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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
Updated: 14 hours 28 min ago

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

Arizona State Forestry Division not liable to homeowners for property lost in the Yarnell Fire, 2013.

8 May, 2015 - 09:02

People in the wildland fire community will be familiar with the Yarnell Hill Fire of 2013. This fire occurred in 2013 and led to the death of 19 firefighters, all members of the Granite Mountain Hotshots team. Only one member of the team survived.   Apart from this tragedy a number of homes were lost to the fire and homeowners sued the Arizona State Forestry Division (ASFD) claiming that the Division ‘negligently failed to protect them from harm that resulted from the Fire’.

I’ve made the comment before that in Australia we think everyone sues in America, and what’s more, every plaintiff wins. I’ve previously drawn attention to cases where plaintiffs have not been successful (see US city not liable for failure to rescue (February 13, 2013) and What if you rang 911 and no-one came? (March 10, 2015)) and that is the result, so far, in this case.

On 28 April, Judge Gama of the Superior Court Of Arizona, Maricopa County dismissed the plaintiff’s claims on grounds that will be familiar to Australian lawyers and readers of this blog. (You can read His Honours reasons for judgment here).

The first issue was whether it was possible to sue the Arizona State Forestry Division. Judge Gama found that it was not, that is the Forestry Division was a ‘nonjural entity’. The Judge agreed with that submission holding that ‘a governmental entity may sue or be sued “only if the legislature has so provided”’ (p 2). As the legislature had not ‘so provided’ the Forestry Division could not be sued. That is not as dramatic as it sounds and the position is the same in Australia (though we may not use the term ‘jural’ or ‘nonjural entity’). Some legislation will say that a government authority is an entity capable of being sued in its own name; others do not. Where it does not then the appropriate defendant is the state and we’ve seen that with, for example, litigation from the Canberra fires where the defendant was the State of NSW, not the NSW Rural Fire Service.   The finding that the ASFD could not be sued was not really the issue; that just directed focus on whether or not the State of Arizona, rather than the Forestry Division was negligent.

Judge Gama found that there had been no negligence. His ruling was based on the law of negligence and given the common legal history of England, the US and Australia the law is not very different. As His Honour said (at p 2):

To establish a claim for negligence, a plaintiff must prove (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach of that standard of care by the defendant; (3) a causal connection between the defendant’s conduct and the injury; and (4) actual damages.

The critical issue was whether the state, when fighting the fire, owed a legal duty to take care to protect the homeowners. As has been noted on this blog, the English courts and the Australian courts have all ruled that a fire service that is established to act in the public good does not owe a duty of care to individuals even those at direct risk from the fire (see Capital and Counties v Hampshire Council [1997] QB 2004; Warragamba Winery v NSW [2012] NSWSC 701; Electro Optics and West v NSW [2012] ACTSC 184; Myer Stores v State Fire Commissioner (Tasmania) [2012] TASSC 54; Hamcor Pty Ltd v State of Qld [2014] QSC 224 and Stuart v Kirkland-Veenstra [2009] HCA 15 (with respect to police).)

No duty of care

Judge Gama, quoting the Restatement (2d) of Torts § 323 (1965), said that a duty could arise if the defendant, Arizona, had voluntarily undertaken to protect the plaintiffs.   Where a defendant agrees to render services to another, intended to protect that other from harm, there can be liability if the defendant increases the risk of harm or the injured person has relied upon the defendant to protect them.

In this case the state of Arizona, when it commenced fighting the fire on state land it was acting to protect its own land, not as a service to the homeowners that might have been, and were, affected if and when the fire escaped their control efforts.

His Honour also found that the homeowners did not rely on the state to protect them.   According to Judge Gama (p 4) the ‘Plaintiffs urge that they could have taken “special emergency measures” (e.g., trimming vegetation, hosing down buildings and vehicles)’ but they did not. They did not claim that they relied on the state to do those tasks for them, but they relied on the state to effectively fight the fire.   His Honour dismissed this claim saying ‘Clearly, remedial fire prevention acts are not alternatives for the act undertaken by the State’. In essence it was not open, or reasonable, for the plaintiffs to say ‘we didn’t have to do anything to protect ourselves when we could have taken simple measures, because we expected the fire service to stop the fire before it got here’.   I suspect that aspect of the ruling would be encouraging for those actively encouraging home owners in Australia to develop their own fire plan and develop their own resilience.

The plaintiffs also alleged negligence because they relied upon the State to give notice to evacuate. This case failed as they could not point to any ‘undertaking’ by the state to deliver an evacuation warning nor could they point to any law that would impose a legal duty upon the state to do so.

His Honour did not address whether or not any action by the defendant increased the risk to the plaintiffs so one has to infer that the plaintiffs made no allegation to that effect.

Public policy

The plaintiffs’ argued that as a matter of public policy the court should find that there was a duty owed to those in the path of the fire. Judge Gama thought ‘public policy’ went the other way. He said (p 5, reference omitted):

The Court is persuaded that public policy does not support imposition of a duty on the State to protect Plaintiffs’ property from wildfires … “The decisions of how to properly fight a particular fire, how to rescue victims in a fire, or what and how much equipment to send to a fire, are discretionary judgmental decisions which are inherent in this public safety function of fire protection.”

And being ‘discretionary judgmental decisions’ for the executive arm of government, they are not subject to review or second-guessing by the judicial arm.

‘Abnormally dangerous doctrine’

The plaintiffs relied on this doctrine. As an Australian lawyer I’m not quite sure what this is but I would infer that it’s like the old rule described here as ‘the rule in Rylands v Fletcher’ (referring to Rylands v Fletcher (1868) LR 3 HL 330). That rule imposed strict liability (that is liability without proof of negligence) if a defendant brought something dangerous onto his or her land and it escaped. I would infer that the ‘abnormally dangerous doctrine’ says that if you are engaged in some abnormally dangerous activity you are liable for any harm caused, regardless of the care taken to avoid that harm. Following the decision in Burnie Port Authority v General Jones (1994) 179 CLR 520, which said that the rule in Rylands v Fletcher is no longer law in Australia, that doctrine probably does not apply here, if it ever did.

Regardless of the doctrine’s application in Australia, Judge Gama ruled it had no application in this case as the defendant was not engaged in an abnormally dangerous activity.   The state was engaged in the activity of firefighting and it was the fire that caused the damage to the plaintiffs so even if firefighting is an abnormally dangerous activity, it is not what caused the plaintiffs’ losses and the doctrine could have no application.

Conclusion

The conclusion was that the home owners’ claims were dismissed. The plaintiffs have filed an appeal to the Arizona Court of Appeals so the matter is not yet over. Given the interest that the wildfire community has in this fire and its legal consequences, this is a case that will be watched with interest.


Categories: Researchers

Paramedics and off duty volunteering – but for who?

1 May, 2015 - 16:26

This question comes from a Victorian Paramedic:

I have a question for you and hope you can help. I (and a number of other paramedics) have been approached by a large international motorcycle company to help provide first aid to events they operate. The events involve week long trips into various states and territories within Australia with limited vehicular access. The paramedics would be operating outside of work as volunteers but may be given free accommodation and entrance fee. I have approached my employer who states we would not be legally indemnified if we rendered assistance.

Do you think we would be covered by the Good Samaritan Act in this situation or should we try to gain some form of indemnity insurance?

My employer also states I cannot act at a skill level above basic first aid. After reading many of your articles I get the sense I can act at the level at which I have been trained (ALS) with the equipment available to me at the time. Is this correct?

In the absence of professional registration, describing oneself as a ‘paramedic’ is, I’m afraid to say, legally meaningless.   Your employer is correct that you would not be legally indemnified (at least by them) if you undertook this task. There is a notion called ‘vicarious liability’ that says an employer is liable for the negligence of an employee in the course of their employment. The event organizer is not approaching ambulance Victoria or entering an agreement with them so any paramedic doing this job is not acting as an employee of ambulance Victoria so any liability issues would have nothing to do with them.

Whether the event organizer would be liable for any negligence would depend on the nature of the agreement. If the organizer were employing the paramedics there is no issue, the organizer would be liable for any negligence by their employees. If however they are engaging the paramedics as ‘independent contractors’ (and it sounds like that is what is intended) then the paramedics are providing a service to the organizer and would be liable for any alleged negligence.

Do I think you would be covered by the Good Samaritan Act? No I do not. The good Samaritan provisions (Wrongs Act 1958 (Vic) ss 31A-31D) says:

A good samaritan is an individual who provides assistance, advice or care to another person in relation to an emergency or accident in circumstances in which—

(a)     he or she expects no money or other financial reward for providing the assistance, advice or care; and

(b)     as a result of the emergency or accident the person to whom, or in relation to whom, the assistance, advice or care is provided is at risk of death or injury, is injured, is apparently at risk of death or injury, or is apparently injured.

They go on to say that

A good samaritan is not liable in any civil proceeding for anything done, or not done, by him or her in good faith—

(a)     in providing assistance, advice or care at the scene of the emergency or accident…

Arguably as a volunteer you meet that definition but that is not the sort of person that the Act is intended to cover. These provisions were intended to cover people who might refuse to assist at a sudden accident.   By setting yourself up as professionals ready and willing to provide assistance, particularly to a sport that may not be able to proceed without paramedic assistance, you are not, I suggesting acting as good Samaritans.   Rather you are doing the task for a reward even if that reward is not payment, it is clearly a ‘job’ that is providing some reward even if it is just the fun of going, the professional challenge and the ‘something different’.   Whilst the matter is arguable I think a court would have no trouble holding that you are not a good Samaritan.

You may be protected by the volunteer protection provisions that say ‘A volunteer is not liable in any civil proceeding for anything done, or not done, in good faith by him or her in providing a service in relation to community work organised by a community organisation’ (Wrongs Act 1958 (Vic) s 37). This begs the question of whether ‘a large international motorcycle company’ organizing week long events, presumably for profit, is a community organization. I doubt that it is. Even if it is whether you are volunteering for that organization, or providing a service to it, would depend on the exact terms of the agreement.

