelsea And Kensington Hospital Management Committee [1969] 1 QB 428.  In this case three security guards reported to the hospital complaining of vomiting over three hours.  There was no doctor at the hospital but the nurse rang the on-call doctor who advised her to tell the men to go home to bed.  They did and one died as a result of arsenic poisoning.  Neld J said that he had to

… determine the duty of those who provide and run a casualty department when a person presents himself at that department complaining of illness or injury and before he is treated and received into the hospital wards.

He said:

In my judgment, there was here such a close and direct relationship between the hospital and the watchmen that there was imposed upon the hospital a duty of care which they owed to the watchmen. Thus I have no doubt that Nurse Corbett and the medical casualty officer were under a duty to the deceased to exercise that skill and care which is to be expected of persons in such positions acting reasonably …

He found the failure of the doctor to get out of bed, get dressed, come and see the patients and take a history and conduct an examination was negligent but there was no liability as the evidence was that any treatment that would have been administered would not have saved the poor man’s life.  We need not explore that further.

Let us return to the scenario given by my correspondent.  The A+E is open and an ambulance arrives.  The hospital, acting through its staff – the doctors and nurses and security staff – owes a duty to act reasonably toward the patient even ‘before he is treated and received into the hospital wards’.  Failure to act reasonably, eg by not having procedures in place to receive the patient or on being aware that the patient needs urgent care, failing to provide that care, could all be negligent regardless of the formalities of handover that have, or have not been met.

Equally the paramedics owe a duty to their patient again regardless of the formalities that may or may not have been met.  The question is always ‘what could anyone reasonably do in the circumstances?’  The doctor could have acted more promptly, the paramedic could have intervened according to the treatment protocols.

Conclusion

In summary, in my view the hospital owes a duty to the person in all three circumstances identified by my correspondent.  So do the paramedics.  The content of the duty may change, for example a paramedic on the street can decide to administer sedation in accordance with the standing protocols of Victoria Ambulance; once at hospital there isn’t some magic line at the casualty door that says they can’t do that but common sense would suggest that at that point one should leave the treatment decisions to the medical practitioners who will have to take a longer term view of the care and may have clinical reasons for not wanting sedation.

But the paramedic doesn’t need a doctor’s order to administer treatment under their protocols, so if the doctor refuses or fails to make a decision then the paramedic can still do so as the paramedic still has a duty to act in the patient’s best interests and a failure by the casualty doctor to examine the patient or provide needed care won’t relieve them of that duty.  The case would be different if the doctor actually examined the patient and determined that sedation was not indicated or contra-indicated in which case it would not be ‘reasonable’ for a paramedic to act contrary to that order.

So, does the hospital have a responsibility for the patient in circumstances 1, 2 and 3 described above- the answer is yes.

Do the paramedics have a responsibility for the patient in circumstances 1, 2 and 3 described above- the answer is also yes.

In a particular case how would a court assign responsibility, it would depend on what happened, and who had the last chance to avoid the event that caused the harm.  It would depend on who could have done what.  The view that once a doctor is in the room no-one else can or should do anything have long gone and have been challenged by nurses for I’m sure as there’s been a nursing profession.  Paramedics too are, or should see themselves as, independent health professionals who also owe a duty to their patients and need to act in their best interests even if that means stressing to a doctor the need to get involved or acting on their own judgment and skills.


Categories: Researchers

OHS liability for failure to arrange rescue of a trapped worker – US and Australia

4 June, 2015 - 15:38

A correspondent has drawn my attention to a US case where a company was fined for failing to make a timely call to 911 to assist a trapped employee.  The report can be found on the website of the Society for Human Resource Management (see Roy Maurer  ‘Court Rules Delayed 911 Call Willful Violation’ (20 May 2015)).   The key facts is that the employee was trapped in a confined space for some 90 minutes before anyone called 911 for professional rescue assistance.  The defendant company was prosecuted for a ‘wilful’ breach of the US occupational health and safety laws.

My correspondent asks ‘What would be the obligation in Australia, for a similar confined space entrapment?’

In the US, as I understand it, occupational health and safety is a matter of federal law; in Australia it’s state law but we are meant to have a uniform code (we don’t have it yet, but we’re working on it).  In answering this question I’ll refer to the Commonwealth law as an example of the model legislation, but the details could vary state by state.

One issue in the US case was that where an employee was required to enter a ‘permit-required’ confined space, the employer had to have in place  ‘procedures for summoning rescue and emergency services, for rescuing entrants from permit spaces, for providing necessary emergency services to rescued employees, and for preventing unauthorized personnel from attempting a rescue.”   the defendant argued that they had the procedures, they just didn’t follow them but the Act, they said, didn’t require them to actually follow the procedures.  The court accepted that:

“That may be a permissible literal interpretation, but it is neither inevitable nor sensible, as it would allow the employer to do nothing at all to rescue a worker injured or endangered at work—not even call 911,” said the court. “Literalism frequently, and in this instance, leads to absurd results.”

In Australia the Work Health and Safety Regulations 2011 (Cth) also impose an obligation upon a Person Conducting a Business or Undertaking (a PCBU) to have in place ‘first aid procedures and rescue procedures to be followed in the event of an emergency in a confined space’.  What’s more the PCBU is required to ‘ensure that first aid and rescue procedures are initiated from outside the confined space as soon as practicable in an emergency’ (Regulation 74).    In the US it was implied that the duty to have emergency procedures also required them to be used; that is made explicit in the Australian model.

The relevance of finding that the action was ‘wilful’ lies in the US Statute.  Where there is a violation of the Act the relevant inspector can issue a citation, but where the breach is ‘wilful’ a more formal prosecution and heavier penalty applies (see Occupational health and Safety Act 1970 (US) ss 9 and 17).

In Australia we have Category 1, 2 and 3 offences.  Category 1 offences are the most serious.  This is where a defendant breaches their duty under the Act and is ‘reckless as to the risk to an individual of death or serious injury or illness’ (Work Health and Safety Act 2011 (Cth) s 31).  Reckless means that they realised that their conduct or failure to act would expose someone to death or serious injury or illness but went ahead anyway (Michael Eburn, Rod Howie, Paul Sattler, Criminal Law and Procedure in NSW (4th ed 2014, Lexis/Nexis) 43).

A category 2 offence involves a breach of a work health and safety duty in circumstances that ‘exposes an individual to a risk of death or serious injury or illness’ (Work Health and Safety Act 2011 (Cth) s 32).  The difference between a category 1 and 2 offence is that to be a guilty of a category 1 offence the defendant needs to be aware that they are exposing someone to a risk of death or serious injury.  If the defendant was not aware of the possible consequences of their failure they would be guilty of a category 2 offence.

A category 3 offence involves a defendant being in breach of their health and safety duty but in circumstances where there is no particular risk of death or injury (Work Health and Safety Act 2011 (Cth) s 33).

The word ‘wilful’ does not get used in the Australian Act.

It follows that should a similar situation arise in Australia the defendant would be guilty as not only would they need to have an emergency procedure in place, they also had an obligation to ensure that the procedures were followed.  Failure to do that carries a maximum penalty of a fine of $30,000.

Depending on the circumstances however, the prosecuting authority (in the Commonwealth, ComCare) may prefer to bring a prosecution under one of the ‘general’ (rather than specific) offence provisions.

We are told that the US worker

… had been trapped for 90 minutes, [before] the manager called 911. Fire department personnel reached the scene within 10 minutes, but it took them between three-and-a-half and four hours to free Ortiz, meaning he had been trapped for more than five hours. He sustained serious injuries to his lower body from being squeezed by a large mass of sand for such a long time, including a herniated disc and a torn meniscus.

