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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.
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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

American Good Samaritan protected by Ohio Statute

20 May, 2015 - 11:41

Whilst not a binding precedent in Australia, the case of Carter v Reese  2014-Ohio-5395 will, I’m sure, be of interest to readers of this blog, particularly following the discussion in Good Samaritan legislation and scope of practice (March 27, 2015).

The plaintiff, Carter was a truck driver who become pinned between his truck and a loading dock.  He yelled and banged on the doors of the loading dock in order to get someone’s attention but reported that he was not in pain; the inference is that although he was trapped, he was not injured.   A man approached and offered to help.  Carter “said to him, “get in my truck, move it forward about a foot, * * * but whatever you do, don’t put it in reverse”.”   The Good Samaritan, Reese, attempted to move the vehicle forward but did in fact move it backward, crushing Carter’s leg.  Reese range 911 and then left the scene.  When an ambulance arrived another person moved the truck and Carter was transported to hospital.  The result of the incident was that Carter’s leg was amputated.

Ultimately Reese was identified as the Good Samaritan and Carter and his wife sued over his injuries.  The Butler County Common Pleas Court dismissed the case finding that Reese was protected by the Ohio Good Samaritan legislation.  Carter appealed to the Ohio Court of Appeals.

The relevant part of the Ohio Good Samaritan legislation says:

No person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency … for acts performed at the scene of such emergency, unless such acts constitute willful or wanton misconduct.

The plaintiff argued that this act only applied to medical professionals providing assistance at a medical emergency.  When he was trapped, but not injured, this was not a ‘medical emergency’ and so the Act should not apply.  The Court of Appeals (Hendrickson and Piper JJ) agreed; they said (at [15]) that the Act:

… applies to any person, health care professional or otherwise, who administers “emergency care,” medical or otherwise, at the scene of an emergency and who meets the remaining requirements of the statute, e.g., their acts do not constitute willful or wanton misconduct..

The court was satisfied that ‘An emergency clearly exists where a man’s leg is pinned between his truck and a loading dock, yelling so loud for help he is heard across the street’ and that Reese’s ‘actions in trying to move the semi-truck constituted “emergency care”’ ([25]).

The interesting issue is the apparent negligence of Reese.  That is he jumped into the truck and attempted to move it forward even though he later admitted he had no idea how to drive such a vehicle.  Even if we accept, as I think we safely can, that trying to drive a very large tractor/trailer outfit when the driver knows that they don’t know how to operate the truck and that a person is trapped behind it, and therefore very vulnerable should the driver get it wrong is negligent, that was not enough.  The statute moved to shield the Good Samaritan from liability unless there was ‘wilful or wanton misconduct’.   As the Court of Appeals said (at [31]):

… it was not sufficient for appellant to show that appellee was negligent in trying to rescue him once he saw that appellant’s leg was pinned between the semi-truck and the loading dock. Instead, appellant was required to show that appellee acted in a “willful or wanton” manner in trying to rescue him…  there is no evidence in the record to show that there is a genuine issue of material fact on whether appellee’s conduct was willful or wanton.

The Ohio court said (at [32]) ‘wilful misconduct’ is ‘’an intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to safety, or purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury.'”  At [33] they said:

“Wanton misconduct” is more than mere negligence; it is “the failure to exercise any care whatsoever.  Mere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor. Such perversity must be under such conditions that the actor must be conscious that his conduct will in all probability result in injury.”

Ringland PJ dissented and would have held that the statute, when read in context, only protected a person ‘providing emergency medical care’([39]).

The Australian Context

There are some similarities and differences between the US/Ohio and Australian situation.

First Australia has had Good Samaritan legislation since the Voluntary Aid in Emergency Act 1973 (Qld) (now repealed).   My research has never been able to find a case where that legislation, or any of the modern versions, have ever been relied upon.  That is, no Australian Good Samaritan has ever been sued, at least not to the point where a judge got to rule on any issue.    That’s clearly not the case in the US as this case shows, as not only was this Good Samaritan sued but the Court could rely on decisions from other cases to aid them in their interpretation of the statute.  It probably comes as no surprise to Australians that in America Good Samaritans are sued, but in Australia they are not.

Second, when considering whether or not the Act only applied to medical professionals, the Ohio court said (at [14], references omitted):

Every state has enacted some type of Good Samaritan statute.  The scope of the immunity protection provided in a Good Samaritan statute varies from jurisdiction to jurisdiction. The Good Samaritan statutes in a substantial majority of jurisdictions (38) protect any layperson who can meet the statutory requirements. However, a sizeable minority of jurisdictions (14) excludes laypersons from the class of persons protected under their Good Samaritan statutes and extends immunity protection only to certain classes of professionals, including physicians, nurses and emergency medical professionals.

That is also true in Australia.  To rephrase that that statement to put it in the Australian context one would say:

Every state has enacted some type of Good Samaritan statute.  The scope of the immunity protection provided in a Good Samaritan statute varies from jurisdiction to jurisdiction. The Good Samaritan statutes in the majority of jurisdictions (7) protect any layperson who can meet the statutory requirements. However, a minority of jurisdictions (1) … extends immunity protection only to certain classes of professionals, including physicians, nurses and emergency medical professionals.

Every State but Queensland extends protection to anyone (see Civil Laws (Wrongs) Act 2002 (ACT) s 5Civil Liability Act 2002 (NSW) s 57Personal Injuries (Liabilities and Damages) Act (NT) s 8Civil Liability Act 1936 (SA) s 74Civil Liability Act 2002 (Tas) s 35BWrongs Act 1958 (Vic) s 31BCivil Liability Act 2002 (WA) s 5AD).  In Queensland, the Law Reform Act 1995 (Qld) s 16 (which replaced the Voluntary Aid in Emergency Act 1973) extends protection only to medical practitioners, nurses and members of listed organisations only.