My answer to the first question is, in short yes, you should have professional indemnity insurance if you can find anyone that offers such insurance. The problem is that there is no real expectation of private paramedic practice so I would anticipate there would be few insurers who would offer such insurance.

As for skill level, you can do whatever you like provided there is no law against it and it’s got nothing to do with your employer. If you have oxygen, a defibrillator, intubation kit etc you can use them all, but at your risk. The restricted practice is in relation to the use of scheduled drugs. As a Victorian Paramedic the right to carry Schedule 4 and 8 drugs is limited to an ‘operational staff member within the meaning of the Ambulance Services Act 1986’ (Drugs, Poisons and Controlled Substances Regulations 2006 (Vic) reg 5). Given that the anticipated work is with the motorcycle organization and not Ambulance Victoria, that right would not transfer, that is without a personal authorization, or an authorization held by the ‘large international motorcycle company’ you could not carry or use any scheduled drugs.

It is not the place of this blog to provide legal advice but even so, one should note that there is a growing private ambulance profession. A commercial entity seeking to provide motor sports, that I would imagine actually require on site health facilities, should be engaging professional services to ensure that the legal entity of the contracting party is clear, that the terms of the agreement set out who is responsible for what and to provide relevant legal authority for paramedics to practice with the drugs that are part of the tools of their profession.   Approaching paramedics employed by Ambulance Victoria may get experienced staff but the details of who is responsible for what, whether the paramedics are working for, or providing a service to the organizer would be unclear.   Participants in the race would expect a certain level of professional service and probably equipment so one would have to ask who is going to provide on site ambulances, first aid kits, resuscitation kits etc.     What are the medical plans and who is expected to write them? What are the plans to evacuate injured riders from remote areas etc.

These matters may all be addressed in the terms of the offer, but I suggest getting involved in such matters should be left to entities that have set themselves up as being able to provide these services, not recruiting a number of ambulance Victoria employees on an ad hoc basis.


Categories: Researchers

Liability for dangers trees

28 April, 2015 - 15:26

This question comes from a correspondent on the NSW Central Coast:

i would like to find out the responsibility of councils regarding trees that cannot be removed but poses a danger to people or properties. Can council be sued if a tree say destroys property. If not why should council have the power to punish those who cut trees yet they cannot be liable for damage caused by the same trees.

Local governments are indeed governments; they are not the same as individuals Graham Barclay Oysters v Ryan (2002) 211 CLR 540). Councils have the power to make tree preservation orders under various Local Environment Plans under the Environment Planning and Assessment Act 1979 (NSW). They have the power to do that as the preservation of trees may be in the public interest even if they are not in a person’s individual interest.

The real issue in this question is, I would suggest, a dispute as to whether or not the trees are dangerous? Another critical question is ‘who owns the tree?’

If the tree is a council tree and the risk is to a neighbouring property, then council would be liable, like anyone, if it failed to take reasonable care of its trees. That does not mean council has to know the up-to-the-minute state of every tree, but it would, ideally, have some sort of inspection program and a policy regarding tree replacement given the type of trees and their expected life span.

If a neighbour thinks the tree is unsafe they should let council know which would put them on notice of a problem and would, one might expect, cause them to at least arrange an inspection.

If the tree is a private tree and the person wants to remove it but is prohibited, the question is ‘are they really prohibited?’ If there is a tree preservation order in place it will provide a means to apply for permission to remove the tree. If one were to make an application one would need to support it with evidence, ideally from an arborist, that the tree is indeed, unsafe.

In Timbs v Shoalhaven City Council [2004] NSWCA 81 a council was liable for failing to properly consider a request to remove trees that were dangerous. The issue arose because a council employee, when asked if trees could be removed, did not advise the homeowner to make an application, rather he said that the trees could not be removed without permission (which was true). By not giving correct advice or taking steps to inspect the trees the employee was negligent. If, however an application had been made, the trees had been competently inspected and a decision made, in good faith, not to allow the removal of the trees there would have been no liability even if the tree had fallen in the wind.

Liability does not arise because of bad consequences but because of a failure to take reasonable care. One might assess a risk as very low and not take action, but even a low risk can occur so the fact that it does occur does not show that the assessment was wrong, or that other action should have been taken.


Categories: Researchers

Australian Emergency Law heads overseas          

26 April, 2015 - 01:46

Well not so much the blog, as the blogger.   For the next month I will be in the United States asking questions about post-event learning to inform research that colleagues and I are undertaking with the support of the Bushfire and Natural Hazards Cooperative Research Centre (http://www.bnhcrc.com.au).

My trip begins with a week in Sacramento taking part in a course on ‘Learning from Unintended Consequences’ run by the National Advanced Fire and Resource Institute (www.nafri.gov).   This course will explore Facilitated Learning Analysis (FLA). In the FLA Implementation Guide, part of my pre-course reading, they say:

How an agency responds to an accident is enormously important. The leaders’ responses will either vector the agency toward a Learning Culture or away from it. If the leadership assumes the accident happened because someone failed to do something right, then the natural response is to determine (in dazzling hindsight) what rules or protocols were broken. We can then identify (or blame) the rule breaker and return the system to safety. All that’s needed are better rules or better compliance. End of story—until the next accident.

Alternatively, leaders can see that while accidents are very rare, risk is ever present. It is ubiquitous. … Understanding this, progressive leaders can treat accidents and other unintended outcomes as precious opportunities to look deeply into the operation to better understand how employees perceive and manage risk. This view enables deep learning and with it, an accident can become a safe opportunity for those involved to share their story.

This course will involve learning how to implement FLA and encourage people to ‘share their story’.   This process can be used in what might be considered traditional accidents and near misses but can it applied at a larger scale, when all of community is involved? Is there a method here that can be applied to large scale events such as Victoria 2009 or Coonabarabran 2013?   Apart from taking part in the course I hope to have the chance to talk with the presenters and other participants on their experience in post event learning.

For a very different change of pace, I travel from there to Monterey to the 9th Annual Wildland Fire Litigation Conference. (http://www.wildlandfirelitigation.com/) This conference is intended to bring lawyers who act for both plaintiffs and defendants together to build their mutual understanding of relevant issues, science and evidence in order to help ensure litigation is more efficient and focussed on relevant issues. I do expect to get a very different view on post-event learning from the participants there.   As I am a lawyer, though, this conference will be with my professional peers and I’m honoured to give the opening key-note address on the litigation from the Victorian 2009 bushfires.

After that I will be in Tucson to spend a week visiting the Widland Fire Lessons Learned Centre (http://www.wildfirelessons.net/home) to discuss their role in ensuring lessons are shared with the wildland fire community. Again I am interested in exploring whether there is a model there that may be useful in Australia but not only to identify lessons from, and for, firefighters, but also for the whole community.

I then travel to Berkeley to spend a week visiting the Center for Law, Energy & the Environment where a number of scholars with an interest in law and disaster management are working.   Some family time will be followed by a two day workshop at Stanford University looking at the question ‘‘How Can International Environmental Law Reduce Disaster Risks?’

I’ll be back in Australia on 24 May after a month away; but if that’s not enough, two weeks later I’m off to Rome for an ‘Experts Meeting on the International Law Commission’s Draft Articles on the Protection of Persons in the Event of Disasters’ where I’m privileged to be counted among one of the experts.

After that workshop I will be a guest of the University of Bologna’s International Disaster Law project (http://disasterlaw.sssup.it/about-us/project-overview/) where my colleague, Federico Casolari (http://disasterlaw.sssup.it/the-team/unibo/federico-casolari/) is organising a forum on regional cooperation in disaster management.   International law says that fundamental responsibility for disaster management lies with the affected state, and there has been pressure for a universal, multi-national law similar to the Geneva Conventions with their universal application in times of war. This forum will, I anticipate, explore the role of the middle ground, between nation states and the collective world community to consider how regional cooperation can enhance disaster management.

After that there is one more trip when, in July, I’ll be travelling to New Zealand to address the Forest and Rural Fires Association (http://www.frfanz.org.nz/) Annual Conference.

Apart from these international engagements there’s also the Emergency Media and Public Affairs (EMPA) Conference in Sydney (http://www.empa.org.au/site/conferences_aus.htm) and the Australian Fire and Emergency Services Authorities (AFAC) and Bushfire and Natural Hazards CRC conference in Adelaide in September (http://www.afac.com.au/events/conference2015/home).

That’s a lot of travel but I do hope that what I learn, and what I can share, helps the emergency service community, and the community generally, to help manage emergencies and in context of our current research, manage the post-event learning.


Categories: Researchers

Paramedic fatigue and work health and safety

22 April, 2015 - 11:02

A correspondent has brought to my attention a case from the UK where paramedics are registered health professionals.  My correspondent says:

An interesting case has recently been decided in the UK by the HCPC. The case essentially boils down to a Paramedic ‘refusing’ an allocated call, the reasons for this refusal remaining unclear (and open to interpretation depending on who’s account you read).

There has been extensive media coverage in the UK, almost all of which has focussed on the refusal by the Paramedic to attend the call.

For example: http://www.mirror.co.uk/news/uk-news/paramedic-suspended-after-refusing-attend-5487230

On the flip-side there has been some, mainly social media, comment by those in various services on the increasing pressures on individual ambulance crews, control centres and response time targets. They raise the issue of health and safety, and risk assessments. They make the point that paramedics are increasingly administering medications which can have harmful side effects, carry out invasive procedures which carry considerable risk, and it may be entirely appropriate that a paramedic refuse a call based on their level of perceived tiredness.

For example: http://brokenparamedic.blogspot.com.au/2015/04/fear-and-loathing-in-las-ambulance.html

Interestingly some social media comments has also focussed on the reports that the patient then waited a further 90 minutes for an ambulance. They make the point that no mainstream media has sought to identify this delay, potentially as a result of lack of resources or the patient being classed as lower acuity and thus not needing an emergency response in the first place. (Note: there is a lack of evidence for both of these.)