The failure to ensure his health and safety clearly exposed him to a risk of death or serious injury so this would be a category 2 offence which carries a maximum penalty for the company of $1.5 million and for an individual, $150 000.   If it could be shown that the manager was aware of, or understood or could foresee the risk, it becomes a category 3 offence which carries a maximum penalty for the company of $3 million and for the individual $300 000 or 5 years imprisonment or both.


Categories: Researchers

Protecting the title of paramedic in NSW

3 June, 2015 - 19:53

The NSW Minister of Health has introduced into the Parliament the Health Services Amendment (Paramedics) Bill 2015. The Bill, if passed will make it illegal for anyone who is not a paramedic to ‘hold himself or herself out to be a paramedic’.

The maximum penalty will be 100 penalty units or $11 000. (A penalty unit is $110 (Crimes (Sentencing Procedure) Act 1999 (NSW) s 17). Penalty units are used to allow the government to adjust fines by amending the value of a unit rather than having to go through and amend every Act that has a financial penalty).

So who is a paramedic? Three classes of people will be able to call themselves a paramedic, they wil be:

1) a person holding a qualification, or who has received training, or who has relevant experience, as set out in the regulations (that are yet to be written);

2) a person ‘authorised under the legislation of another Australian jurisdiction’ to call themselves a ‘paramedic’; or

3) an employee of the Ambulance Service of NSW, or other person, authorised by the Health Secretary to use that title.

The interesting category is the second category. Tasmania and South Australia have taken steps to protect the title of ‘paramedic’ – see ‘Protecting the title of Paramedic (South Australia)’, October 2, 2014 and ‘Ambulance Service Amendment Act 2013 (Tas)’ January 24, 2014) so there are people who are ‘authorised under the legislation [of South Australia and Tasmania] … to hold himself or herself out to be a paramedic’ but what of the other states. In those states anyone can call themselves a paramedic but that authority is not granted by legislation.   This may cause difficulties for paramedics who may be required to cross the border whether it’s Victorian or Queensland paramedics working cross border, or those from WA or the NT who might come to assist during a NSW disaster. This will not be an issue if those paramedics have a prescribed qualification, experience or training but if they don’t then they can’t use the title ‘paramedic’ in NSW. In those circumstances the Health Secretary may have to give a special authority to allow those paramedics to keep the title when working in NSW.


Categories: Researchers

How close does an emergency vehicle have to be, before you give way or stop?

1 June, 2015 - 21:19

This question comes from Queensland:

I read your wordpress blog post today around the National, QLD and WA legislations in regards to moving out of the way for Emergency Services vehicles found at https://emergencylaw.wordpress.com/2015/05/18/making-way-for-emergency-vehicles/

What prompted me to search for information around this was a news article on Brisbane Times which covered an unlicensed, drunk driver which “did not see” the police with their sirens and lights activated from ~500m behind the driver in question. URL: http://www.brisbanetimes.com.au/queensland/queensland-police-commissioner-ordered-to-pay-drunk-driver-1800-20150601-ghdzzs.html

I have now been through all of the legislation that I can find (more out of interest than any specific need) to try and determine if there is any clarity or guidance for when a driver would be required to move out of the way in terms of distance.

It would be of my personal opinion that if I had Police/Fire/Ambulances half a kilometre behind me, I probably would not need to get out of their way until I was in their way or close to it (lets say 100m behind) yet there is no mention of this at all in the legislation available.

While I am not specifically requesting legal advice of any kind, I find it to be a grey area which has not been clearly defined by our legislators which could/can result in situations like the Brisbane Times article as linked above.

The story in the Brisbane Times is not about ‘failing to give way to an emergency vehicle’ but failing to pull over when directed to by police. I’ll address both.

First, it should be understood that, as in so many areas, legislators don’t want to spell out things with too much precision as it fails to give flexibility for the myriad of circumstances that might arise. So laws are written broadly to be interpreted, in the first instance by the police and then if necessary by a court where all the evidence can be tested and an independent person (the judge, magistrate or jury) can decide issues such as what was ‘reasonable’ or whether the driver could have safely got out of the way of the oncoming emergency vehicle, or should have understood that they were being directed to stop.

To turn then to the issues, the Australian Road Rules say:

‘If a driver is in the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm, the driver must move out of the path of the vehicle as soon as the driver can do so safely’ (Transport Operations (Road Use Management–Road Rules) Regulation 1999 (Qld) s 78(2); see also Making way for emergency vehicles (May 18, 2015)

Clearly there is no ‘prescribed’ distance as there are far too many variables as to what, in the circumstances, would constitute moving out of the path safely. Once upon a time (when I was learning to drive) the rule was to the effect that if you heard a siren you had to pull to the left and stop, but that’s impracticable as one can hear a siren from a long way off and can have trouble telling where it is coming from.   So the rule says you have to safely get out of their way. What that means will depend on all the circumstances.

As noted however, this story was about failing to stop for police. Here the relevant provision is the Police Powers and Responsibilities Act 2000 (Qld) s 60 (1) which says: ‘A police officer may require the person in control of a vehicle … to stop the vehicle for a prescribed purpose’. A prescribed purpose includes and ‘to conduct a breath test’ (s 60(3)(e)). A ‘person must comply with the requirement, unless the person has a reasonable excuse’ (s 60(2)).

Whilst this section does not set out a ‘mental element’ (ie it does not say it is an offence to ‘knowingly’ or ‘intentionally’ disregard a direction) it does stand to reason that A driver can only be guilty of this offence if they know that the police are requiring them to stop. That is supported by the fact that s 60(2) allows for a ‘reasonable excuse’ and if the court accepts that, in the circumstances, it is reasonable that the driver did not know they were being directed to stop, that is an excuse. In this case we’re told the judge accepted the defendant did not see the police car 300-500m behind her. Even if she had the judge would have accepted that even if she’d seen them it was reasonable, given the distance between her and the police, not to realise that they were directing her to stop. If they were not in a position to communicate the direction to stop, she could not guilty of that offence.

One could be outraged given she admitted to the offences relating to drink driving, driving whilst unlicensed and losing control of the vehicle but just because a person is guilty of some offences does not mean they are guilty of all, nor does it justify recording a conviction for the offences the person is not guilty of. It is not appropriate to ‘load the charge’ sheet up with whatever the police can think of and then to think ‘well she did some so what does it matter’.

As we celebrate 800 years of Magna Carta we should remember its most enduring clause:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice. – (See more at: http://www.bl.uk/magna-carta/articles/magna-carta-an-introduction#sthash.G4CbGEBo.dpuf)

If this driver was not given an effective direction to stop she did not commit that offence and she was entitled to have the removed from her record. The fact that she was guilty of the other offences and remains liable for them is irrelevant.

This is not however ‘carte-blanche’ to the driver in the high speed pursuit to say ‘they were so far behind me I didn’t realise they were after me’ or the like. Each case has to be judged on its own facts and each witnesses assessed. The witness who tells a ridiculous story or demonstrates ‘wilful blindness’. For example no-one is going to accept that a driver passing an RBT station didn’t realise that the officer waving them down or holding a ‘stop police’ sign was directing it at them. It’s not, as some people would believe, just a matter of ‘saying’ ‘but I didn’t realise they were after me’; one has to be believed, and in this case, she was.

To return to my correspondent’s original question, again there is no regulation that says exactly how close police need to be to communicate the direction to stop as there are just too many possible scenarios. If, in all the circumstances, the direction is clear, then it is an offence to stop when directed.