Whilst the Australia legislation is, generally intended to apply to the provision of emergency medical care or first aid it could, in most states, be extended to a similar situation.

In the Northern Territory and South Australia, ‘emergency assistance’ means ‘emergency medical assistance’ or ‘any other form of assistance to a person whose life or safety is endangered in a situation of emergency’.   Carter’s life may not have been endangered where he was trapped, but not injured, nor, presumably, was it unsafe for him whilst the truck remained parked as it was.  It was the actions of Reese that were unsafe (given he didn’t know how to operate the truck) and put Carter’s life in danger, but how much can we expect a Good Samaritan to know and judge in these matters? He heard Carter yelling for help and might well have, and reasonably so, concluded that his life was in danger.  The question may arise, one day, whether the law in these jurisdictions requires actual danger or a genuine belief by the Good Samaritan that the person’s life or safety is endangered.

In the Australian Capital Territory, New South Wales, Tasmania and Victoria, a Good Samaritan provides assistance to a person who is, amongst other things, ‘at risk of being injured’ (ACT and NSW) or ‘apparently at risk of death or injury’ (Tas and Vic).   In the issue is whether the person is ‘injured or at risk of being injured’.  I would anticipate that a truck driver, pinned between a wall and his truck, is at ‘risk of being injured’ even if he is not at that time injured.  Again Carter may not have been injured but Reese may have believed he was apparently at risk of injury.  Again the question could arise whether what is required an actual or objective risk, or whether a genuine, good faith belief that the person is at risk is sufficient to trigger the protection.

The Western Australia legislation mirrors the Ohio Act and provides protection for a person ‘at the scene of an emergency’ who assists ‘a person in apparent need of emergency assistance’.   I wold expect a WA court faced with similar facts to find that a person pinned against the wall by their truck is facing an emergency and attempting to move the truck is ‘emergency assistance’.

Finally the Ohio Act extended protection unless there was ‘willful or wanton misconduct’.  The Australian legislation requires that the assistance be delivered ‘in good faith’.  To quote from my earlier post (Good Samaritan legislation and scope of practice (March 27, 2015)):

The key is ‘good faith’. One could argue that undertaking action that you know you are not trained is not ‘good faith’ but I don’t believe that would be the outcome. The key case on good faith is Mid Density Developments Pty Limited v Rockdale Municipal Council [1993] FCA 408. This case involved a question of whether the council acted in good faith when giving advice in relation to a properties flood risk. In the course of their judgment Gummow, Hill and Drummond JJ said (at [24]):

His Honour found that the statutory concept of “good faith” in the performance of the functions in question, included two criteria. The first was that the act be done bona fide and not maliciously or to achieve an ulterior purpose. The second was that there be “a genuine attempt to perform the function correctly, that is to say that the function should not be performed without caring whether or not it be properly performed”.

With respect to the section in question they went on to say (at [34]) ‘The statutory concept of “good faith” with which the legislation in this case is concerned calls for more than honest ineptitude.’

Applying that reasoning to the good Samaritan provisions requires that the intervener is acting ‘not maliciously or to achieve an ulterior purpose’ so they’re acting to assist the injured person, not to steal their wallet or do them harm and it’s a genuine attempt not to harm the person, ie to do the right thing. So a person who is confident in the use of oxygen and who genuinely believes that oxygen is warranted in the best interest and to avert harm to the patient is acting in good faith when they administer that oxygen; or use the person’s epi-pen or help them with their ventolin, or do CPR or use an automatic defibrillator. The person who says ‘I always wanted to do a tracheostomy using a Swiss army knife and a pen (as in M*A*S*H Season 5 Episode 8, ‘Mulcahy’s War’) and now I can because I can’t be sued’ is not acting in good faith.

I would extend my reasoning to think that a person, faced with a man trapped between a loading dock and a trailer who is calling loudly for help, acts in ‘good faith’ when he or she tries to move the truck in response to that call for help and is doing so out of a genuine desire to relieve the trapped man’s distress.   As a famous American judge said (albeit in another context) ‘“The cry of distress is the summons to relief…’ (Wagner v International Railway Co 133 NE 437 (1921), 437-438 (Cardozo J)).    I wold expect, in Australia, that Carter’s ‘cry of distress’ summonsed Reese to action and even though his response was worse than ineffective, his actions were taken ‘in good faith’ just as the Ohio court found that they were not ‘wilful or wanton misconduct’.

The crucial lesson

In my earlier post (Good Samaritan legislation and scope of practice (March 27, 2015)) I was responding to a statement to the effect of ‘A person would receive no protections under the Good Samaritan Act if they go “beyond their qualifications’.   I argued there that this was not the law.  This case is an example that confirms that position.  Reese had no qualifications or experience in driving a truck, a prudent person may well have considered that moving a prime mover connected to a trailer that was pinning a man was something that they should not reasonably do.  Reese however, saw Carter’s distress and wanted to help.  He went beyond his qualifications and he made the situation much worse, but he was a Good Samaritan and exempt from liability.

If we consider just the idea of who or what is a Good Samaritan, there are differences between the American and Australian law, and there is room for an Australian judge to take a similar view to Ringland PJ, and conclude that the Good Samaritan legislation really only applies when providing medical care (and see here my own text, Emergency Law (4th ed, 2013) pp 70-74).  Even so I would expect that the Australian Acts (except in Queensland) could be applied to a similar situation.   That is the point of them, to encourage people to act without fear of liability.

Whether that is a good thing or not is debatable, and we can remember that the Ipp Reivew of the Law of Negligence recommended against Good Samaritan legislation on the basis that ‘A complete exemption from liability for rendering assistance in an emergency would tip the scales of personal responsibility too heavily in favour of interveners and against the interests of those requiring assistance’ (Ipp Review of the Law of Negligence, Final Report (Commonwealth of Australia, 2002), [7.21]-[7.24]) .