Unlike Australia, the HCPC is able to publish its findings and order of suspension – http://www.hpc-uk.org/complaints/hearings/index.asp?id=5616&month=4&year=2015&EventType=H&hc_location=ufi. Although not all the evidence is presented it does make for interesting reading.

The paramedic in question, prior to the HCPC hearing, was dismissed by the London Ambulance Service following an internal investigation. After being dismissed he did not contest the HCPC, and from what I can read did not attend that hearing. Australia does not have registration so we know that an HCPC suspension would not occur, but rather (I assume) any disciplinary action if a paramedic did the same here would fall to each individual employer.

So my question is, where do Australian Ambulance Paramedics stand if they refuse a call on health and safety grounds?

In answer this question I’ll refer to the Work Health and Safety Act 2011 (Cth) which is the ‘model’ Act that is meant to be applied across the country.  It has not, yet, been adopted in all jurisdictions but the principles are sufficiently close that reliance on that Act will, I trust, be sufficient.

The Work Health and Safety Act 2011 (Cth) requires a PCBU (a Person Conducting a Business or Undertaking, in this context, the relevant Ambulance Service) to ‘ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person…’ (s 19(1)).  The PCBU must also ‘ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking’ (s 19(2)).  So the ambulance service has to have regard to the health and safety of its staff (the paramedics) and the people who may be affected by them (ie the patients).     Fatigue will clearly be an issue that affects both, but the law does not impose a condition to ensure that all paramedics are well rested and able to function.  If it did a service might operate on 4 hours shifts and only between the hours of 9am and 5pm.    That would reduce the risk of fatigue but would not be ‘practicable’.  An emergency ambulance service has to operate 24 hours a day.

The Act (s 18) says, that when considering what is ‘reasonably practical’ regard must be had to:

(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.

Presumably any 24 hour emergency service appreciates that members, particularly on night shift and if they operate for 11 hours without a break, are going to be fatigued.  Managing that has to take into account the potential risk to everyone but also the need to maintain that 24 hour a day service.    Let me assume, for the sake of the argument, that any ambulance service as a fatigue management policy but I make no assumption about whether it is a good or effective policy.

The obligations upon employees includes an obligation to ‘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).   If we accept that the fatigue management policy is a relevant health and safety policy then everyone, the paramedic, the control room despatcher, supervisor’s etc are all under a duty to ensure compliance with the policy.

A worker has a right to ‘cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard’ (s 84).  One can imagine that working in paramedicine eg where a paramedic is directed to enter a scene before it has been made safe by the rescue squad, police or electricity authorities (depending on the hazard).  The paramedic may well refuse to enter that site until it has been made safe.

It is an offence to discriminate against an employee (eg by sacking them or employing them on less favourable terms) (s 105) because they exercised any of their rights or powers under the Work Health and Safety Act (s 106).

Without going into the difficulties of paramedics being generally employed by State government authorities, I will assume that paramedics are protected by the unfair dismissal provisions in the Fair Work Act 2009 (Cth).  That Act says that a person is to be protected from unfair dismissal (s 382).  In deciding whether or not a dismissal is unfair, the Fair Work Commission (the FWC) must consider (s 387):

(a)  whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b)  whether the person was notified of that reason; and
(c)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)  any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)  if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)  the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)  the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h)  any other matters that the FWC considers relevant.

Relevant facts

The findings of the Health and Care Professions Council (HCPC) reveal that:

  • The paramedic was at the end of an 11 hour unbroken night shift ([53]).
  • The call was received at 5.20am and his shift was due to end at 6am ([12]).
  • The paramedic advised the coordination centre that “I am not accepting it and I think it is dangerous” ([23]).

In coming to their decision to suspend the paramedic for 12 months, the HCPC said (at [43]):

It is clear from the transcript of the radio conversation that the Registrant wished to end his shift. He commented on more than one occasion throughout that conversation that it had been a busy shift and that he was tired. Although during the Trust’s investigation the Registrant sought to explain his actions by reference to his health, there is no evidence either in the transcript or according to PS, who spoke to him after his shift had concluded, or elsewhere, such that his health would have prevented him, at the time, from accepting the call. His misconduct put the service user at potential risk of harm and he had been told that there was no other crew available to attend upon that service user. As a result of the Registrant’s refusal to attend the call, there was a delay of approximately 90 minutes before another crew was able to attend the service user.

Discussion and application in Australia

There does seem to be an issue as to whether ‘fatigue’ and ‘health’ are synonymous.  The paramedic said it was ‘dangerous’ and ‘that he was tired’ but lead no evidence as to his ‘health’.  That may well just be a procedural failing, in that the paramedic could have brought evidence as to the effect of fatigue and the risks that posed to his safety and to patient safety.  As the tribunal said ‘there is no evidence … that his health would have prevented him’ from proceeding.

In that sense the outcome here may have just been a problem with procedure.  The paramedic, it appears, didn’t say he couldn’t proceed because of fatigue, but because of his ‘health’ but then brought no evidence as to his ‘health’.

It must be, of course, that paramedics can refuse jobs due to their health.  Paramedics (like anyone) will get sick during the course of a shift or get injured and there has to be processes in place where they can then ‘call in’ and say they can’t continue with their shift.    There is I suggest a difference between calling in sick or injured during the course of a shift, and doing it when an emergency call has been allocated to you, but I suppose a paramedic, after 11 hours and 40 minutes before shift change might expect that he or she will not be allocated a task and perhaps the oncoming staff will be ‘called on’ early to respond.  In that case he or she might not think to report in as unable to continue until someone does allocate a task.

So where does an Australian paramedic stand?  As my correspondent has noted, paramedics in Australia are no registered health professionals so there is no process, such as that followed by the HCPC, to be applied here (at least not yet).   The issue will be one for the employer, the ambulance service.

An employee is required to obey the reasonable directions of their employer.   Paramedics are employed to respond to tasks allocated to them by their employer.  Prima facie then a paramedic does not have a right to refuse a task.  The right contained in s 84 may give rise to a right to refuse to enter the scene but it would not extend, I suggest, to a right to refuse to attend.  (Unless the risk relates to the safety of the vehicle; a paramedic could rely on s 84 to refuse to attend if the risk is that the ambulance they have been provided is not roadworthy).

But, that general rule has to give way to specifics.  If we accept that an 11 hour unbroken night shift with 40 minutes left to run has left the paramedic fatigued to the extent that he or she honestly believes that to proceed would be an unacceptable risk to their own safety or that of their patient then s 84 will be relevant.  Remember it says the worker must have ‘a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety’.  The issue will be was the concern reasonable or not.

So who is to decide? As noted, one should not be a judge in one’s own cause so the mere assertion by the paramedic that he or she was overly fatigued due to the pressures of the night need not be, but may be, accepted at face value.

What we have to assume is that the employer ambulance service, like the London Ambulance Service NHS Trust, wants to dismiss the paramedic.  Apart from the provisions of the Fair Work Act the paramedic would be entitled to natural justice.  The service would have to tell him or her what they allege (‘that you refused to attend an emergency call’) and give the paramedic the opportunity to address the allegation that is to explain that they were fatigued and believed there was a risk to health and safety of either themselves, the patient or both and that the risk was too great taking into account there was also a risk to the patient if they did not attend.    The service would have to have regard to that submission.  Relevant evidence would also include the fatigue management policy and whether that had been complied with and evidence about the paramedics particular state of health at the time.

If the service accepts that explanation, that would be the end of the matter.  If not they might dismiss the paramedic and the paramedic could make an ‘unfair dismissal’ claim.  Again the ambulance service is not the judge, the FWC would be and they would want to have evidence addressing issues set out in s 387 and that too, I would suggest, would include evidence about the fatigue management policy and the steps that the ambulance service must have in place to deal with paramedics being unable to complete their shift.  In short it would be the FWC (or relevant state tribunal if the Fair Work Act does not apply) that would have to determine whether or not the response of the paramedic, and whether or not the response of the service to dismiss the paramedic was ‘harsh, unjust or unreasonable’ (s 385).

If the paramedic is dismissed, or not dismissed but subject to disciplinary action, the matter could also be taken up with health and safety representatives and the state work health and safety regulator.  There are powers to appoint an inspector and otherwise rule on the issues and that would bring into focus the question of whether or not the fatigue management policy was appropriate and appropriate followed by all concerned, and whether or not there was ‘reasonable grounds’ for refusing the allocated tasks.

In either case one has to keep in mind the issue is not just the risk to the fatigued paramedic, but also the risk to the patient in either sending a fatigued paramedic, or sending no-one at all.

I would suggest it is not open to a paramedic to question ‘the call allocation’ ([12]).    If one is too fatigued to operate one is too fatigued regardless of whether or not the paramedic thinks the call is a true emergency or not.  The more ‘urgent’ the situation the more important that the paramedic is able to function well, so if one’s attitude is ‘I’d go if it was a multi-car accident, but I’m not going to ‘a 43-year-old female … feeling faint, dizzy, and was vomiting’ ([12]) then I would suggest the correct inference is not that the paramedic was so tired that there was a risk to health and safety, but rather he or she would prefer to finish the shift.

Conclusion

The question asked was ‘where do Australian Ambulance Paramedics stand if they refuse a call on health and safety grounds?’   My answer is:

  • They have a right to refuse a call on health and safety grounds under the Work Health and Safety Act 2011 (Cth) (or its various state equivalents) s 84.
  • That requires ‘a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety’;
  • If the employer does not accept is the case (eg they think the paramedic just doesn’t want to work past the scheduled end of shift) then the paramedic could be subject to internal discipline which could include termination.
  • If there is a dispute as to the ‘reasonableness’ of everyone’s actions these could be judged by the Fair Work Commission (or relevant state equivalent) if there is an allegation of unfair dismissal, or the relevant work health inspectorate if there is an allegation of discrimination for unlawful reasons as defined by the Work Health and Safety legislation.
  • Those proceedings may or may not come down in favour of the paramedic. It would depend, as the English case did, on the evidence lead and the assessment of the witnesses.