Categories: Researchers

Subtle change in the way ambulance fees are recovered in NSW

1 June, 2015 - 13:48

The Health Services Amendment (Ambulance Fees) Act 2014 (NSW) came into operation today, the 1st of June 2015. This Act represents a subtle but significant shift in the way ambulance fees will be collected in NSW.   From today fees will be collected as if they are a fine rather than a civil debt.

Prior to today s 67D of the Health Services Act 1997 (NSW) provided that the Minister could determine the scale of fees to be charged by the Ambulance Service of NSW.   Where a person failed to pay the fee charged, the service would need to bring an action in the relevant court (in most cases, the Small Claims Division of the Local Court) and like any alleged debtor they would need to prove, on the balance of probabilities, that the defendant owed the debt claimed.   There are, under the Uniform Civil Procedure Rules 2005 (NSW), a multitude of actions both the debtor and creditor could take to ensure the debt was paid, but that the debtor was not rendered destitute.

From today the system changes so that the debt may be recovered as if it was a fine.   It is still the case that the Health Secretary is to establish the relevant scale of fees and may make rules detailing exemptions from the fees and the processes to be used to allow time to pay the fees (Health Services Act 1997 (NSW) ss 67K-67O).   What is different is how those fees are collected.

First, the Health Secretary issues an invoice. The invoice must set out, amongst other things, the due date for payment (s 67P).   Seven days after that ‘due date’, if the invoice ahs not been paid, the Secretary ay issue a ‘debt notice’ (s 67Q).   When sending both an invoice and a debt notice, the Secretary must include details on how the person can seek a review of the debt.   The review is conducted by the Health Secretary (s 67R; 67Y-67ZD). That is the person who reviews whether or not the invoice has been properly issued is the person who issued the invoice!

If the debt is not paid then the Secretary may issue proceedings in a ‘court of competent jurisdiction’ (s 67U). That is just like the current situation, the Secretary would have to issue a statement of claim, the person being sued could either admit or deny the debt and if they denied it, the matter would have to go to court where the Secretary would have to satisfy a Magistrate that the debt was legally owed.

But the Secretary has an alternative. Rather than sue in a court he or she may refer the matter to the Commissioner of Fines Administration. The Commissioner may serve a fee recovery order for the outstanding fee and for costs associated with the recovery (Schedule 9, cl 5-13).   If the fee remains unpaid after the next due date, the Commissioner can take steps to

  • Seize the debtor’s property;
  • Garnishee any debts, salary or wages owed to the debtor (that is serve an order on a person who owes money to the debtor, including their employer, to require them to pay the Commissioner instead of the debtor);
  • Record the debt as a charge on land, so if any land owned by the debtor is sold, the Commissioner recovers the amount then due; and
  • Order that the person comes before the Commissioner to answers questions about their resources and their ability to pay.

This is what would happen if a person had an unpaid fine, but remember for a fine to be due a person at least has the option of going to court. If you receive a traffic infringement notice you can ignore it and eventually the sort of processes described above will apply, or you can elect to have the matter go to court. In court the prosecution have to prove the case ‘beyond reasonable doubt’ and then and only then are you liable to pay the fine. If you still don’t pay the states fine enforcement process can be used (Fines Act 1996 (NSW)), but at least you had the option of insisting that the Crown prove its case.

For ambulance fees, a civil debt not a criminal fine, it is the Secretary that issues the invoice, the Secretary that reviews any claim that the debtor may have perhaps that they have charged too much, charged the wrong person or for some other reason they are not liable to pay the debt. There is no provision that allows the debtor to elect to have the matter independently determined by the Magistrate. Once the Secretary has determined that the amount is due and he or she refers it to the Commissioner of Fines Administration these serious civil remedies can be applied to recover the debt due.

Will it make much of a difference? It will no doubt make the process easier for the Ambulance Service, and cheaper, but it does reflect a further watering down of traditional views of rights and the idea that one can only seize your property after ‘due process’.


Categories: Researchers

Displaying Green P plates and response driving in the NSW RFS

31 May, 2015 - 21:10

I have previously written on displaying P plates on SES vehicles in Victoria. (Probationary Licence Holders and driving emergency vehicles in Victoria (July 18, 2014)).   A volunteer with the NSW RFS now seeks advice on the relevant rules in NSW. My correspondent has not only asked the question, he’s largely answered it too.   With some minor editing, he writes:

I would like some more clarification on some issues I have been having recently. I posted a comment on your blog in response to an article you wrote about driving VIC SES vehicles with P plates and under operational conditions in July last  year https://emergencylaw.wordpress.com/2014/07/18/probationary-licence-holders-and-driving-emergency-vehicles-in-victoria/#comments. Thank you very much for the advice you offered at the time, however I am still unclear on the finer points and have been in several discussions/ arguments with other members. I am a fully operational member of the NSW RFS and possess a P2 (green P) license. I have also obtained an MR license through the RFS, which was obviously authorised by my brigade captain and the district office.

I have looked at the Road Transport (Driver Licensing) Regulation 2008 (NSW) r 28, which states that:

(1) A provisional P2 licence of class C, class LR, class MR or class HR is subject to the condition (in addition to any others that may be attached to the licence) that the holder must not drive any motor vehicle unless a sign, issued or authorised by the Authority and displaying the letter “P” in green on a white background, is displayed:…

(2) However, the driver of an emergency vehicle or police vehicle (within the meaning of the Road Rules 2014), is exempt from that condition while driving the vehicle in the performance of his or her duty.

I then went on to look at the Road Rules 2014 (NSW), which state:

“emergency vehicle” means any vehicle driven by a person who is:

(a) an emergency worker, and

(b) driving the vehicle in the course of his or her duties as an emergency worker.

 “emergency worker” means:

(b) a member of a fire or rescue service operated by a NSW Government agency … providing transport in the course of an emergency…

Then I looked at the NSW RFS Safe Driving Standard Operating Procedures October 2008, which state that:

Provisional Class Two (P2 – Green “P” Plate) Licence Holders

1.13 P2 licence holders are authorised to drive RFS operational vehicles, unless restricted by local SOPs authorised by their District manager.

 1.14 P2 licence holders are required to display green “P” plates except where noted in clause 1.16.

 1.15 P2 licence holders requested to respond, in the absence of a fully licenced driver, must inform FireCom of their licence status at the time of the request and await an explicit instruction to respond if required.

 1.16 P2 licence holders are exempt from displaying green “P plates” on RFS vehicles while driving the vehicle in the course of an emergency. 

I have been told by numerous people within my brigade and others in my district that I cannot respond under any circumstances, however my interpretation of the above is; the law clearly says there is no restriction on a P plate driver responding and the SOP infers that you can respond with permission from fire control. This also brings up the problem that we are a small brigade which often struggles to get a crew together if there is an incident during the week, which often means our crew leader acts as driver as well, if response driving is required, which is far from ideal, even when there is a fully qualified driver present (me), who could respond and free up the crew leader to do his job of managing the radios etc.  I also noted there is nothing specifically said about P platers in the response driving section of the RFS SOP. The SOP also seems to be in contradiction to the Australian road regulations and the road transport (driver licensing) regulation 2008 – REG 28, when it comes to displaying P plates. Surely the relevant legislation overrides the SOP?

It has been the topic of much discussion/ heated argument recently at my brigade and I seem to get a different answer and interpretation from each person I speak to. I was actually reprimanded today by a field officer about not wearing P plates on a vehicle when I had been told minutes before by another field officer not to worry about putting them on. If you could please provide some clarification on these issues it would be MUCH appreciated!