Some may think that this is an example where the law moved ‘too heavily in favour of interveners [Reese] and against the interests of those requiring assistance [Carter]’.

Motor Accidents Compensation

If that was all there was too the situation I would leave my comment there but there is in fact one crucial issue that is relevant here.  None of the Australia Good Samaritan provisions apply in the case of a motor vehicle accident.  That is because, in Australia, we have compulsory third party (CTP) insurance schemes (Road Transport (Third-Party Insurance) Act 2008 (ACT); Motor Accidents Act 1999 (NSW); Motor Accidents (Compensation) Act (NT); Motor Accidents Insurance Act 1994 (Qld); Motor Vehicles Act 1959 (SA) Part 4; Motor Accidents (Liabilities and Compensation) Act 1973 (Tas); Transport Accident Act 1986 (Vic) and Motor Vehicle (Third Party Insurance) Act 1943 (WA)).

Every vehicle (even unregistered vehicles) are covered by the CTP scheme to ensure that people who are injured in a motor vehicle accident receive care.  In theory they have to claim against the driver at fault but the CTP insurance indemnifies the driver so it is the insurer and not the driver who must pay.  If this case occurred in Australia, Reese would be indemnified but as Carter was injured due to the negligent operation of the truck, he would be entitled to compensation under the relevant jurisdiction’s motor accidents scheme.    As there is no personal liability attached to the driver at fault (unless the vehicle is unregistered or stolen, in which case the CTP insurer can seek to recover the compensation paid from the driver at fault) there is no need to extend Good Samaritan provisions to drivers.  To do so would deny people access to the pool of funds that we all contribute to in order to pay for the inevitable road toll .

Conclusion

I reported on this case as I thought it would interest the readership and it does give an example of the application of the Good Samaritan legislation.  The case demonstrates that mere negligence by a Good Samaritan, or going beyond one’s training, does not exclude Good Samaritan protection.  I think that is true in Australia as it is in Ohio.

If we were just looking at the terms of the Good Samaritan statutes I would anticipate an Australian Court could reach a conclusion similar to the Ohio court.   In that sense the case gives some guidance on the interpretation of the legislation and is relevant in considering cases where Good Samaritans are tempted to try to help but what they offer is beyond their training, competence and experience.

There is however one particular aspect of Australian Good Samaritan law that would be relevant if these facts happened in Australia, and that is the Good Samaritan laws don’t apply when the injury is caused by the negligent operation of a motor vehicle (as happened in this case).   In Australia, the CTP scheme exists to compensate those injured in a motor vehicle accident.  If this case happened in Australia Carter would be able to sue Reese, but it would be the CTP insurer that would be liable to meet the costs of running the case and paying the damages.  In Australia, extending Good Samaritan protection to Reese, would deny Carter’s access to the CTP pool and would give no benefit to Reese as he will be indemnified in any event.


Categories: Researchers

The NSW RFS, a U-Turn and the Pacific Highway

18 May, 2015 - 23:41

An RFS volunteer says:

Late last year our truck was responding to a car accident on the Pacific Highway in NSW.   The accident was on the other side of the road. Whilst turning in the emergency vehicle only crossover on the highway a car ran up the back of us.   Our driver was charged with making a u-turn and not giving way to another vehicle. Our truck was in the right hand lane for approx 400m and the car ran up the back of us. We can’t find any information on the use of these turn around points on the highway. Not using these means we travel sometimes an extra 5 km each way to reach a car accident.

It’s hard to comment on these matters if they are the subject of legal proceedings and I do not know whether the driver has paid the infringement notice or is defending the matter in court. I only have this version of the facts to go on and I will be making assumptions.   What follows cannot be taken as specific legal advice on this particular matter, but general observations on the relevant road rules. For specific advice the driver should approach the RFS or a solicitor of his or her choice.

Assumptions

First I assume that I am not commenting on the fatal accident that occurred in 2013 (see ‘Tragic outcome from RFS response‘ (April 4, 2013)).  That event has quite different facts (at least as reported at the time) and and given the outcome of that event, both in terms of the serious injuries and death of those involved and the prosecution of the driver with serious offences, it would not be appropriate for me to comment or for anyone to base their understanding of the legal position on a blog written without all the relevant information.

Second I assume that this event occurred in an area where there is roadway that passes between both the north and south carriage way and there are signs that say words to the effect of ‘No U Turn, police, NRMA and emergency vehicles excepted’. My correspondent has not told me that, but I am familiar with the highway and have seen those signs.

The Road Rules 2014 (NSW)

The Road Rules 2014 provide for U-turns in rules 37-42.   Rule 39 says that a driver ‘must not make a U-turn at a break in a dividing strip on a road if there is a no U-turn sign at the break in the dividing strip’.   According to the Road Rules, Schedule 3, a  ‘No U-turn’ sign looks like this:

A sign applies to the driver of a vehicle unless the ‘information on or with the device expressly indicates that it does not apply to the person’ (Road Rules 2014 (NSW) r 339(2) and Dictionary, definition of ‘Traffic Control Device’). So a sign that says ‘No U Turn’ applies to all drivers unless it expressly indicates it does not apply. It follows that a sign that says ‘No U Turn, police, NRMA and emergency vehicles excepted’ can be taken on its face. It’s an offence to make a U-turn unless the driver is driving a police, NRMA or emergency vehicle.

We know that an emergency vehicle is a vehicle driven by an emergency worker in the course of his or her duties as an emergency worker and an emergency worker includes ‘a member of a fire or rescue service operated by a NSW Government agency … providing transport in the course of an emergency’. What is an emergency is not defined but I think we can take is as axiomatic that a member of the RFS, driving an RFS appliance, in response to a call out to a motor vehicle accident is driving in the course of his or her duties as an emergency worker and so is driving an emergency vehicle, in which case the ‘No U-turn’ sign does not apply.