Categories: Researchers

Breaching copyright on brigade computers – implications of Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317

10 April, 2015 - 10:18

I received this question from a Vice-President of a NSW RFS Brigade.  They say:

My volunteer RFS brigade has an internet connection like many do – for brigade use (and members’ use while at station).

My question is what the possible implications of the Federal Court “Dallas Buyers Club” ruling would be, in regards to the brigade executive (President, Captain and so on) – an the liability if a member uses their own laptop etc at station that might have such software? Our station computers don’t have any (known) bitTorent software on them, but this would be of concern if a member installed the software without our knowledge also (perhaps bypassing some protective measures).

http://www.techguide.com.au/blog/what-the-dallas-buyers-club-landmark-piracy-claim-means-for-you/

Issues of copyright law are well beyond my normal experience and I won’t comment  on what the final implications may be.  I will restrict my answer to the decision in Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317.  This is a decision of Perram J in the Australian Federal Court.  Perram J had to decide whether or not to grant an application for ‘preliminary discovery’ sought by the owners of the copyright in the film ‘The Dallas Buyers Club’.   Preliminary discovery is a process that a plaintiff can use when they can’t identify who they should sue, but someone does have access to the relevant records that can be used to identify the appropriate defendant.    In this case Dallas Buyers Club Limited Liability Company (LLC) did not know who had downloaded their movie, but they had relevant IP addresses and the internet service providers would be able to identify the account holders.   Dallas Buyers Club LLC did not say that:

… the account holders and the persons infringing their copyright using BitTorrent are necessarily the same people but they do say that some of them may be and, even if they are not, the account holders may well be able to help them in identifying the actual infringers.

That is they accepted that the person who downloaded the film and the account holder may not be the same person, but if they could identify the account holder then the account holder could help identify who it was that downloaded the movie; and that would be the person they may want to sue.

An action for preliminary discovery is not a trial of the case so the judge did not have to decide whether any action would be successful or whether suing each individual copyright owner would be economically sensible.  They were not issues the court had to consider.

In the end the Court made the orders sought but subject to some conditions.  The ISP’s have to give the account details of some 4,726 account holders.   The applicant, Dallas Buyers Club LLC, may only use that information for the purposes of:

(a)          seeking to identify end-users using BitTorrent to download the film;

(b)          suing end-users for infringement; and

(c)           negotiating with end-users regarding their liability for infringement. ([87]).

The applicant is not allowed to simply write to the identified account holders and demand money or suggest that they are liable for the infringement.  To ensure that the applicant did not engage in ‘speculative invoicing’ the initial letter that they will write to the identified account holders must be approved by the judge.

Implications for the brigade

I infer from the question that my correspondent is concerned that a brigade member may have logged onto the brigades internet connection and downloaded the film.    It’s not clear to me whether the internet connection has been provided by the RFS or is a separate account, with one of the named ISP’s (Iinet Limited, Internode Pty Ltd, Amnet Broadband Pty Ltd, Dodo Services Pty Ltd, Adam Internet Pty Ltd and Wideband Networks Pty Ltd). It perhaps doesn’t matter.

If none of those ISPs are involved in the delivery of the internet service to this brigade then this case has no immediate implications, but it will have longer term implications (to which I shall return shortly).

If the service is provided by one of these service providers, whether paid for by RFS state headquarters or directly by the brigade, and if someone did use the account to download the Dallas Buyers Club then the person who is the identified account holder can expect to get a letter from the ISP but the letter will be approved by the judge and will not simply be a demand for money.   It will then be up to that person to respond to the letter and we don’t know yet what it will say or what it will ask for, but the intention is that it will be seeking to identify the individual who downloaded the film so that the applicant can decide whether or not it wants to sue them for copyright infringement (something the ISPs said was unlikely as the remedy they would expect to get from each individual would be in the vicinity of $10 ([73]).

The longer term implications are more significant and I’m sure is the point the applicant was trying to make. The fact that this case has received the publicity it has and is raising these sort of questions is meant to drive home to computer users that downloading films is illegal, that the producers might be prepared to come after you, and what you do on the net is not private.     Causing a heading from brigade President’s and Vice-Presidents, and for organisations that provide their staff or volunteers with internet access is, no doubt, intended to encourage everyone to get tougher on those that access the internet to ensure that they don’t use it for illegal or improper purposes.  No doubt and in due course, organisations will review their internet access policy and take steps to remind their staff and volunteers as to what is and what not acceptable use is.   Organisations like individual brigades my well stop providing an internet service for members.

So what to do?

First, do nothing – wait to see if you get a letter.  If you want to be forewarned ask members to tell you if they did use the service to download this film.  If not, then there will be no direct implications from this matter.

If the account holder does receive a letter, seek advice before answering it.  Just as the ISPs had privacy concerns about releasing account details, so too a brigade would be concerned before handing over details of a member’s identity or perhaps you can’t answer the questions asked because you can’t identify who downloaded the film.    Further if this affects your brigade it may affect others and the RFS may well want a consistent approach, so refer the letter to the RFS so that they can get legal advice and a whole of service response.

There are no implications for the ‘the brigade executive (President, Captain and so on)’.  The applicants are trying to locate individuals who downloaded the film, and they acknowledge that the person who infringed their copyright may not be the account owner.  The obligation upon the brigade executive will be to answer the letter, if one is received, but as noted above, they should not do so without first getting advice.

In the longer term the RFS and brigades (if they pay for their own internet connection) as well as all employers and others who provide internet services, will have to consider their approach to providing internet services.  They will have to consider the risks v the benefits and what can be done – can BitTorrent sites be barred?  Would another set of rules, or at least a reminder of the current ones, drive home what is or is not acceptable use assist members to avoid future trouble?*  Is the risk too great so that the internet service should be withdrawn, or so low that the brigade (or anyone) says ‘we’ll keep providing the service but if a copyright owner wants your identity, we’ll tell them’.

We can’t begin to answer what the longer term implications are, we’ll have to wait to see how this matter plays out before sensible judgments on what to do in the future can be made.  I note that the blog to which my correspondent provided a link, says ‘iiNet have 28 days to appeal yesterday Federal Court’s decision – and there is no doubt they will’.  If that’s correct this matter has a very long way to go before we can see what the final and long term implications are.

*Internal rules are not, however, the issue.  As noted the applicant is not after the account holder but the person who downloaded the film.  That the entity that provided the service can point to a set of rules and say ‘but we told them not to do it’ is irrelevant; if they broke the rules, or if there are no rules, the issue is a breach of the Copyright Act 1968 (Cth) and the presence or absence of rules has nothing to do with that.   This is not an issue of whether, in this case the Brigade, did all it ‘reasonably could’ to prevent the infringement as the brigade, or the executive, or any account holder are not the target.  Equally a person who did download the film won’t get out of by saying ‘but no-one told me that was not ok’; the issue is not whether he or she adhered to any internal rules but whether he or she broke the law and ‘no knowledge of the law is no defence’.    Rules, as a risk management tool, would only be relevant to draw to people’s attention that they are exposing themselves to legal risk, and the brigade to administrative trouble, if they improperly use the account.


Categories: Researchers

Volunteers and driver’s liability (NSW)

5 April, 2015 - 19:33

This question comes from a volunteer with one of the NSW services.  As the question relates to driving, and not the specific rules of any service, I have ‘deidentified’ them. I will refer to NSW law as that is my correspondent’s state but the answer will also be similar across the nation.  My correspondent writes:

I was on duty … this weekend, and was having a casual conversation …  about driver training/vehicle orientation (or lack thereof) at present, and the liabilities for drivers of vehicles.

I mentioned that in ADF, we have a “blue book,” which is pocket sized log book in which ADF accredited instructors will sign us off to drive a vehicle after we have been oriented to the vehicle and taken on a familiarisation drive, and this happens even if the vehicle is the same as your personal vehicle.

My question: If I drive [a service] owned vehicle, without having received an organisational orientation/training, and I have an accident, can I be held liable? Even if the vehicle is the same as my normal everyday vehicle?

The answer is ‘absolutely you can be held liable, and it makes no difference wither you have received organisational orientation/training or not’; but before everyone starts panicking, let me explain.

If the vehicle is involved in an accident there are two types of damage – personal injury and property damage.

Personal injury

This is injury to any person other than the driver ‘at fault’.   All registered vehicles, and vehicles that are not required to be registered (such as some RFS vehicles) are covered by a Compulsory Third Party Insurance policy.  This is what you pay for when you register your car and in NSW is colloquially known as the ‘Green Slip’.  The terms of a CTP policy are set out in the Motor Accidents Compensation Act 1999 (NSW).   A CTP policy says:

The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle… (s 10).

The policy is a policy of indemnity (s 16).  Unlike your comprehensive car insurance which has a maximum value, a CTP policy will cover all the costs associated with any claim.

So any registered vehicle carries a CTP policy and the owner and driver is indemnified against any losses associated with personal injury, but it is still an ‘at fault’ claim.  If the injured person needs to claim more than initial treatment expenses (Parts 3.2 and 3.3) they need to make a motor accidents claim and generally start court proceedings (see Chapter 4).    In order to succeed they need to prove that the driver of the vehicle was ‘at fault’ and would normally commence proceedings against the driver and owner of the vehicle (both of whom are indemnified).

That the volunteer will be liable is also reflected in the Civil Liability Act 2002 (NSW) which protects volunteers from liability except where ‘the liability is a liability that is required by or under a written law of the State to be insured against’ (s 65).  Liability for causing a personal injury in a motor vehicle accident is indeed the sort of liability that a person must be insured against so the volunteer protections do not apply.  If they did apply, and if a person was injured in a motor vehicle accident where the driver was a volunteer, they could not get compensation for their injuries.