As I said my correspondent not only asked the question, he also answered it when he said ‘the law clearly says there is no restriction on a P plate driver responding and the SOP infers that you can respond with permission from fire control’.

In summary –

The Road Rules 2014 (NSW) make no mention at all about provisional licence holders in rule 306, ie the rule that gives the exemption from the Road Rules for the divers of emergency vehicles, nor is the person’s licence type in the definition of who is an emergency worker.   So there is nothing in the Road Rules 2014 that would say that a provisional licence holder cannot drive under response conditions.

The RFS Safe Driving Standard Operating Procedures does not, in my view, contradict the law. The SOPs say that a P2 licence holder is required to display ‘P plates’ [1.14] except when driving in the course of an emergency [1.16]. That is what the Regulations also say. The Road Transport (Driver Licensing) Regulation 2008 (NSW) say that a P2 licence holder must display P plates (r 28(1)) except when driving an emergency vehicle (r 28(2)). Remember, however, that the Road Rules 2014 say a fire appliance is only an emergency vehicle when it is being used to provide ‘transport in the course of an emergency…’   The Road Transport (Driver Licensing) Regulation 2008 (NSW) therefore say that a P2 licence holder must display their P plates unless responding to an emergency. That is the same as the RFS SOP,

I would say that the SOP does not merely imply that a P2 driver can engage in response driving, it is quite explicit. A P2 licence holder can drive under response condition provided three conditions are met:

1)        Such driving is not inconsistent with ‘local SOPs authorised by their District manager’;

2)        There is an ‘absence of a fully licenced driver’; and

3)        There is ‘an explicit instruction [from FIRECOM] to respond’.

Compare this to the rule for P1 licence holders – ‘P1 licence holders are not authorised to respond’ [1.11]. If P2 licence holders were not to respond, then [1.11] would be repeated for P2 licence holders.

What does ‘absence of a fully licenced driver’ mean? In the scenario given, the crew leader is acting as the driver. Presumably the crew leader has an unrestricted licence that is he or she is fully licensed. On one view condition (2) is not met so the provisional licence holder should not drive.   If however the crew leader said that he or she was unable or unwilling to drive due to their other duties that would mean that there was a fully licensed driver present, but not available to drive the appliance. Does that mean there is an ‘absence of a fully licenced driver’?

I would think that ‘absence of fully licenced driver’ must mean ‘absence of an available fully licenced driver’. As a volunteer organisation, members may turn out who are licensed but who are simply unwilling, for whatever reason, to drive in emergency conditions. If the presence of a licensed driver, who has made it clear that he or she does not want to drive in emergency conditions, means there is a fully licensed driver then there could be no response as the conditions to allow a P2 driver have not been met but the other driver has declined to drive, as he or she is entitled to do. It must follow that there is an ‘absence of a fully licenced driver’ if there is no fully licensed driver who is able or wiling to drive, even if they are physically present and willing to turn out. An express instruction from FIRECOM in those circumstances would be an acknowledgment that there was an ‘absence of fully licenced driver’.   If the fully licenced driver is willing to drive, even if they are also the crew leader, then condition (2) is not met and the P2 licence holder cannot drive under response conditions.


Categories: Researchers

Marysville/Murrindindi ‘Black Saturday’ settlement approved

29 May, 2015 - 11:21

I have previously reported on the settlement of the Black Saturday litigation arising out of the Marysville Fire (‘Another Black Saturday class action settles’ (February 6, 2015)). The parties reached an agreement on 6 February 2015 but that agreement had to be approved by the court which has now been done.  In Rowe v AusNet Electricity Services Pty Ltd & Ors [2015] VSC 232 (27 May 2015) Emerton J approved the settlement of $300 million. The defendants were AusNet Electricity Services, UAM. a maintenance company contracted by them to inspect the power lines as well as the state of Victoria representing the Department of Environment, Land, Water and Planning, the Country Fire Authority and Victoria police.

The allegations against AusNet were (see [6]-[8]):

… based on the design, construction, maintenance and inspection of its electricity distribution assets (wires and poles) at Murrindindi, the training and supervision of inspectors in relation to its patrol of the Murrindindi assets and the reconnection of electricity on Black Saturday following a power failure. It is also alleged that AusNet is liable for breach of its statutory duty, in nuisance, under a derivative liability and as principal for the acts and omissions of its agent, UAM.

UAM is alleged to have been negligent in its inspection of the Murrindindi assets and in the training and supervision of its inspectors.

The State parties are alleged to be liable in relation to the failure to provide adequate warnings of the Murrindindi fire on 7 February 2009 and the Secretary of DELWP is also alleged to be liable in relation to planned burning.

The agreed settlement is ([31]) that the defendants will:

… pay the sum of $300 million (the ‘settlement sum’) in settlement of the claims of the plaintiff and group members, with no admission of liability and inclusive of costs. AusNet is to contribute $260.9 million, UAM $10 million and the State Parties $29.1 million to the settlement sum.

The settlement is more complex than that though. Although this is the end of the legal proceedings it is not the end for the plaintiffs. A class action can only determine matters that the members of the class have in common. In this case that is the question of liability.  It is now known that the defendants are liable to the plaintiffs in the sum of $300 million. What is not been determined is how much each person will recover.  There are two sorts of claimants, those were claiming for personal injury and those that are claiming for economic loss and property damage. $34 million will be made available for the personal injury claimants and their losses still need to be assessed. When each person’s losses are assessed the maximum they will recover is 80% of that final assessed value. The amount contributed by Victoria will go only to personal injury claimants ([32]). The balance of the settlement money as well as any left over from the personal injury claims will go to those who suffered economic loss and property damage. The amount they recover will be determined by the application of a formula assessing various losses such as loss of fences and the property. At [80] the judge said that the formula:

… seeks to address a number of matters:

(a) the valuation of homes as opposed to non-home buildings, and the question of whether ‘diminution of value’ or ‘reasonable reinstatement’ is the proper basis for valuation;

(b) the complications involved in treating claims in different circumstances where home and non-home buildings have been rebuilt, partially rebuilt before property sale or not rebuilt before a property sale;

(c) the valuation of fences;

(d) the valuation of ordinary home contents and domestic chattels as opposed to collectibles, and normal livestock as opposed to breed stock or bloodstock;

(e) issues regarding the valuation of gardens and trees, which have emerged from the exchange of a series of expert opinions;

(f) income losses by employees or self-employed persons not because of personal injury but because of damage to business assets or time off work to attend to personal assets or other disruptions from the fire, or wages lost by employees stood down because of the damage to their employer’s assets or slowdown in trade;

(g) lost corporate income from damage to business assets or trade slowdown;

(h) pure economic loss not covered by the above items;

(i) the costs of alternative accommodation;

(j) the valuation of claimants’ own/volunteer labour and own/donated materials; and

(k) the question of ‘inconvenience damages’.

Each plaintiff therefore still has to go through a process to quantify the amount of the damages.  This way of quantifying who was to get what was the same as the process used in the settlement of the litigation arising from the Kilmore East/Kinglake fire.

One part of the settlement involves the payment of the plaintiff’s costs. The plaintiff was represented by a firm of solicitors the conduct of the case on a no win no fee basis. To reflect their share of the risk namely that they may have done a lot of work and if the case is not been successful they would have ended up out of pocket a law firm is entitled to charge its normal fees plus an extra 25% when operating on this basis. Note this is quite different to the US system where a law firm can charge a percentage of the verdict; that is not permissible in Australia. In any event the costs were assessed at in excess of $20 million. This will be paid to the law firm before any amount is paid to the claimants. From the settlement amount there also has to be paid the further costs of administering the scheme including assessing all the various claims for damages.