Even if the ‘No U-turn’ sign did apply, as the driver of an emergency vehicle the driver of an RFS appliance would have the normal exemption; that is the rule that says one cannot do a U-turn in the face of a ‘No U-turn’ sign does not apply if the driver is taking reasonable care, it is reasonable that rule does not apply and the vehicle is displaying red or blue flashing lights or sounding an alarm (Road Rules 2014 (NSW) r 306).

A driver making a U-turn must do so ‘without unreasonably obstructing the free movement of traffic’ and must ‘give way to all vehicles and pedestrians’ (Road Rules 2014 (NSW) rr 37 and 38). ‘Give way’ means, amongst other things, ‘slow down and, if necessary, stop to avoid a collision’ (Road Rules 2014 (NSW) Dictionary, definition of ‘Give way’).

So we have this situation, an RFS appliance can make a U-turn either because the prohibition specifically does not apply to them or by virtue of r 306.   Other cars should give way to them and allow them to complete the U-turn but they would not be justified in simply pulling in front of oncoming vehicles without first making sure those other driver’s had indeed, given way to them.

Conclusion

My correspondent said ‘We can’t find any information on the use of these turn around points on the highway’ and asked for clarification of these. Limiting myself to just question:

  1. If the signs say they do not apply to an emergency vehicle they can be taken on their face. The driver of an emergency vehicle does not commit an offence under rule 39 if he or she makes a U-Turn in the face of a sign that says emergency vehicles are exempt.
  2. If the sign does not say emergency vehicles are exempt, they are by virtue of rule 306 provided they are taking reasonable care and have their beacons or siren activated.

Categories: Researchers

Making way for emergency vehicles

18 May, 2015 - 13:01

I suspect the answer to this question will come as a surprise to many.  A correspondent writes:

… yet another question about road rules and emergency vehicles. Time to whip out the trusted rule 306 again. I was reading through a series of posts on the QLD Police website, wherein police answer common questions about the law. A link to the post in question is below.

http://mypolice.qld.gov.au/bundaberg/2015/03/16/myth-buster-emergency-vehicles/

In the post, they state that in order to give way to an emergency vehicle (in an emergency situation), a driver may drive through a red light (if safe). I was of the understanding that this was not the case, and I’m sure I remember several cases a few years ago, in which someone did this, was caught by a red light camera, and had no choice but to pay the fine.

I imagine you have already answered such questions before, but any guidance you could provide would be much appreciated. It scares me that even in posts as recent as this year, such instructions appear on official websites.

It’s true that the Bundaberg police say:

Any emergency service vehicle with emergency lights and/or sirens operating have priority right of way under ALL circumstances.

If behind you, you MUST pull over and allow the emergency vehicle room to pass. You may drive onto the wrong side of the road or drive through a red traffic light to get out of the way of an emergency vehicle if it is safe to do so.

They are not alone; the Queensland Government also says ‘You may drive onto the wrong side of the road or drive through a red traffic light to get out of the way of an emergency vehicle if it is safe to do so’ (https://www.qld.gov.au/transport/safety/rules/emergency-vehicles/index.html).

The Western Australia Department of Fire and Emergency Services, on the other hand, say ‘Remember, you cannot break the law to give way to an emergency vehicle, for example, driving through a red light (http://www.dfes.wa.gov.au/safetyinformation/Pages/givewaytoemergencyvehicles.aspx).  The National Roads and Motorists Association (the NRMA) agree, they say ‘Remember, you are required to abide by road rules at all times (http://www.mynrma.com.au/blog/2013/09/26/tips-for-assisting-emergency-vehicles/).

The Australian Federal Police do not commit themselves one way or the other (http://www.police.act.gov.au/roads-and-traffic/share-the-road/emergency%20vehicles), neither do the police in Townsville (also in Queensland) (http://mypolice.qld.gov.au/townsville/2013/05/22/keeping-clear-of-police-and-emergency-vehicles/).

So what’s the correct answer? The Australian Road Rules are meant to be nationally consistent, but there are discrepancies so I’m going to refer to both the Queensland and West Australian versions.

The first relevant rule says that the driver of an emergency vehicle is exempt from the road rules provided they are taking reasonable care and sounding a sire or displaying, in Queensland a red flashing light, and in Western Australia a blue or red flashing light (Transport Operations (Road Use Management–Road Rules) Regulation 1999 (Qld) s 306; Road Traffic Code 2000 (WA) r 281).   In neither jurisdiction does that exemption apply to everyone and for obvious reasons.  An emergency service vehicle gets the exemption in part because it is fitted with emergency warning devices and, hopefully, hi-vis markings (see https://ambulancevisibilityblog.wordpress.com/).   The siren is meant to draw people’s attention to the presence of a vehicle nearby and the lights and markings draw attention to where it is.  A person who hears a siren may be looking for an emergency vehicle and will not expect a private vehicle to move into their path.   So rule the Queensland rule 306, Western Australia rule 281 provide an exemption for the driver of an emergency vehicle only.

So what is the obligation upon other road users when an emergency vehicle approaches them? In Western Australia they must ‘give way to, and make every reasonable effort to give a clear and uninterrupted passage to, every 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’ (Road Traffic Code 2000 (WA) r 60).

In Queensland it is different.  In Queensland ‘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).

The differences are substantial. The Western Australia law says the driver must make a ‘reasonable effort’.  What is reasonable depends upon all the circumstances, and must consider other relevant laws.   In WA a driver facing a red traffic light ‘shall stop as near as practicable to but before reaching the nearest appropriate traffic‑control signal and shall not proceed beyond the signal’ (Road Traffic Code 2000 (WA) r 40).     Asking what is reasonable must take into account that the driver must not proceed beyond the signal.  It would not be reasonable to pass the red signal nor would it be reasonable to expect the driver to do so.