For these reasons ‘organisational orientation/training’ is irrelevant.  If you’re the driver at fault you are legally liable for the personal injuries caused but you are indemnified by the CTP policy.

So the short the driver would be named as the defendant and would in theory be liable if found to be at fault but it’s really a legal fiction, it’s the CTP insurer that is running the matter and which has to pay the damages, it is just a complex way to access the pool established to meet the needs of those injured in motor vehicle accidents.

Property damage

This is slightly different as property damage insurance is not compulsory.  In these circumstances a volunteer could be protected but one assumes that any service carries relevant insurance and they will be vicariously liable for the actions of their drivers.

In this context s 64 of the Civil Liability Act 2002 (NSW) could be relevant.  It says that a volunteer is not protected ‘if the volunteer knew or ought reasonably to have known that he or she was acting … contrary to instructions given by the community organisation.’  If the organisation has given instructions not to drive the vehicle without relevant induction that could be relevant.  If the organisation has no such policy then of course s 64 is not relevant.

Is such a policy required?

The answer has to be ‘no’. Here people are likely to cite the Work Health and Safety Act 2011 (NSW) which requires efforts to ensure safety for volunteers and those likely to be affected by work place but that is, as I’ve said before, really about ‘risk assessment’.   It is not axiomatic that one must do some induction, a risk assessment may well say that if the vehicles being used are standard vehicles, particular induction is not required.

Conclusion

Torts law is about ensuring people who suffer losses due the negligence of others are compensated.  The issue will always be who was at fault – the level of training, and more importantly, certification is largely irrelevant.  The best trained person can make a mistake, a person without formal training can be quite competent.  The question of whether a driver has had ‘organisational orientation/training’ will be relevant in asking whether or not the organisation has taken reasonable steps to ensure health and safety (but will not determine the matter).  It will not determine whether or not their employed or volunteer driver was at fault.  If the driver was at fault then the service will be liable to meet any property damage claim or will look to their insurer if insured.  With respect to personal injury the ‘driver at fault’ will be, in theory, ‘liable’ but will be indemnified by the CTP insurer.  They are in exactly the same position as if they were driving their own car – they are protected provided the vehicle is registered or lawfully exempt from registration.


Categories: Researchers

Good Samaritan legislation and scope of practice

27 March, 2015 - 15:33

This question comes from a NSW volunteer who writes:

At a recent Advanced Resuscitation Techniques  (ART) course in NSW we were advised that a person without a current ART certification would receive no protections under the Good Samaritan Act if they were to treat a casualty using oxygen equipment and that casualty was to subsequently sue them. The explanation was that first aiders weren’t to go “beyond their qualifications”.

There is currently a (probably unofficial) understanding in many RFS brigades that in the absence of a qualified ART operator, anybody who was confident to use the oxygen equipment could do so, with the consensus being that to do something was better than doing nothing.

I understand one doesn’t require first aid qualifications to render first aid, but does one forgo protections under the Good Samaritan Act if one goes beyond his or her current certification to deliver first aid. If so, at what point is one deemed to be “beyond his or her qualifications”?

Statements to the effect that going beyond one’s qualifications takes a person outside the good Samaritan protections shows a fundamental misunderstanding of those protections and why they are there. In short a person does not ‘forgo protections under the Good Samaritan Act if one goes beyond his or her current certification to deliver first aid’.

Nearly all Australian states and territories have in place good Samaritan legislation to ensure that people who step forward to provide emergency medical assistance are not held legally liable for their actions provided they act in good faith (Civil Laws (Wrongs) Act 2002 (ACT) s 5; Civil Liability Act 2002 (NSW) s 57; Personal Injuries (Liabilities and Damages) Act (NT) s 8; Civil Liability Act 1936 (SA) s 74; Civil Liability Act 2002(Tas) s 35B; Wrongs Act 1958 (Vic) s 31B; Civil Liability Act 2002 (WA) s 5AD).

These provisions were introduced following the Ipp Review into the Law of Negligence even though the Review did not recommend that any such legislation was necessary. The Review’s final report said (emphasis added):

The Panel understands that health-care professionals have long expressed a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations. However, the Panel is not aware, from its researches or from submissions received by it, of any Australian case in which a good Samaritan (a person who gives assistance in an emergency) has been sued by a person claiming that the actions of the good Samaritan were negligent. Nor are we aware of any insurance-related difficulties in this area.

Under current law, the fact that a person (including a health- professional) was acting in an emergency situation is relevant to deciding whether the person acted negligently. It may be reasonable in an emergency situation to take a risk that it would not be reasonable to take if there was no emergency, provided that precautions appropriate to the circumstances are taken to prevent the risk materialising.

Also relevant to the issue of negligence is the skill that the good Samaritan professed to have. Suppose a passenger on an aircraft has a heart attack, and in response to a call for assistance by the cabin staff, a 60 year old specialist dermatologist goes to the passenger’s aid. The standard of care expected of the doctor would be set not only taking account of the emergency nature of the situation, but also of the fact that a doctor who has practised as a dermatologist for many years could not be expected to be as well-qualified and able to provide emergency treatment for a heart-attack victim as a cardiac surgeon or even, perhaps, an active general practitioner.

The Panel’s view is that because the emergency nature of the circumstances, and the skills of the good Samaritan, are currently taken into account in determining the issue of negligence, it is unnecessary and, indeed, undesirable to go further and to exempt good Samaritans entirely from the possibility of being sued for negligence. 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. In our view, there are no compelling arguments for such an exemption. (Ipp Review of the Law of Negligence, Final Report (Commonwealth of Australia, 2002), [7.21]-[7.24]).

Even though the Ipp Review saw no need for this type of legislation the states and territories all moved to solve the problem of community fear of legal liability, rather than any real risk. In doing so they have changed the question from ‘did the intervener act reasonably in all the circumstances?’ to ‘did the intervener act in good faith?’

Given my correspondent is from NSW I’ll use the NSW Act. The Civil Liability Act 2002 (NSW) s 57(1) says:

A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

A ‘“good samaritan” is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured’ (s 56).

To be a good Samaritan the person has be

1) acting in good faith;

2) without expectation of payment or other reward

3) to assist a person who is

4) apparently injured or at risk of being injured.

Nothing in that list says anything about ‘acting within one’s qualifications’ and that is for obvious reasons. The Act is intended to encourage people, including those without any qualifications, to help when help is needed. The Ipp review may have said ‘The Panel understands that health-care professionals have long expressed a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations…’ but the section as drafted is not limited to health professionals, it applies to anyone.

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 resect 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. There must be a real attempt by the authority to answer the request for information at least by recourse to the materials available to the authority’.

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.

It should be noted that whether or not one has a ticket or qualification to do something in no way determines whether or not one is negligent. A person who is unlicensed may be a perfectly safe and competent driver; a person with a licence may be a menace. Whether or not one holds a licence or certificate does not determine whether or not they are negligent in any particular case. There is no law that says one needs any particular authority to use oxygen. In an negligence action the question would be ‘was the use of oxygen reasonable?’ and with the good Samaritan provision, was it done ‘in good faith?’

Conclusion

The good Samaritan provisions are intended to encourage people to act on the basis of some help is better than none and to reassure people that they would not be liable.   The Ipp review said they were unnecessary and would ‘tip the scales of personal responsibility too heavily in favour of interveners and against the interests of those requiring assistance’ because they do remove considerations of whether the response is ‘reasonable’. It is intended, in fact, to encourage action in the very circumstances described that is where a person ‘confident to use the oxygen [or other] equipment could do so, with the consensus being that to do something was better than doing nothing’.

The assertion that a person would ‘forgo protections under the Good Samaritan Act if one goes beyond his or her current certification to deliver first aid’ is quite simply, wrong.

POST SCRIPT: I have previously argued that I don’t think the good Samaritan provisions are intended to apply with volunteers with organisations such as the State Emergency Service, St John Ambulance and by extension, the Rural Fire Service. For those volunteers the ‘volunteer protection’ provisions are more appropriate. I have not addressed that issue in the discussion, above, focussing instead on the issues raised by my correspondent. For the discussion on the applicability of the good Samaritan provisions to emergency service volunteers see:


Categories: Researchers

Does St John Ambulance (Vic) operate ambulances?

26 March, 2015 - 14:36

This question comes from a volunteer with St John Ambulance (Vic).  I suspect my correspondent, and other readers, will be surprised by the answer; I know I was.  I am asked:

…  there is always constant debate amongst St John members regarding a few policies such as whether our Vehicles are recognised as Ambulances/Emergency Vehicles, what our legal restrictions are on use of our beacons and sirens (where fitted) and the display of Probationary plates on vehicles as many members are part of other emergency services such as Victoria Police, CFA, Ambulance Victoria and SES and they all have conflicting views on where we stand in the law particularly in regards to our limitations while in a marked vehicle.

Some of the reasons for this confusion could be caused by some of our internal policies stipulating one thing while I have known of people to be pulled over by police and told a different thing (i.e. policy states P plates must be displayed where police have told members to remove them).

Another reason some of us are confused is due to us being able to provide emergency road transport of patients where approval is received from Victoria Police or Ambulance Victoria and our State Duty Officer.

In addition to the above there are many people that believe we are an emergency service due to St John having a role in the State Health Emergency Response Plan (SHERP) and all of our operational instructions include references to such plan.

If you have any better clarification on where St John Ambulance Victoria (Event Health Services not patient transport) stands as an emergency service that would be greatly appreciated. Please know that I’m not asking you for answers to change policy as we will always be stuck by policy but this is more of a general interest question for some of us volunteers.