I have previously commented that people settle cases not necessarily because they think are going to win or lose but because settlement is the most cost-effective way out of the problem. All the defendants in this case continued to deny liability but ultimately they (or more accurately, their insurer) agreed to contribute money. The plaintiffs to have agreed to settle even though is no expectation that they will recover 100% of their losses again because it’s cost-effective and time effective.  Settling now saves the burden had go through the litigation process and probably appeals regardless of the result.  As his honour noted (at [64]) there are:

… a number of incidental advantages of settlement, including:

(a) early finalisation of the proceeding;

(b) avoidance of continuing personal anxiety, stress and suffering;

(c) advancement of payment; and

(d) containment of legal costs.

His honour took these advantages into account when concluding that the settlement was reasonable between the parties.

So why bother?

The litigation over the Kilmore East/Kinglake fire settled for $494 million with costs in excess of $60 million (Settlement in Black Saturday litigation is approved (December 23, 2014)). This Marysville/Murrindindi settlement is another $300 million including costs of $20 million. For reasons explained above neither case is actually over, and the claimants still have to quantify how much there’ve lost and how much of the total settlement they will receive. If, as appears to be the case, we going to end up in this situation after catastrophic fires do we really need to spend well in excess of $80 million to prove that the event was someone else’s fault and how much everyone has to contribute before we begin to work out how much the people have suffered a loss actually need?   The focus appears to be all wrong starting with whom to blame rather than what has been lost.

I am reminded that following the 9/11 terrorist attacks on the United States the US government introduced a no fault compensation scheme that was open to everybody who was killed or injured in that terrible event. By signing up to the scheme people waived their right to sue so they did not have to have protracted battles with the US government, airlines, airport authorities and response agencies.  An individual lawyer was put in charge of the scheme and it was his job, no doubt assisted by staff, to try and assess how much people would receive based on the normal rules by which compensation is determined (see Kenneth R. Feinberg, What is life worth? The unprecedented effort to compensate the victims of 9/11 (Public Affairs, New York, 2005)).  Without going into the details of the scheme or how did that  what we can see is that this scheme focused on the needs of those who had suffered loss and removed the need to spend $80 million trying to find who to blame.

Spending $80 million to get to this point seems particularly egregious when the Royal Commission that inquired into these fires and was meant to determine both their cause and the good and bad points of the entire emergency management scheme, cost $40 million. That figure does not include the costs of all the various parties that appeared before the Royal Commission so there is no doubt the total costs were much higher.  That makes spending another $80 million (and that’s just the plaintiffs’ costs) and still having factual disputes as to what caused the fires and what else could or should have been done during the event seems like a particular waste of money. What we do know is that we have spent well in excess of $120 million and still AusNet deny that it was their asset that caused the fires or that they were negligent and the state parties also deny that they were negligent.  None of those issues have been resolved by the court. Because these cases have settled any determination of whether or not there was negligence or even whether an agency like the Country Fire Authority or Victoria police owe a duty care to individuals in the circumstances remain unresolved.

These comments are no reflection on the parties involved. This is the system we have the plaintiffs had no choice but to go to the lawyers, the lawyers had no choice but to commence the action if they were to try and act in their client’s best interests, and the court can only determine matters that is actually called upon to determine and when a case settles is not asked to determine the legal issues. The solution is not criticising people for taking legal action or falling back on the idea that people should be taking more responsibility for themselves and if there’s a fire they should be prepared to wear the losses. If the fire was caused by negligence than they have a legal right to a remedy and we hope that litigation including the fear of costs and reputational consequences will encourage potential defendants to act with greater care.  (Though, as I have argued elsewhere, it appears to me that bushfires are just cost where prepared to pay for the sake of having reliable electricity- Bushfires; the price we pay for electricity (May 20, 2014)).   If that is the case then the solution is not asking people not to take legal action after fires but to recognise that if we are going to end up at this point perhaps we should find a way to get straight to the point and save the millions of dollars on legal costs simply to establish liability.  Given that it is insurance companies paying out this money, and they have the means to do it but through the collection of premiums wise investment and reinsurance, then it must be time to consider some sort of no fault catastrophic insurance scheme and divert the money that is currently being spent on legal costs to improving community resilience.


Categories: Researchers

Sharing responsibility for injuries on the school sportsground

24 May, 2015 - 17:58

This question comes from a private provider of first aid services. He says:

An employed first aider was working solo at a local private school sport day in NSW. One of the visiting schools brought their own physiotherapist to help look after their boys. On two occasions when visiting boys were injured the visiting physio refused to allow the first aider to treat the injured boys even though the “mechanism of injury” (bashing heads or heads/other body parts) was consistent with a high likelihood of concussion. On one occasion a boy had been unconscious which according to Australian Rugby Union guidelines required “medical advice” and possibly a hospital visit. On the other occasion the boy was unsure if he had been unconscious but it appeared to observers that he had before the first aider was on the scene. Other parents and a doctor who was a bystander attempted to intervene to allow the first aider to treat one of the injured boys but were refused by the visiting physio.

My questions are:

  1. Who has responsibility for the welfare of boys from visiting schools if they are injured on the grounds of the “home” school?

  2. Does the presence of a physiotherapist from a visiting school release the home school and the first aider from any obligations or duty of care to the visiting students?

  3. Is the home school or first aider exposed to litigation if they are aware of what they believe to be treatment that contravenes the concussion guidelines particularly if this leads to further injury or litigation by the child or his parents?

As I’ve noted before what is written here is written for the general information of the emergency services community and cannot be relied upon as specific legal advice. The discussion will be in general terms only and assumes that the story as I’ve been given it is correct. No doubt if legal proceedings did follow different people would have different versions of the events. With that limitation in mind –

We have probably all heard that a school stands ‘in loco parentis’ vis-à-vis its students. (‘In loco parentis’ is defined as ‘in the place of a parent’ by Merriam-Webster online, http://www.merriam-webster.com/dictionary/in%20loco%20parentis).   In Commonwealth v Introvigne (1982) 150 CLR 258, Murphy J said ‘The notion that a school teacher is in loco parentis does not fully state the legal responsibility of a school, which in many respects goes beyond that of a parent’.   Even if a school owes a duty to a child that a parent does not, he did not doubt the basic premises that the school has the care of a child in the place of the parent. (See also Ramsay v Larsen (1964) 111 CLR 16 and New South Wales v Lepore (2003) 212 CLR 511).

A school stands ‘in loco parentis’ to the students enrolled at the school, not all students. In this context it means that the ‘visiting’ school had the parental responsibility for its children, which it must exercise via its staff. In this case I assume the ‘staff’ included the physiotherapist but it really makes no difference if the physio was employed or a volunteer – perhaps a parent of one of the boys etc. If the school entrusted him ‘to help look after their boys’ he was exercising the school’s obligations in loco parentis.

The way to look at this scenario, then, is to ask what is the duty of the first aid provider if a parent refuses to consent to treatment. Put in that context the answers are not difficult.

  1. Who has responsibility for the welfare of boys from visiting schools if they are injured on the grounds of the “home” school?

It’s not an all or nothing issue. Both schools have ‘responsibility for the welfare of boys from visiting schools’ but it’s not ‘joint and several’ that is they are not both responsible for everything. The schools are responsible for that which they provide – the home school has responsibility for example of ensuring the grounds are safe and maintained so if the visitor was injured because of a hole in the football oval, or because the toilets collapsed, that would be the responsibility of the ‘home’ school.   If the first aider was allowed to treat the ‘visitor’ but did so negligently then responsibility might be shared between the home school and the first aid company depending on all the circumstances. The visiting school on the other hand is responsible, along with the parents, for ensuring that its students are fit to play, have proper kit, perhaps don’t trash the ‘home’ schools facilities.