In Queensland the obligation upon a driver to make way for an emergency vehicle is more assertive.  In that state the driver ‘must move out of the path of the vehicle’ (emphasis added).   As in Western Australia, a Queensland driver facing a red light ‘must stop’ at various places identified in the regulation depending on the type of intersection, and must not proceed until the signal changes to ‘green or flashing yellow’ (Transport Operations (Road Use Management–Road Rules) Regulation 1999 (Qld) s 56).    So now there are two conflicting provisions, the driver ‘must’ move out of the path of the emergency vehicle but must stop at the red light.   How is that conflict resolved?

One website, ‘Practical Motoring’, says (at https://practicalmotoring.com.au/car-advice/emergency-vehicle-approaches-behind/):

The Australian Road Rules are quite specific about your responsibility when faced with an emergency vehicle sounding its alarm or flashing red and blue lights: you must move out of its way as soon as it is safe to do so. This regulation overrules any other road rule, so if your only option is to enter the intersection through a red light, that is what you must do.

If the lawmakers intended that ‘This regulation overrules any other road rule’ they would say so.  For example in Western Australia ‘Every pedestrian and driver shall obey the signal by hand or the reasonable oral direction given by a police officer’ or other authorised officer (Road Traffic Code 2000 (WA) r 272).  What if the police officer directs the driver to do something that is contrary to some other provision of the regulations? That is provided for in regulation 272(2) which says ‘It is a defence to any prosecution notice of a breach of these regulations that the accused was, at the time of the alleged offence, acting in conformity with a signal or direction given under subregulation (1)’.   This is an example where the lawmakers have determined that the obligation to obey police does ‘overrule’ the other road rules, and that is clearly stated. If the obligation to make way for emergency vehicles was to ‘overrule’ the other road rules, then some similar statement would also appear in the Road Traffic Code 2000 (WA) r 60, but it doesn’t.

In Queensland it is different.  Remember that the Transport Operations (Road Use Management–Road Rules) Regulation 1999 (Qld) s 78(2) says a driver ‘must’ move out of the path of an emergency vehicle, but what if the only way to do that is to breach the rules that say one must stop at a red light or keep left?  Section 78(3) says ‘This section applies to the driver despite any other section of this regulation’ that is in Queensland, the obligation to make way for an emergency vehicle does appear to ‘overrule’ the other road rules.

So what’s the correct answer?  The advice that ‘You may drive onto the wrong side of the road or drive through a red traffic light to get out of the way of an emergency vehicle if it is safe to do so’ is correct in Queensland, but not in Western Australia.

In fact Western Australia seems to be the exception because the law is in the same terms in Queensland and in:

  • the Australian Capital Territory (‘Australian Road Rules – February 2012’ cl 78, incorporated into ACT Law by the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), s 6);
  • New South Wales (Road Rules 2014 (NSW), r 78);
  • the Northern Territory (Traffic Regulations (NT), Schedule 3, cl 78);
  • South Australia (Australian Road Rules (SA) r 78);
  • Tasmania (Road Rules 2009 (Tas) r 78); and
  • Victoria (Road Safety Road Rules 2009 (Vic) r 78).

And what of the NRMA’s advice that ‘you are required to abide by road rules at all times’ (http://www.mynrma.com.au/blog/2013/09/26/tips-for-assisting-emergency-vehicles/)?  Well that’s true, but rule 78 is one of those road rules, so making way for an emergency vehicle is  abiding by the road rules.

Of course it’s never that simple.  As they say on ‘Practical Motoring’

Of course, with so many intersections observed by “safety” cameras and red light cameras, this may not be as simple as it appears. And cameras are machines, so they won’t take the various circumstances into account …

If a driver does enter an intersection with a red light camera they could expect to receive a traffic infringement notice as the officer reviewing the photo probably won’t see the emergency vehicle and he or she may also take a different view on whether the driver’s actions were ‘safe’.   The driver would need to write to police asking them to withdraw the notice and if that fails, elect to take the matter to court and argue the issue before a Magistrate.  That, in turn, may require that the driver makes inquiries with the relevant emergency service to confirm that they had a vehicle proceeding at that intersection at that time and in an extreme case, the driver may want to subpoena the driver of the emergency vehicle to confirm that the actions taken were safe.    At that point one might decide it’s just easier and quicker to pay the ticket.

If a driver does enter an intersection or cross to the wrong side of the road and have an accident then it is axiomatic that they did not do so when they could ‘do so safely’.  They could expect, at least, a traffic infringement notice.    Should someone be killed or injured they could expect to get charged with a more serious offence eg ‘Dangerous operation of a vehicle’ (Criminal Code (Qld) s 328A).  Equally if they are involved in a collision the other driver, or their insurer, would no doubt look to the driver-at-fault’s insurer with all the implications that has for the no-claim bonus and next year’s premium.  The fact that the driver was making way for an emergency vehicle will not mean the accident was not their fault if they traveled through a red light or onto the wrong side of the road.

Fundamentally the clause allows the police to choose not to issue a ticket and be able to justify their action according to law but it does put a very large burden on the driver who, without training and without emergency warning devices, must make a quick and potentially very dangerous call.   The clause may allow, even require, a driver to enter an intersection against a red light or cross to the wrong side of the road, but they do so at their own risk.


Categories: Researchers

Trends in Australian Wildfire Litigation

14 May, 2015 - 12:57

I recently (3 May 2015) had the privilege to deliver the opening keynote address at the 9th Wildland Fire Litigation Conference in Monterey, California.  My theme was ‘Trends in Australian Wildfire Litigation’.   A correspondent wrote and asked if I could make that presentation available via this site, which I’m happy to do.  So if you’re interested you can access

  • the powerpoint slides; and
  • an audio recording (streaming mp3), with the introduction and Q&A session deleted.  I deleted these as you couldn’t hear the other speakers and even if you could, I didn’t have their permission to record them and to publish their input.