Let us start with the Road Rules as they apply in Victoria.  As we know from earlier posts the national road rules provide an exemption for emergency vehicles.  Whilst the exemption is consistent across the country, what is not consistent is the definition of an ‘emergency vehicle’.  In Victoria the relevant provisions are contained in the Road Safety Road Rules 2009 (Vic).  With respect to ambulance, the dictionary attached to the rules defines ‘emergency vehicle’ as, amongst other things:

(a)     a vehicle operated by or on behalf of and under the control of—

(i)     an ambulance service created by section 23 of the Ambulance Services Act 1986 or listed in Schedule 1 to that Act; or

(ii)     an ambulance service created under a law in force in another State or in a Territory of the Commonwealth that the Minister, by notice in the Government Gazette, declares to be an ambulance service to which this paragraph applies;

(b)     a vehicle operated as an ambulance by the Australian Defence Force;…

St John Ambulance (Vic) is not mentioned in s 23 or schedule 1 so paragraph (a)(i) does not apply nor does paragraph (b).

An ambulance service includes ‘an ambulance service created under a law in force in another State or in a Territory of the Commonwealth that the Minister, by notice in the Government Gazette, declares to be an ambulance service’.  If St John Ambulance (Vic) is in fact established by a Commonwealth law (which it might be given the nature of the Priory) and the Minister has declared that it is an ‘ambulance service’ then it is an ambulance service and gains all the exemptions that brings.  I cannot find any such declaration in the Victorian Government Gazette http://www.gazette.vic.gov.au/ and the St John website refers to the entity as ‘St John Ambulance Australia (Vic) Inc… a charity that has been providing services to Victorians for 130 years’.   The 2013 annual report says ‘St John Ambulance Australia (VIC) Inc is an independent Incorporated Association’.  Neither the website nor the annual report make any specific mention of the law that establishes St John but I would infer that it is the Associations Incorporation Reform Act 2012 (Vic).  If that is correct paragraph (a)(ii) also has no application.

The Victorian rules do not have a ‘catch all’ provision that says, words to the effect that an emergency vehicle is also any vehicle approved by the licensing or registration authority as an emergency vehicle.  For example in NSW an emergency vehicle is a vehicle driven by an emergency worker and an emergency worker includes ‘a person (or a person belong to a class of persons) approved by the Authority’ (Road Rules 2014 (NSW) Dictionary, definition of ‘emergency worker’).  That sort of provision allows the Roads and Traffic Authority to approve people as emergency workers who the parliament may not have thought of.    The Victorian legislation, in its definition of ‘emergency vehicle’ grants no such power to VicRoads. In the absence of that general power to extend the definition, it must follow that an ambulance operated by St John is not an emergency vehicle for the purposes of the Victorian road rules.

Does that mean they are not allowed to have red/blue lights and/or sirens fitted? These details are set out in the vehicle standards which form Schedule 2 to the Road Safety (Vehicles) Regulation 2009 (Vic).  An ‘exempt’ vehicle may be fitted with any light or reflector (cl 118(1)).  An ‘exempt vehicle’ includes an ‘emergency vehicle’ but that has the same meaning as in the Road Safety Road Rules 2009 (Vic).   ‘A vehicle, other than an exempt vehicle, must not be fitted with any light or reflector not mentioned in the Vehicle Standards without the written approval of the Corporation’.  It follows that beacons may not be installed unless there is written approval from VicRoads and there use will be limited by the terms of that approval.  Sirens are not permitted – Road Safety (Vehicles) Regulation 2009 (Vic) reg 34.

The requirement to display ‘P’ plates is set out in the Road Safety (Drivers) Regulation 2009 (Vic) reg 55.  It says that a ‘person who holds a probationary driver licence … must not drive a motor vehicle … unless— (a)     an appropriate P plate is displayed …’.  That rule does not apply to:

(a) a police officer who, in the course of duty, is driving a motor vehicle; or

(b) a member of the Country Fire Authority who is driving a motor vehicle in the course of fire fighting operations; or

(c) driving an ambulance service or a Victoria State Emergency Service vehicle in the course of duty.

‘Ambulance service’ is not defined so could include St John Ambulance (Vic) but I think a better understanding would be that it means an ambulance service ‘created by section 23 of the Ambulance Services Act 1986 or listed in Schedule 1 to that Act’.

Non-emergency patient transport

Victoria has a system in place to licence non-emergency patient transport (NEPT) services (Non-Emergency Patient Transport Act 2003 (Vic)).  ‘St John Ambulance Victoria Patient Transport’ is a licensed NEPT provider (http://docs.health.vic.gov.au/docs/doc/List-of-NEPT-services-in-Victoria).   An NEPT provider may also be licensed to provide ‘stand-by services at public events’ (ss 35-38) but first aid providers do not have to be licensed (see Non-Emergency Patient Transport (NEPT): Stand-by services frequently asked questions).  It follows that Event Health Services do not have to be licensed under the Non-Emergency Patient Transport Act.  Even if they were it would not change the position with respect to the road rules.

Ambulance Services Act 1986 (Vic)

The Ambulance Services Act 1986 (Vic) s 39, does not make it an offence to provide ambulance services (cf Health Services Act 1997 (NSW) s 67E) rather it makes it an offence to allege any affiliation with an ambulance service or to use a name or insignia that could be confused with Victoria Ambulance.  Those offence provisions do not apply to St John (s 39(2). I do note that the Act uses the old titles of the St. John Ambulance Association and the St. John Ambulance Brigade but (without going through all the logic) we can infer that would apply to St John Ambulance (Vic) Event Health Services as the successor to those earlier titles).

One could infer from that exemption that St John Ambulance is to be accepted as an ‘ambulance service’ even though it is not mentioned in section 23 or schedule 1.  That would not help with respect to the road rules however, as an emergency vehicle is not a vehicle operated by an ‘ambulance service’ (which by implication, could include St John Ambulance (Vic), rather it is an ‘ambulance service created by section 23 of the Ambulance Services Act 1986 or listed in Schedule 1 to that Act’ and that is not St John, regardless of what inference may be drawn because of s 39(2).

Conclusion

One’s immediate response is that this must be wrong; if St John are fitting beacons and sirens to their vehicles (and I infer from my correspondent that they are) then they must have lawful authority to do so. Usually that is found in the sort of provision that would give the authority, VicRoads, the power to grant exemptions from the rules either generally or specific cases.  The Regulations (ie the various rules and regulations) could give the corporation the power to grant exemptions from various requirements (Road Safety Act 1986 (Vic) s 95(3B)) and there are some exemption provisions (for example the corporation can exempt some people from the need to wear a seat belt – Road Safety Road Rules 2009 (Vic) reg 267).  There is a relevant exemption in rule 118 of the Road Safety (Vehicles) Regulation 2009 (Vic) which allows VicRoads to authorise the installation of lights such as beacons but there is no relevant power to extend the definition of ‘emergency vehicle’ in the Rules.

If they’re not fitting beacons and sirens there is no issue, even as a marked St John vehicle it is a vehicle subject to the road rules like any other.  I note that I don’t have access to the ‘internal policy’ documents referred to by my correspondent that might give specific reference to other authority to operate a vehicle as if they were an emergency service.  I would welcome any communication from St John Victoria if that can show that I’ve gone wrong; but in the absence of any reference to a relevant law, my conclusions are:

  1. The driver of a St John vehicle must display P plates (Road Safety (Drivers) Regulation 2009 (Vic) reg 5);
  2. A St John vehicle must not be fitted with a siren (Road Safety (Vehicles) Regulation 2009 (Vic) reg 34);
  3. A St John vehicle must only be fitted with lights set out in the Road Safety (Vehicles) Regulation 2009 (Vic) Part 8—Lights And Reflectors.  It may be fitted with beacons if there is written approval from ‘the Corporation';
  4. A driver of a St John vehicle enjoys no exemption from the road rules (Road Safety Road Rules 2009 (Vic) reg 306); and
  5. A driver commits no offence for failing to give way to a St John vehicle (Road Safety Road Rules 2009 (Vic) regs 78 and 79).

Categories: Researchers

Paramedics and Patient confidentiality

26 March, 2015 - 09:29

This question comes from a Western Australia paramedic student.  They write

… a topic came up in one of my lectures regarding consent and confidentiality issues between two patients.  My lecturer was a little uncertain how to answer my question and has prompted me to contact you for your help.

Here’s the scenario…

You are called out to an incident involving two people eg. A fight or car accident where there is high probability that body fluids have been spilt and transferred between patients.

One patient has, say, Hep C and strongly asks you not to divulge this information to the other patient.

Where do we stand legally, ethically and morally in this situation?

Well it’s nice that the lecturer referred the student to this blog!  It’s often easier to work from the most extreme case and then move back so for my answer I’m going to assume the patient has HIV rather than Hep C as there are stricter laws applicable in that case.

First the paramedic is receiving confidential sensitive information regarding their patient.  The person who discloses they are HIV positive is doing that with the expectation of confidence but for some reason, we assume they are not just saying it for the sake of telling someone but because it is relevant to their health care.  The privacy principles allow the sharing of private information for the purposes for which it was given (see ‘First aid patient records – who and what are they for?’ (January 31, 2015)).  Paramedics deliver the person to hospital with a hand over to the triage nurse or doctor so it would be quite consistent with the privacy principles to record that information on the patient care record and include that in the handover to the hospital staff.

But the information is not given for the purpose of sharing it with the other person involved, in fact that is expressly refused.  Does the other person need to know?  The paramedics could give the person general advice that they may like to consult their doctor, or ask the hospital doctors if they are being transported, about the need for relevant testing as a general caution when there may have been contact with bodily fluids.  This could be done without any reference to the other person, pointing out that the paramedics always wear gloves and PPE so there is a risk in any case.