The answer is then that both have responsibility for the welfare of boys from visiting schools but exactly what part of their welfare they are responsible for will depend on all the facts including agreements between the schools as to who will provide what.

  1. Does the presence of a physiotherapist from a visiting school release the home school and the first aider from any obligations or duty of care to the visiting students?

No, but the refusal of consent may. Let us assume that it is agreed that the ‘home’ school will ensure that there are first aid services provided and they meet that obligation by contracting with my correspondent.   They are indeed providing a service, but they cannot insist that others use that service. As we know people can refuse consent to first aid services and where children are involved, it is their parent who may refuse. Here the ‘visiting’ school is in the place of the parent so they, via their staff, can refuse consent. The ‘home’ school has acted reasonably and in accordance with the (assumed) agreement by ensuring that the service is there. What more can they do?

Even if a patient refuses consent that does not necessarily mean there is no obligation upon the first aiders, again it’s not ‘all or nothing’. A reasonable first aider might stress ‘I really think they need to go to hospital, look out for these symptoms … If they get worse ring triple zero’.   Or they might, in this context, go past the physio and find a teacher from the visiting school. At the end of the day whether or not there is a duty to do any more and what might be done would depend on all the facts.

What you can’t say is that the refusal relieves the ‘home’ school, or its first aid provider from ‘any obligations or duty of care’ but it does limit what they can do. If they can’t examine or treat the person is there anything else they could or should reasonably do? If not then that’s the end of the matter.

  1. Is the home school or first aider exposed to litigation if they are aware of what they believe to be treatment that contravenes the concussion guidelines particularly if this leads to further injury or litigation by the child or his parents?

I’ll come back to ‘exposed to litigation’; what one really means is ‘will they be liable’. The answer is ‘no’.   The ‘home’ school and their first aid provider has an obligation to act reasonably, not to rescue everyone from harm.   They don’t ‘own’ the patient (see ‘Step aside – I’m a doctor’ (October 17, 2014)) and can only do what they can do.

Because the ‘visiting school’ is in locos parentis any failure in the care, described, would be the responsibility of the visiting school. In NSW v Lepore (2003) 212 CLR 511 Gummow and Hayne JJ said (at [306]):

The parents or guardians will have entrusted the children to the school, acting in loco parentis, on the assumption that they will be cared for, not abused. The common law does not usually disappoint legitimate and reasonable expectations in such matters.

That case was deciding whether a school was liable for the sexual assault of its student by a teacher, a case far removed from this one – here the issue is ‘care’, not ‘abuse’ – but the principle remains. If the child was injured because the physio, or any staff member, administered inappropriate treatment and/or refused to allow better qualified persons to render appropriate care, the liability will belong to that school, not the ‘home’ school.

Now what of exposure to litigation? Litigation is a dispute resolution process. Anyone can be exposed to litigation if one party thinks they have been wronged by another. The plaintiff’s case may fail but that does not mean they have not been exposed to litigation. In Lowns v Woods (1996) Aust Torts Reports 81-376 Dr Lowns was sued over his failure to attend an emergency when asked to do so. His defence was always that it never happened, he was never asked.   We’ll never know the truth but the trial judge, considering all the evidence, preferred the evidence to the little girl who said she knocked on the doctor’s door and he was found liable to the tune of $3million. Assume the judge found that he was telling the truth and he was found not liable; he would still have been exposed to litigation for something that didn’t happen. So can the ‘home school’ be exposed to litigation? Well they could be just as they could be if the visiting school’s bus crashed on the way home. It’s unlikely, but nothing’s impossible.

Another reason why it is unlikely a case like this would lead to litigation.

There is another reason why a case like this won’t go to court.   It would be very difficult to prove negligence here, certainly against the ‘home’ school, but why would one bother. As a school child engaged in school arranged sports, the child will be entitled to compensation under the Sporting Injuries Insurance Act 1978 (NSW) so would be better off seeking any remedy there. They might only sue if they are rendered seriously and permanently disabled but then they would have a problem showing it was the care they received, rather than the injury on the football field, that was the cause of their ongoing disability.

Conclusion

In conclusion the ‘home’ school and their first aid provider owe a duty of care to students from the visiting school, but it is not a duty to guarantee their safety, it is a duty to act reasonably in providing their contribution to the joint sporting activity. The ‘visiting school’, through its staff, stand in locos parentis vis-à-vis their students and like a parent can refuse care from the ‘home’ school’s provider. That does not mean there is no obligation upon the first aid provider, eg to try and stress the seriousness of the matter or to recommend ongoing care. What is reasonable has to be judged in all the circumstances.

In the circumstances described I don’t foresee any legal risk for the ‘home’ school. Any plaintiff has to show what more the defendant could have done and what more could the ‘home’ school have done here? If the child was seriously injured any action would be directed to the ‘visiting’ school as its obligation to care for its students is clear and stringent.


Categories: Researchers

Pre-sale disclosure of bushfire risk in WA

23 May, 2015 - 19:41

This question comes from a volunteer bush fire fighter in the Margaret River region of Western Australia. My correspondent says:

The Community Engagement department of our state fire agency encourages us to promote bush fire awareness to community members; as per “Prepare, Act, Survive”, this starts with “risk is your own responsibility and you shouldn’t rely on fire fighters for help”. This is alien to people from overseas and metro areas whose city landscapes were made fire-resistant generations ago, and who expect professional fire departments to deal with fires.

One obvious issue is that we can only “engage” after people have relocated, and it may then be physically, financially or, perhaps, legally impossible for them to achieve appropriate safety for themselves – we have estates of vulnerable elderly retirees and young fly-in, fly-out families in highly flammable bush blocks. In our land of “a fair go” and in an age where Consumer Protection is fairly advanced, it seems anomalous that no warning is given on advertisements promoting family homes in high-risk bush locations.

Does the U.S.A do any better?

Note: I did try, unsuccessfully, to interest the ACCC in this  – quoting Bushfire CRC research,:

“..in many peri-urban places around Australia the growing mix of people and property with bushland creates the potential for disaster..”  “..The results demonstrated that people have a heavy reliance on the Rural Fire Brigade to protect people and property during bush fire (93%). Those who may rely more heavily than others include those with an urban background, newcomers (<10 years),….” (FIRE NOTE, Bushfire CRC, Issue 9, November 2006, emphasis added).

The only specific question here is ‘Does the U.S.A do any better?’ and that I can’t answer but I’ll make general comments.

First the ACCC is in effect the ‘guardian’ of the Australian Consumer Law and the Competition and Consumer Act 2010 (Cth) (which replaced the Trade Practices Act 1974 (Cth)).   As might be inferred by the name of the Act, the ACCC is concerned with competition and anti-competitive practices, and consumer rights and protection.   The issues raised by my correspondent do not relate to ‘competition’ but ‘consumer protection’.

For the purposes of the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law (which is Schedule 2 of the Act) a consumer is a person who buys goods and services for less than the prescribed amount (currently $40 000). Land (or a house) is neither a ‘good’ (s 95A, definition of ‘goods’) and is likely to cost more than $40 000 so the sale and otherwise of land is not governed by the Act.   It stands to reason that the ACCC are not interested in the matter; it is outside their area of authority or concern.