Apart from this conference I also attended the Learning from Unintended Consequences course hosted by the National Advanced Fire & Resource Institute and then visited the Wildland Fire Lessons Learned Centre.  During these visits I was able to interview a number of key players who have been instrumental in shifting the US Forest Service to a learning organisation that is focused on learning from, rather than blaming for, unintended consequences.  The lessons learned by me, and insights shared, will continue to inform our research on improving the lessons learning process in Australia.

I hope that is of some interest and I thank the Bushfire and Natural Hazards CRC for their assistance in funding this trip and our ongoing research.


Categories: Researchers

NSW Paramedics treating a person on a Commonwealth Place

13 May, 2015 - 15:05

This question comes from a person working with NSW Ambulance.  My correspondent writes:

Recently a crew was called to a federal government detention facility, to attend an unwell individual with a non-English speaking background and a well-known mental health history to the staff. The patient was having a psychotic episode and was unable to consent to treatment (although compliant to be loaded into the ambulance). NSW Police Force were requested to attend but refused as they have no jurisdiction to section or schedule a patient on commonwealth property. There was no approved Medical Officer onsite that could schedule the Patient and the contract security staff were unwilling (nor should they need to as they have no medical training) to authorise treatment. In the case of the patient requiring to be chemically restrained and transported, would this be considered assault under a federal law? The state law was well known to the attending paramedics but they were reluctant to treat for fear of legal ramifications. Secondly does a NSW Paramedic have the authority to schedule a patient in a commonwealth run facility? I have not been able to find an answer from anywhere and every NSW Ambulance employee I have asked have given a different answer.

Any clarification on this issue would be greatly appreciated.

For an answer to a related question, dealing with a response by the RFS, see Responding onto defence areas (June 1, 2014).

When we’re told the person is in a ‘federal government detention facility’ I’ll assume that is a detention centre run for the purposes of the Migration Act 1958 (Cth).   I will assume, without verifying it, that the detention centre is a Commonwealth place for the purposes of the Commonwealth Places (Application of Laws) Act 1970 (Cth).  That Act says (at s 4(14)):

Without limiting the effect of any other law of the Commonwealth, it is declared that the powers of a person under the law of a State may be exercised in that State in respect of an act done in that State notwithstanding that the act was done in or in relation to a Commonwealth place and the provisions of the laws of the State have effect in relation to anything done by a person in the exercise of a power referred to in this subsection.

In essence that says that State laws apply on Commonwealth places in that state.  This removes the need for the Commonwealth to write laws that equate to all the state matters to apply on their premises.    This will be true unless there is a specific, inconsistent Commonwealth law in which case the Commonwealth law will prevail (Australian Constitution s 109.  See also the opening words of s 4(14), ie the section does not limit ‘the effect of any other law of the Commonwealth’ so if there was another law of the Commonwealth that limited the ability of someone to exercise a power under State law, that would apply – it would not be limited – and the state law would be appropriately restricted to allow the Commonwealth law to apply in accordance with its terms).

The complication here is that the person is in detention and so not at liberty and their consent may not be relevant.  The Migration Regulations 1994 (Cth) provide that the Secretary of the Department can consent to medical treatment for detainees and any treatment that is then given is deemed to have been given with their consent (reg 5.35).   That regulation is not really applicable and is intended to give the Secretary the power to deliver ‘nourishment and fluids’ (ie to deal with those on a hunger strike) rather than emergency care or emergency mental health care.  That is the only provision in the Act or Regulations dealing with medical care so there is no other relevant Commonwealth law to apply here.

It follows that the NSW Police could exercise their authority under the Mental Health Act 2007 (NSW) (s 21) as could the paramedics (s 20).   If that were not the case the authority of the paramedics to carry scheduled drugs would lapse on a commonwealth place but clearly they continue to be, and be allowed to act as, NSW Ambulance Paramedics.

Without seeing the extent of their authority and any relevant delegation from the Minister I can’t say whether the security staff would have any authority to authorise treatment.

As for the common law of necessity – which says that where a person is unable to consent to treatment, treatment that is reasonably necessary and in their best interests may be given – that forms part of the common law of Australia so is as applicable on Commonwealth land as it is on private or state owned land.

Conclusion

The fact that the person was on a commonwealth place is irrelevant.   By virtue of the law Commonwealth Places (Application of Laws) Act 1970 (Cth) s 4(14) the powers of the paramedics under both statute law (in this case the Mental Health Act 2007 (NSW) s 21) and common law continue to apply unless there is an inconsistent Commonwealth law.  I have not been able to identify any relevant, inconsistent Commonwealth law.


Categories: Researchers

Why dangerous goods placards ARE NOT required on an ambulance!

13 May, 2015 - 11:45

This is an update on the post originally published on 12 May (‘Is a dangerous goods placard required for an ambulance?‘).  Although I’ve changed my mind about the correct answer, I’ll leave that post ‘online’ so the history of this discussion can be seen. I write this update because of the useful discussion that has followed that original post that has given me more relevant facts and guidance.

First let me say I stand by my original conclusion, if the ambulance is carrying more than 1000 litres of compressed oxygen then placarding is required.

The complexity is how you calculate the relevant volume. It also shows, as explained in my original post, that the regulator’s official publications may not reflect the actual law.

The capacity of a cylinder is defined to mean ‘the total internal volume of a form of packaging at a temperature of 15° Celsius, expressed in litres or cubic metres’.   The capacity so defined is not however equivalent to the volume of gas in the cylinder – ie a cube that is 1m x 1m x 1m has a volume of 1m3 (or 1 cubic metre) but that tells you nothing about how much compressed oxygen can be put into that cube.