Assume however there is some need for the other patient to know the specifics.  There is some case law that says breaching confidence to prevent greater harm is OK.  In W v Egdell [1990] 1 All ER 835 (a UK case) a psychiatrist was engaged to provide an expert opinion to support a person’s application for conditional discharge from a secure mental health facility.  W was being detained after killing 5 people and injuring 2 others in a shooting incident some 10 years earlier.  The psychiatrist wrote his report in essence saying that in his opinion the prisoner was dangerous and should not be transferred to a less secure unit in anticipation of eventual release.  Not surprisingly the applicant’s lawyers did not like that report and chose not to include it in their submission.  The doctor, on becoming aware that his report was not before the Mental Health Review Tribunal, took it upon himself to breach the patient’s confidence (remembering that he had been engaged on behalf of the prisoner/patient) by sending his report directly to the Tribunal.  In an action for breach of confidence the court said the doctor’s actions were lawful. Sir Stephen Brown, President of the Court of Appeal said:

The decided cases very clearly establish:

(1) that the law recognises an important public interest in maintaining professional duties of confidence; but

2) that the law treats such duties not as absolute but as liable to be overridden where there is held to be a stronger public interest in disclosure.

In this case the public interest, and the limited nature of the disclosure, meant that W’s action for damages for breach of confidence was dismissed.

Compare that to the New Zealand case, Duncan v Medical Practitioners Disciplinary Committee [1987] 1 NZLR 513.  Dr Duncan had concern about his patient’s fitness to continue his occupation as a bus driver.  The doctor advised his patient to give up his job, which he refused to do. The doctor asked one of his other patients to help organise a petition to get his patient’s licence revoked.  The patient complained to the Medical Practitioners Disciplinary Committee that found the doctor guilty of professional misconduct and imposed a fine.  Rather than leave it there, and rather than appeal, the doctor went public on the national media (not a lot making news in New Zealand that week).   Jeffries J said

There may be occasions, they are fortunately rare, when a doctor receives information involving a patient that another’s life is immediately endangered and urgent action is required. The doctor must then exercise his professional judgment based upon the circumstances, and if he fairly and reasonably believes such a danger exists then he must act unhesitatingly to prevent injury or loss of life even if there is to be a breach of confidentiality. If his actions later are to be scrutinised as to their correctness, he can be confident any official inquiry will be by people sympathetic about the predicament he faced. However, that qualification cannot be advanced so as to attenuate, or undermine, the immeasurably valuable concept of medical confidence.”

Ultimately Dr Duncan was struck off the register of medical practitioners.

The fundamental difference between the two was who they told; Dr Edgell told the Mental Health Review Tribunal, the body that needed the information and that had the authority to act; Dr Duncan, on the other hand told the world at large.

With respect to the treatment of infectious disease, including HIV, the medical staff must notify the Executive Director, Public Health that the person they are treating has an infectious disease (Health Act 1911 (WA) s 276).  Where the disease is AIDS or HIV the notification must not include the person’s name, address or telephone number unless there are ‘reasonable grounds to believe that the patient may engage in behaviour that is likely to put other persons at risk of infection’ (s 276A).  The Executive Director may order a person suffering from an infectious disease to submit to treatment and/or to enter quarantine (s 251).

One can see that with HIV/AIDS discsloure is very limited.  Even reports to the Executive Director, Public Health do not identify the patient.  There have been cases however where Doctors have been held liable for not disclosing their patient’s HIV status to someone else.

In Harvey v PD [2004] NSWCA 97, FH (a male) and PD (a female) both attended the practice of Dr Harvey for mutual HIV tests as they were planning to get married.  The practice receptionist rang PD to confirm that here results were negative but refused to disclose FH’s results.  FH was positive and the doctor had some discussion with him about his HIV status and made an appointment with a specialist clinic but made no effort to follow upon whether he attended, whether he told PD of his results and whether or not he was taking precautions to prevent spreading the virus to PD.  Without going through all the details (as they’re not relevant to our discussion) Dr Harvey was found to have breached his duty to PD.  He did not need to tell her of FH’s status but he did need to be more proactive in his counselling of FH (as required by the Public Health Act 1991 (NSW)) and if he was not taking steps to protect FH, Dr Harvey could have referred the matter to the Department of Health in terms similar to the WA legislation cited above.

One can see that’s not applicable to our case.  Even if paramedics are treating both patients, so they are both patients of St John Ambulance (WA) they do not have the joint relationship that PD and FH had. There can be no implied consent to share results (something that was considered given PD and FH attended the practice together to get their HIV tests).  There is no suggestion that one patient’s ongoing conduct was posing a threat to the other.

What makes these cases different from the scenario painted by my correspondent is the suggestion of ongoing danger to the.  In our scenario the paramedics don’t know if the HIV patient is posing a risk to anyone else and by his conduct he’s not posing a future risk to the other person.  The other person has been exposed, or not, already, there is no threat of future risk.   The situation may be different if the call was to a fight and one person made ongoing threats about the other, for example if he asked the paramedics to leave him alone for a few minutes so he could ‘finish the job’ and showed the paramedics that he was carrying a gun.  There would be no breach in telling the police and giving a warning to colleagues and the other patient.   But that is not the case here.

I used the example of HIV as the more stringent requirements, in each state, to limit information regarding the identity of HIV patients (see Health Act 1911 (WA) s 276A discussed above).   Hepatitis C is not included in the definition of an infectious disease (Health Act 1911 (WA) s 3) but the definition does include any disease listed as an infectious disease in the Government Gazette.  Hepatitis C is listed as an infectious disease on the WA Department of Health website so has, presumably, been added to the relevant definition by proclamation.   The fact that it is an infectious disease again means it must be reported (see http://www.public.health.wa.gov.au/3/314/3/hepatitis_c.pm) so that would reinforce that it is appropriate for paramedics to tell the doctors at handover but still would not justify telling the other patient.  Hopefully the hospital will have in place processes to counsel the patient and persuade him or her to give consent to let the other person know.  If that consent is not forthcoming then the other patient can still be counselled, and offered HIV, Hepatitis and other relevant tests, and that can be put as a general precaution given the risk, without divulging the other person’s status.

Conclusion

Taking those issues into account I would conclude that telling the treating staff at the hospital is legitimate as its telling those that need to know and it’s no breach of privacy as its using the information received for the purposes for which it was received.  Telling the other patient would not however be justified.


Categories: Researchers

What if you rang 911 and no-one came?

10 March, 2015 - 14:44

This one is from the US and has been brought to my attention via a newsletter published by a US firefighter and lawyer, Larry Bennet (see http://ceas.uc.edu/aerospace/FireScience/fire-ems-safety.html).  Even though it’s from America, readers concerned about reduced staffing and vacant rosters for emergency paramedics will be interested, and dare I say surprised, by the outcome.

In Ellen Jean Mix v. Romstadt, et al., 2015-Ohio-561 neither the city of Northwood Ohio, the fire chief nor the medical director were liable for the death of a citizen who rang 911 and found that there was no-one staffing the city’s emergency ambulance.

The city ran a volunteer fire department.   There were 4 employees and two fire stations.  Fire fighters were paged when there was a fire call and were paid for their time when responding to a call.  The fire service also operated an Advanced Life Support (ALS) ambulance that was meant to be staffed 24 hours a day.

There had been a 30% cut in the department’s budget since 2010.  This had resulted in a hiring freeze, a pay reduction for volunteers and not surprisingly, a fall in the number of volunteers.   The protocol was that when a 911 call for an ambulance was received, the EMTs for the nearest station were paged; if there was no response after 7 minutes the other station was paged.  After a further 7 minutes assistance was sought from neighbouring emergency services.

On 3 March 2011 at 6.49am the appellant called for an ambulance to attend to her husband who she could not rouse.  A single responder EMT was despatched at 7.06am.  The appellant called at 7.11am to say her husband has topped breathing.  A neighbouring ‘medic unit’ was despatched at 7.13am.  Ultimately aid arrived by Mr Mix died.  Mrs Mix sued the city, the fire chief, the fire department’s medical director and others.

Under Ohio legislation, an emergency ambulance service is only liable where there is ‘wilful or wanton’ misconduct.   The trial court dismissed the action on the basis that there was no evidence that could support an allegation that ‘the parties acted in a willful/wanton or reckless manner’.  Mrs Mix appealed.

The Deputy Fire Chief gave evidence that:

… if there was a gap of any hour or two where no one had signed up he would not “go out of my way to fill one hour because of the redundancy of the system being a volunteer based system was that someone should be or hopefully would be available to respond.” Wojcinski admitted that there was no written policy or procedure in place to notify a dispatcher when the 800 unit would be unmanned. When the unit was unmanned, Wojcinski stated that it was his belief that if a dispatcher was aware of it, they would notify the volunteers…

The Fire Chief

… testified that he attempted to keep the unit manned at all times but that due to the voluntary nature of the department, if no one was available he could not fill certain gaps. This issue was compounded by the economic downturn and resulting budget cuts.

As for the budget cuts, the Mayor testified that ‘the city attempted to raise revenue on two occasions but that the voters rejected the levies’.

The outcome was that as no-one’s conduct met the ‘wanton or wilful’ misconduct standard ‘the city and its employees … are immune from liability for the unfortunate death of appellant’s husband…’

I make no claim that a similar result would or would not happen in Australia but I did think that this would be of interest given the general perception that not only do they sue for everything in America, they also win.  Certainly in terms of emergency services, as I would suggest is true in Australia, establishing a duty to rescue or respond is not easy (see also US city not liable for failure to rescue (February 13, 2013)).


Categories: Researchers

Reform of the South Australian emergency management arrangements.

6 March, 2015 - 10:10

This from a correspondent from South Australia:

The South Australian Emergency services are embarked on a reform process whereby the SAFECOM Board will be replaced by a Commissioner with the intention, according to the Minister, to avoid duplication and waste and at the same time ensure the three agencies (Metropolitan Fire Serve, State Emergency Service and Country Fire Service) work together to ensure better outcomes for the community.

Attached is a recent press release from the Minister announcing that the positions of Chief Officer for each of these services will be retained for the time being, but in a reduced capacity whereby they will be operationally focused and their respective organisation will be streamlined as non operational areas such as training and purchasing from the three services are brought together (see Press Release15_02_23 Sector_Reform).