What then of others and who should issue a warning? In the absence of legislation we’ve all heard of the rule ‘caveat emptor’ – buyer beware. Depending on the jurisdiction a vendor has to make information about the property to the buyer (see http://advice.realestateview.com.au/buying/ultimate-first-home-buyers-guide/13/) but there is no compulsory disclosure in WA (see https://www.commerce.wa.gov.au/sites/default/files/atoms/files/salebyofferandacceptance.pdf).

When buying a house a purchaser should (but doesn’t have to) make inquiries of the local authorities.  It is up to the prospective buyer to make their own enquiries when buying land to determine whether or not ‘factors affecting use and enjoyment of land’ have been recorded on the title (Transfer Of Land Act 1893 (WA) s 70A) and whether or not the property is in a designated bushfire prone area. It is also up to them to decide what they do with that information and if they seek advice on what they can do to reduce the risk of being impacted by bushfire. If they fail to do that, that is their own lookout.

There have been calls to increase the level of warning information given to households but equally it has been reported that there is some fear of liability for disclosing risk information. It is my view that fear is unfounded and I discuss that in some detail in a paper I wrote with John Handmer or RMIT – ‘Legal Issues and Information on Natural Hazards’ (2012) 17 Local Government Law Journal, 19-26.

Even if there is no legal liability there are political realities and so councils or state governments may face community backlash if they start giving stark warnings to potential buyers of fire risk or impose an obligation upon vendors to do so.   And let us remember that even in fire prone areas, the risk of your home being consumed by bushfires remains small.   I recently supervised a student who wrote a paper on why insurers don’t take a more active stance in encouraging people to take steps to prepare their property for bushfire. He found

Preliminary analysis of statistical data on natural disasters shows that from 1967 to 2010, fire has only accounted for approximately 8 per cent of total losses when normalised to 2011-dollar values.

McAneney, Chen and Pitman calculate that:

… the average annual probability of a random home on the urban–bushland interface being destroyed by a bushfire to be of the order of 1 in 6500, a factor 6.5 times lower than the ignition probability of a structural house fire. Thus on average and if this risk was perceived rationally, the incentive for individual homeowners to mitigate and reduce the bushfire danger even further is low. (http://www.bushfirecrc.com/sites/default/files/managed/resource/mcaneney-et-al-2009.pdf)

Governments have an interest in improving public safety but steps to do so, including requiring people or agencies to add a ‘warning … on advertisements promoting family homes in high-risk bush locations’ is not cost free. Governments would have to impose the obligation and then enforce it with no doubt political backlash; and given the real risk is it worth the grief? That is a political and not a legal question.

Conclusion

It’s not for me to say whether such warnings should be required, but I can say that under current law there is no obligation for warnings to be given when advertising a house for sale. Such a warning is not required by the Competition and Consumer Act 2010 (Cth), the common law or the Transfer Of Land Act 1893 (WA).


Categories: Researchers

A hairy issue for Queensland firefighters

21 May, 2015 - 13:56

A Queensland firefighter has written about a matter that (despite my poor attempt at emulating a tabloid sub-editor) is a matter of real concern for many.  I’m told that there is:

A story in Queensland [that] has prompted a significant amount of debate and discussion on social media sites. The story is here:

http://www.chinchillanews.com.au/news/ken-takes-ultimatum-on-chin/2637886/

An auxiliary firefighter (same as retained in NSW) refused to shave his goatee beard and was given a couple of options – shave it and stay, move to non operational duties, or leave. He chose to leave. Problem is, he has been a fireman for 18 years and has never been disciplined for having facial hair. It’s only been recently that someone in the hierarchy has pursued and implemented the relevant uniform code. The uniform code for QFES firefighters is also very clear and is a requirement that firefighters adhere to this code when they sign on the dotted line. It’s in the application pack.

Now my understanding of the AS/NZ standard for breathing apparatus is that a person ‘should’ be shaved, not ‘must’. Should being a recommendation, must being a requirement. I know of military and mining industry folk who wear full beards and have adequate protection when wearing positive pressure breathing apparatus. That I have no qualms about.

My question in relation to facial hair stems from a hypothetical. The QFES has implemented negative pressure masks for permanent and auxiliary firefighters to wear at grass fires. To wear a NP mask, you need to be clean shaven and do a ‘face fit test’ annually. There is talk that these masks will then filter down to the rural firefighters. As you are probably aware, there are some significant and magnificent beards amongst the rural firefighting fraternity! Which leads to my question:

If the QFES/RFSQ (Queensland Fire and Emergency Services/Rural Fire Service Queensland) introduce negative pressure masks for rural firefighters, and the rurals refuse to shave beards/wear NP masks, can they stay on the fireground? What happens if medical complications arise in the future because they didn’t wear supplied PPE? Will the ‘we’ve always done it this way’ argument affect fireground managers and potentially reduce the volunteer workforce?

For a related post, see ‘The use of breathing apparatus at car fires – NSW RFS’ (February 17, 2015).

This issue is all about work health and safety.  The Work Health and Safety Act 2011 (Qld) says that a PCBU (a person conducting a business or undertaking) ‘must ensure, so far as is reasonably practicable, the health and safety of— (a) workers …’ (s 19(1)).   We know that the term ‘worker’ includes a volunteer (s 7) so it does not matter, in this context, whether the fire fighters are full time, auxiliary or volunteer.

The issue is what is ‘reasonably practicable’?   Section 18 tells us that:

… reasonably practicable… means that which is … reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

(a) the likelihood of the hazard or the risk concerned occurring; and

(b) the degree of harm that might result from the hazard or the risk; and

(c) what the person concerned knows, or ought reasonably to know, about—

(i) the hazard or the risk; and

(ii) ways of eliminating or minimising the risk; and

(d) the availability and suitability of ways to eliminate or minimise the risk; and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

I assume the relevant risk is the inhalation of chemicals and gases that are not good for firefighter health.  What is the likelihood of that occurring?  I imagine it’s almost 100% but I suppose it may be less in a grass fire than a structural or car fire where there are all sorts of plastics and petro-chemicals to be burned.   How much harm is likely to happen?  Again I can’t say but let me also assume that the harm is ‘less in a grass fire than a structural or car fire where there are all sorts of plastics and petro-chemicals to be burned’.  I think a fire service, whether it’s the rural fire brigades or the QFES (given they are all under the same central administration; see ‘Status of Queensland Rural Fire Brigades’ (September 10, 2014) and ‘Passage of the Public Safety Business Agency Bill 2014 (Qld)’ (May 8, 2014)) should have pretty good knowledge about the risks that firefighters face when fighting fires (see Bushfire CRC ‘Operational Readiness Of Rural Firefighters Air Toxics’ [sic]).

Paragraphs (d) and (e) raise the relevant issues.  Presumably availability of ways to eliminate or minimise the risk changes over time with better science, innovation and changing costs of PPE.  In the history of rural fire fighting, when brigades were local groups turning out in cotton overalls with a beater and spray pack, there was probably no such thing as effective and affordable respiratory protection.  In 2015 I assume that ‘negative pressure masks’ are reasonably cheap and effective, hence the decision to require their use by auxiliary and permanent fire fighters.  So let us assume they are available and suitable.  Then, and only then, can the PCBU consider the cost.   I would suggest that cost is not limited to just money but the cost to the whole mission.    Things may cost by not allowing people to do their job in a timely manner or in the case by discouraging volunteers.  Losing a firefighter with 18 years’ experience is no doubt a cost.

That’s not however the answer, that’s just me going through the issues raised by the legislation.  I’m not the decision maker here; at first instance the PCBU has to think about those things.  If it is determined that the risk is high, the harm that might be suffered is great, the mask is available and suitable and taking into account all the costs, that the cost is not grossly disproportionate to the risk, then the PCBU should require that the masks are worn by volunteers at grass fires.