In the original post I said:

According to BOC Healthcare UK, a “D” size oxygen cylinder is 340 litres and a “C” size is 170 litres (http://www.bochealthcare.co.uk/internet.lh.lh.gbr/en/images/cylinder_data_med309965_2011409_54065.pdf).  I assume that is also true in Australia.  Assuming all the oxygen bottles are full, an ambulance with 2 D and 3 C bottles is carrying 1190 litres of compressed oxygen.

A number of people have told me that the assumption (that an Australian gas cylinder has the same capacity as a UK gas bottle) is incorrect.  I have been told that in Australia

  • D cylinders are 1200 litres or 1600 litres and
  • C cylinders are 400 litres or 630 litres.

Given they are both bigger numbers than my original assumption, it must follow that the ambulance is carrying much more than 1000 litres of oxygen.

So then the issue is – is it the capacity of the cylinders (as defined), or the amount of compressed oxygen that is relevant?

The definition of aggregate quantity:

… in relation to a load containing dangerous goods, means the total of:

(a) the number of kilograms of:

(i) solid dangerous goods, and

(ii) articles (including aerosols),

in the load, and

(b) the number of litres or kilograms, being whichever is used in the transport documentation for the load to describe the goods, of liquid dangerous goods in the load, and

(c) the total  capacity in litres of receptacles in the load containing dangerous goods of UN Class 2 (except aerosols).

Let us assume that compressed oxygen is not a ‘solid’ dangerous good so (a)(i)=0.   ‘Articles’ is not defined so let us assume that is five (ie there are five bottles).  Let us also assume that oxygen is not a ‘liquid dangerous good’ so (b) = 0.  Oxygen is a class 2 dangerous good so the total capacity in litres would seem to refer back to the definition of capacity already given. I’m told a D cylinder has a ‘capacity’ of about 10 litres of water, and a C cylinder about 3 litres.  That would mean the capacity, in litres, of 2 D and 3 C cylinders would be 29 litres.

Clause 5 says the Dangerous Goods (Road and Rail Transport) Regulation 2014 (NSW) does not apply where:

  • the load does not contain (i) dangerous goods in a receptacle with a capacity of more than 500 litres

and

  • the aggregate quantity of the dangerous goods in the load is less than 25% of a placard load.

The D and C cylinders do not have a ‘capacity’ in excess of 500 litres so (a) applies.  If the relevant amount for placarding is the ‘aggregate quantity’ which is the volume in litres of the cylinders then the aggregate quantity is 29 litres which is much less than 25% of the placard load amount (1000 litres).

So what about my comment on believing the regulator?  The EPA website says that a placard is required where ‘there are more than 1,000 L/kg of dangerous goods in a load’ (http://www.epa.nsw.gov.au/dangerousgoods/FS2placardloads.htm).  That’s talking about the actual quantify of the dangerous goods (which is clearly well over 1000 litres) not the water holding capacity of the containers in which the gas is stored.

So to further clarify the matter I’ve gone back to the EPA and they have refined their advice.  They say:

The load limits on which a placard load is determined is based on the aggregate quantity of dangerous goods being transported. The Australian Code for the Transport of Dangerous Goods defines aggregate quantity as:

1.2.1.2.1 Aggregate quantity – (Regulation 1.2.1)

The aggregate quantity of dangerous goods means the total of:

(a) the number of kilograms of:

(i) solid dangerous goods; and

(ii) articles (including aerosols); and

(b) the number of litres or kilograms, whichever is used in the transport documentation to describe the goods, of liquid dangerous goods; and

(c) the total capacity in litres of receptacles containing dangerous goods of Class 2 (except aerosols);

The aggregate quantity of Class 2.2 dangerous goods that would require placarding is more than 1000 litres so the load carried by an ambulance, as listed below, is well below that amount. In most instances vehicles transporting less than a placard load are still required to carry transport documents however because of the small quantities involved there is an exemption in the Dangerous Goods Regulations that would be applicable:

5 Exempt transport

(2) This Regulation does not apply to the transport by a person of a load that contains dangerous goods if:

(a) the load does not contain:

(i) dangerous goods in a receptacle with a capacity of more than 500 litres, or

(ii) more than 500 kilograms of dangerous goods in a receptacle, and

(b) the goods are not, and do not include, designated dangerous goods, and

(c) the aggregate quantity of the dangerous goods in the load is less than 25% of a placard load, and

(d) the goods are not being transported by the person in the course of a business of transporting goods by road, and

(e) in relation to transport by rail—the goods are not being transported by the person on a passenger train.

The ambulances are carrying less than 25% of a placard load and are not in the business of transporting goods and so are exempt from the provisions of the Regulations.

Conclusion

So the extra information that has been provided causes me to rethink my answer.  The conclusion is that if compressed medical oxygen is being carried in a container or containers with a capacity of more than 1000 litres of water, then a placard is required.

If, as I am told, the aggregate capacity in litres of 2 D and 3 cylinders is somewhere around 30 litres (even though you can fit in more than 1000 litres of oxygen) then there is no need for a placard. A placard would only be required if the vehicle was transporting more than 100 D cylinders.

That would explain why ambulances do not need dangerous goods placards which does accord with the intuitive answer.

I also stand by my original starting point: I thought the answer to this question would be easy to find but this has turned out to be one of the most complex answers I have ever had to wade through.


Categories: Researchers

Is a dangerous goods placard required for an ambulance?

12 May, 2015 - 15:17

This question was received from a correspondent in NSW:

I was wondering if you had the time to answer a quick question about the law in NSW for the transport of Oxygen cylinders.