In coming to a conclusion about each of the factors listed and in particular (e), ie the costs and in deciding what changes to the workplace are required, the PCBU is required to consult with the workers (including volunteers) (Work Health and Safety Act 2011 (Qld) s 47).    As part of that consultation process ‘workers be given a reasonable opportunity— (i) to express their views…; and (ii) to contribute to the decision-making process’ (s 48(1)(b)).   It follows that volunteer fire fighters should be given a chance to do that, to express their views on the use of these masks and to contribute to the process by which the PCBU determines whether or not to require their use at grass fires.

Apart from asking for those views, the PCBU must ensure ‘that the views of workers are taken into account…’ (s 48(1)(c)).  But being given the chance to participate in the decision making process and having one’s views considered does not mean that the PCBU will make a decision that is in accord with those views.    For example the volunteer fire fighters may well express the view that they don’t want to shave their beard, and that the risk is not too great and the cost is too high.  The PCBU has to consider that but may still determine that the science and the manufacturer’s recommendations mean that, all things considered, the use of the negative pressure masks is to be mandated.

Once the decision is made it is the duty of everyone, including volunteers, to ‘(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and (d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers’ (s 28).  That is if the WHS policy directive is that negative pressure masks are to be worn, then a worker fails to meet his or her WHS obligations if they refuse to comply with that policy direction.  One would also expect senior officers to direct the person not to enter an area of danger if they are not wearing the PPE as one would also expect them to do if a firefighter turned out in shorts or thongs.

What happens if medical complications arise in the future because they didn’t wear supplied PPE?  Firefighters are entitled to compensation if they are injured in the course of their duties and there is a move to have presumptive legislation to the effect that certain cancers will be deemed to have been caused by fire fighting (see ‘Landmark legislation to protect [Queensland] firefighters’ (December 11, 2014)).  These schemes are all ‘no fault’ so if a fire fighter is injured due to their failure to wear the PPE they would still get medical care and compensation.

The consequence of failing to comply with a WHS duty is not a loss of compensation rights, but it is a criminal offence.   A volunteer is only required to meet the duties set out in ss 28 and 29 (see s 34).  The obligation to comply with a WHS policy is a duty in s 28 so a volunteer who fails to ‘co-operate with any reasonable policy or procedure’ or ‘comply … with any reasonable instruction’ could be prosecuted.    Failure to comply with a health and safety duty in circumstances that exposes ‘an individual to a risk of … serious injury or illness’ is a category 2 offence (s 32). (It does not matter that the individual being ‘exposed’ is also the individual who is failing to comply with his or her duty).   If there is failure to comply with a duty but no ‘risk of death or serious injury or illness’ then it is a category 3 offence (s 33).  For an individual the maximum penalty for a category 2 offence is a fine of $170 775 and for a category 1 offence it’s a fine of $56,925 (Work Health and Safety Act 2011 (Qld) ss 32 and 33; Penalties and Sentences Regulation 2005 (Qld) cl 2B).

Of course no-one is going to be prosecuted and fine that amount for not wearing a face mask. One would expect many steps before then starting with counselling from senior officers to explain the policy and reasoning behind it; offers of work that does not involve being an active fire fighter; perhaps a direction from a relevant work health and safety inspector etc.  All steps long before anyone decided to commence a prosecution; but the option is there.

Finally “Will the ‘we’ve always done it this way’ argument affect fireground managers and potentially reduce the volunteer workforce?”  That I can’t say. That is not a question for a lawyer but for fire fighters.  Clearly it affected the fire fighter the subject of the initial story who resigned.  Will others take the same course? I don’t know.

Conclusion

The critical question I was asked was ‘If the QFES/RFSQ (Queensland Fire and Emergency Services/Rural Fire Service Queensland) introduce negative pressure masks for rural firefighters, and the rurals refuse to shave beards/wear NP masks, can they stay on the fireground?’

The answer is that

  • if the QFES/RFSQ determine that wearing these masks is a reasonable response to a risk to health and safety, taking into account all the factors listed in the Work Health and Safety Act 2011 (Qld) and having consulted with the workforce; and
  • if, after considering all those matters, they determine that the use of the masks is to be mandatory, just like wearing boots and other PPE; and
  • if they determine as a matter of policy that a firefighter who is not wearing the mask is not to be on the fireground ror is not to turn out then:

A firefighter who refuses to shave his beard or wear the mask could be directed or required to leave the fireground (Fire and Emergency Services Act 1990 (Qld) ss 53 and 83).


Categories: Researchers

The Commonwealth setting terms and conditions of employment for Victorian fire fighters

20 May, 2015 - 16:31

A correspondent has written and drawn my attention to a decision of the Fair Work Commission (a Commonwealth body) intervening in an industrial issue involving the Metropolitan Fire Brigade in Melbourne – see the summary by Baker and McKenzie, Lawyers,  ‘FWC grants interim orders to halt disciplinary process’ (19 May 2015).

My correspondent asks:

I would have thought that the FWC under the Commonwealth Fair Work … Act does NOT have constitutional coverage of employees of the Fire service?

So how is that decision of the FWC possible?

Does it apply to all states?

What emergency service workers OR volunteers can’t apply to the FWC?

One the one hand the answer is simple, but on another it’s too complex and outside my field.

The short answer is that the Australian Constitution, s 51(xxxvii), allows states to refer matters that would otherwise be matters for state law, to the Commonwealth.  Victoria, by virtue of the Fair Work (Commonwealth Powers) Act 2009 (Vic), has referred its industrial relations powers to the Commonwealth to allow for the development of a national industrial relations scheme.

In my post ‘Industrial Relations and asking the CFA to stick to its bargain’ (January 26, 2015) I refer there to the ‘Melbourne Principle’, that is the Commonwealth cannot make laws that determine a state’s ‘…  right to determine the number and identity of the persons whom it wishes to employ, the term of appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss with or without notice from its employment on redundancy grounds’ but that won’t limit the Commonwealth where the state has referred the relevant powers.  In this case the Commonwealth has given the Commonwealth the power to makes laws with respect to the ‘terms and conditions of appointment’ of State employees, but not ‘matters pertaining to the number, identity or appointment … of employees in the public sector who are not law enforcement officers’ (Fair Work (Commonwealth Powers) Act 2009 (Vic) s 5(1)).

I would understand from the report by Baker and McKenzie that this case, United Firefighters Union of Australia v Metropolitan Fire & Emergency Services Board [2015] FWC 3263, was about the ‘terms and conditions’ of appointment and so is part of the referral to the Commonwealth.   I do note that in the judgment, the jurisdiction of the Commission is not discussed.   We can infer that neither party thought that was an issue and everyone accepted the FWC had the necessary jurisdiction.

With respect to ‘What emergency service workers OR volunteers can’t apply to the FWC?’ I can say with a high degree of confidence that volunteers couldn’t go to the Fair Work Commission as they are not employees.   The inclusion of volunteers into the definition of employee in modern work health and safety law does not change the fact that they are not employees – see ‘What does it mean to be a ‘worker’’ (February 19, 2015).

That’s the easy part.  What’s hard is that employment law is a specialised area and to look beyond the judgement to fully understand the effect of the Fair Work (Commonwealth Powers) Act 2009 (Vic) and to try to answer the question ‘Does it apply to all states?’ (Which I think it does; I think all states have made similar referrals) and ‘What emergency service workers … can’t apply to the FWC?’ would take me so far out of my area of comfort that I couldn’t do those questions justice, so I decline to answer them.


Categories: Researchers