I note that BOC suggest transporting the cylinders in accordance within local laws (of which I have not been able to find any), but wonder if St John & NSW Ambulance vehicles should be displaying the 2.2: Non-flammable, non-toxic gas. & 5.1: Oxidizing substances signage on the outside of vehicles.

I saw this question and thought ‘the answer has to be ‘no they don’t need to display a dangerous goods placard, because if they did, they would’. So, I assumed, the answer would be a matter of finding the relevant law and somewhere, in its application, would the answer why it did not apply to the ambulance service.   The answer was not so clear.

The relevant law is set out in the Australian Dangerous Goods Code which is given effect by the Dangerous Goods (Road And Rail Transport) Act 2008 (NSW) and the Dangerous Goods (Road and Rail Transport) Regulation 2014 (NSW).

According to the Code, compressed oxygen is a class 2.2 dangerous good (see the table on p 152). The rules for when a vehicle must carry a placard is set out in the table on p 449. Where the dangerous goods are in a container that holds less than 500 litres or 500kgs of dangerous goods then a placard is not required unless the total load exceeds 1000 litres or kilograms (http://www.epa.nsw.gov.au/dangerousgoods/FS2placardloads.htm).

I am reliably informed that the standard load in an ambulance is two D size cylinders and 3 C size cylinders. According to BOC Healthcare UK, a “D” size oxygen cylinder is 340 litres and a “C” size is 170 litres (http://www.bochealthcare.co.uk/internet.lh.lh.gbr/en/images/cylinder_data_med309965_2011409_54065.pdf). I assume that is also true in Australia. Assuming all the oxygen bottles are full, an ambulance with 2 D and 3 C bottles is carrying 1190 litres of compressed oxygen.

According to clause 5, the Dangerous Goods (Road and Rail Transport) Regulation 2014 (NSW) does not apply where:

(a) the load does not contain (i) dangerous goods in a receptacle with a capacity of more than 500 litres, or

(b) the goods are not, and do not include, designated dangerous goods, and

(c) the aggregate quantity of the dangerous goods in the load is less than 25% of a placard load, and

(d) the goods are not being transported by the person in the course of a business of transporting goods by road, and

(e) in relation to transport by rail-the goods are not being transported by the person on a passenger train.

Criterion (a) is satisfied as none of the ‘receptacles’ (ie the D and C cylinders) is larger than 500 litres. Criteria (b) and (d) are met and criteria (e) is not relevant. The only issue is whether the total load (1190 litres) is less than 25% of the ‘placard load’.

Unhelpfully clause 9 defines a ‘placard load’ as ‘a load that contains dangerous goods that must be placarded under clause 78’.  Clause 78 says that a load must be ‘placarded’ if there is a receptacle in excess of 500 litres (which is not the case with D and C cylinders) or if it ‘contains an aggregate quantity of dangerous goods of 1,000 or more’ (see also http://www.epa.nsw.gov.au/dangerousgoods/FS2placardloads.htm).   The aggregate quantity is the number of litres where litres are used to describe the load or ‘total capacity in litres of receptacles in the load containing dangerous goods of UN Class 2 (except aerosols)’ (cl 9).

Remember that Oxygen is class 2.2 so the aggregate quantity in the average ambulance is ‘1,000 or more’. In that case this is not only more than 25% of a placard load, it is more than 100% of a placard load so criteria (c) does not apply and therefore neither does the exemption in clause 5.

Clause 7 provides a further exemption where the amount of dangerous goods is less than 500l/kg and the goods are being transported ‘by a person who intends to use them’ (cl 7). An ambulance is being used to transport compressed oxygen so the paramedics can use it in the course of their duties, not as a way to transport oxygen from point A to point B, so this regulation would apply if the total quantity of oxygen in the vehicle is less than 500l, but as noted, a standard load appears to be in excess of 1000 litres.

It follows from the above that as far as I can see, unless an exemption has been granted by the Environment Protection Authority (Dangerous Goods (Road And Rail Transport) Act 2008 (NSW) s 42) an ambulance carrying in excess of 1000 litres of compressed oxygen should be carrying the appropriate placard.

Now this answer seemed so counter-intuitive to me that I took the unusual step of trying to verify my conclusion. I say ‘unusual’ as usually I’m confident enough to write my interpretation of the law and I don’t see it is my job to ask the regulators, ie the law enforcers, if they agree. Those that work in enforcement agencies have to apply directions from senior staff, form pragmatic interpretations of the law or assume the law says what they meant it to say, not what it does say. A lawyer often has to ‘challenge’ decisions of government on the basis that they are not applying the law as it is. Given that role one does not ask the regulator what the law is but goes to the law to form one’s own opinion. But, as I say, this time the answer seemed so counter intuitive that I wrote to the Environment Protection Authority to ask if I’d missed anything or misunderstood the law.  Their officer, in an email reply said:

In regards to the transport of dangerous Class 2 goods placarding is only required for compressed gas if:

The vehicle is transporting 250 litres/kilos or more of any dangerous goods where there is any amount of Class 2.1 (flammable gas) or Class 2.3 (toxic gas).

or

The vehicle is transporting more than 1000 litres/kilos of Class 2.2 (non-toxic, non- flammable compressed gas).

As noted above a load of 2 D and 3 C cylinders is in excess of 1000 litres. It follows that an ambulance should have a dangerous good placard.

According to the code [5.2.2.1.5.1] there is no need for both ‘2.2: Non-flammable, non-toxic gas & 5.1: Oxidizing substances placards’. Instead ‘a yellow “OXIDISING GAS” label (model No. 2.5) may be used In lieu of Division 2.2 plus Subsidiary risk 5.1 labels’. The appropriate placard is shown, below.

I would suggest the ambulance services and the Environment Protection Authority may need to sit down to discuss the finer points of the law and how much oxygen is being carried in each vehicle.


Categories: Researchers