Currently the Chief Officer of the CFS has roles which are laid down in the Fire and Emergency Services Act. In that Act he/she is nominated as the responsible person with extensive powers to, among other things, (Div 3, 60 (4)) control all resources of the CFS, manage all staff and any other function to maintain, improve or support the operation of the CFS. He/She also has extensive powers in relation to discipline and of volunteers.

When a Commissioner is appointed, he/she will in effect be the Superior Officer to the respective Chief Officers.

Is the Commissioner able to direct the respective Chief Officers  in matters such as structure (which clearly has to change to meet the ministers objectives) when the prevailing legislation states that these matters are in fact the Chief Officers prerogative? Are previous decisions in matters such as discipline under Regulation 22 (Conduct and Discipline of Members) able to be rescinded by, or otherwise varied by the Commissioner?

Could the Chief Officer of a service simply tell the Commissioner to “Butt out” of matters which are defined within the Act as the Chief Officers responsibility?

The short answer is that it is impossible to answer this question.  As my correspondent has noted the roles of the CFS Chief Officer is set out in the Fire and Emergency Services Act 2005 (SA) and the Fire And Emergency Services Regulations 2005 (SA).  Regulation 22 deals with ‘Conduct and discipline of members’ and imposes duties, obligations and powers on the Chief Officer and the Deputy Chief Officer.    What the Act does not yet do is provide for the office of Commissioner so how roles and functions will be shared across the offices remains to be seen.   What is obvious is that when a commissioner is appointed, the Fire and Emergency Services Act 2005 (SA) will not be as it is now.

Readers of this blog, particularly those form South Australia, may be interested in the model that applies in the Australian Capital Territory (the ACT).  In the ACT there is an Emergency Services Agency headed by a Commissioner (Emergencies Act 2004 (ACT) s 7), with a chief officer for each of the four emergency services – Fire and Rescue, the Rural Fire Service, the State Emergency Service and ACT Ambulance (ss 28-31).    The Commissioner is ‘responsible for the overall strategic direction and management of the emergency services and operational and administrative support to the services’ (s 8) whereas the chief officers are responsible for ‘the general management and control’ and ‘matters relating to the professional and technical expertise’ of their service (ss 28-31).

The Act does not have specific provisions dealing with the discipline or management of members but it would seem clear that this is a matter for the chief officers.  (See also “ESA commissioner criticised over Sydney Building fire” (October 28, 2014)).

Whether South Australia will adopt a similar model or not remains to be seen.


Categories: Researchers

Conflicts of interest in the NSW RFS       

5 March, 2015 - 09:35

This question again comes from a volunteer with the NSW RFS.  In answering this question we are moving away from law (which I define as the law set out in an Act of Parliament or its regulations, or the binding judicial decisions of higher courts) to matters of internal policy and management.  Having said that the power of the Commissioner to set service standards, and the obligation on members to comply with them, are both governed by law (Rural Fires Act 1997 (NSW) s 13 and Rural Fires Regulation 2013 (NSW) r 9).  The question is:

I own and operate a company which produces equipment for emergency services (primarily fire, but also SES and the like) in Australia. I am also a member of the NSWRFS and that is also the biggest market.

My questions are –

1) what are the rules with third parties like myself having an agencies uniform in photos/advertising (ie, photos sent in by users in the field featured on Facebook pages and the like) – should I be blurring crests?

2) I’m always very conscious – mainly because of my own business ethics and the difference in my head between when I’m “in uniform” and “at work” – about talking too much/ “making sales” when deployed on Regional Response Groups or interstate deployment. Are there rules about this?

3) Also, in the chance that myself or an employee are volunteering with a service (or employed for that matter!) and that service is interested in issuing our gear to its members – is there a conflict of interest in either party? (This may also apply to tradies, IT and other people doing work for services at any level)

As noted before there is no property in a spectacle; see

That means if a photo was taken of fire fighters at work and the photo was taken from a public space there can be no issue.  I won’t address the issue of ‘users in the field’ (ie firefighters) taking photos when on duty, for that discussion see the post referred to above.

Question 1:

The issue here is why you are using their photo – are you trying to imply an official endorsement?  The Australian Consumer Law (a schedule to the Competition and Consumer Act 2010 (Cth)) says, at cl 18: ‘A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.’   Note that you do not have to intend to mislead or deceive, if the conduct is likely to have that effect, it is illegal.

Using photos that show the logo of the RFS, or any other agency, could be misleading or deceptive if it was intended to implied, or could give rise to a inference, that the service was giving some endorsement to your product that they are not giving.  Of course if they have bought the kit, and use it, that is an endorsement of sorts and merely capturing that is not misleading and deceptive, it’s true – here’s a photo of the RFS using our widget.  Equally if you have photos of appliances from four services, each with your widget on the appliance, and you say ‘our widget is used by these Fire Services’ that’s not misleading and deceptive because, again, it’s true.  If the services don’t like that they may not buy your widget again and you may be in breach of some terms of the contract if they have a provision that says you can’t use their images to promote your product.   To return to my starting point, if the intention is to suggest, or it the photo is likely to cause others to believe, that the RFS is actively endorsing your product, beyond the truth that they do in fact use it, then trouble may follow.

There can’t be an intellectual property issue.  Again there is no property in a spectacle so you can take a photo of someone in uniform and use it in the press, online etc all without needing to get their permission.   One need only think of any news story involving the emergency service, sport teams, anyone in uniform etc.  The news service is using the image to sell their product (‘the news’) and to make money from that but they still don’t need permission.     The difference is that no-one would think that the RFS was ‘endorsing’ the TV News service because there is image of firefighters; but one may form a different view if the picture appears in the advertising brochure for a piece of kit.  That example is intended to show that the issue is not one of intellectual property in the image or the logo, but the impression that is being created.

There is also an offence in the State Emergency and Rescue Management Act 1989 (NSW).  Section 63B(2) says:

A person who:

(a) uses or displays emergency services organisation insignia …

with the intention to deceive is guilty of an offence.

The issue here is still an intention to deceive so it adds nothing to the discussion of the Australian Consumer Law.  Section 63B(2) would be relevant where the deception was not taking place ‘in trade and commerce’.

It follows that if the use of the photo is misleading or deceptive, or likely to mislead or deceive, then its use is illegal; otherwise it is not.

Questions 2:

The answer to this question is really found in the RFS Code of Ethics so details of what is expected should be sought from RFS officers.  Service Standard 1.1.7 Code of Conduct and Ethics says, at [4.1]:

A conflict of interest arises if it is likely that a personal interest could conflict, or be reasonably seen to conflict, with the impartial performance of our official duties and the public interest.

Paragraph [4.7] says ‘You should not use your position in the RFS for personal business benefit’.

I cannot see that talking to colleagues during a meal break about ‘what you do’ creates a conflict of interest, but trying to sell your kit could be.  If the equipment you sell is bought by individuals it would be a conflict if you went with an intention of making sales, ie carried samples, the credit card swiping machine and initiated a conversation with that aim in mind.  It would harder to see a conflict if in a discussion the subject came up – perhaps a colleague has one and you say ‘we make that’ and others then ask you about it.  What you would do then, if someone wanted to buy one, is say ‘here’s my card, call me in a couple of weeks when we’re all back at work and we can do that then…’ rather than try to conclude a sale there and then.

Equally if the kit is something larger that is bought by the service itself, then again one can see a conflict of interest if on an interstate deployment you go to members of the other service to point out what a neat piece of kit the RFS has but not, say, the CFS and maybe they should raise that with their officers to encourage the service to buy it.  It would certainly be a conflict of interest if you did that and failed to disclose that you were the manufacturer.   It’s harder to see a conflict if someone sees the item and asks about it and you say ‘actually my business makes that, let me show you how it works …’

Again the issue is intention.  Are you trying to use your position for your commercial gain – for personal business benefit – or just as part of a conversation?

Questions 3:

Absolutely; that’s a classic conflict of interest.  If you were anyway in a position to influence the decision to buy the equipment you would need to disclose that interest and excuse yourself from any decision making.  In making a tender you would need to disclose that you are a member of the RFS so the decision makers can ensure that there is no conflict and disgruntled competitors can’t allege that the contract was offered to you as a secret deal.  As the service standard says (at [4.6]-[4.8]):

Perceptions of conflicts of interest can be as important as actual conflicts of interest. Therefore, even if we do not consider that we have a conflict, it is important to consider how a reasonable person would view the situation…

If we believe that we are faced with, or could be seen to be faced with, a conflict or pecuniary interest, it is our responsibility to disclose the conflict. You must advise your manager, Director or the Commissioner who will discuss ways of resolving the conflict with you, and decide if the disclosure should be in writing. All written notifications will to be placed on the RFS’ Conflict of Interest Register.

By being upfront of one’s links with the RFS you can avoid a ‘perceived’ conflict of interest.  If the RFS is going to issue your kit to members your interest should be recorded in the Conflict of Interest Register.  That does not meant the RFS can’t buy your kit and issue it but it needs to be upfront and able to show others, including the Australian Competition and Consumer Commission, that the matter was dealt with in an open and transparent manner and that the decision to buy your kit was a legitimate decision, not influenced by your membership.

Remember this is a general discussion rather than specific.  The Service Standard really gives the answer, raise the issue and get direction from the RFS as to what they see as acceptable and what is not, register your interest in the equipment and remain mindful of the obligations in the Code of Conduct and Ethics.


Categories: Researchers

RFS brigades entering into a contract

1 March, 2015 - 19:42

The correspondent who asked ‘‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015)), now asks:

In whose name would a NSW Rural Fire Brigade, contract to purchase  capital or personal equipment and contract services when they are not forthcoming from the NSW RFS Government Agency (currently Office of NSW Rural Fire Services)?  And if it does purchase such, and there is a dispute, in whose name or right would proceedings be taken by the brigade to recover its loss?  Could the brigade do this in its own name (see – Bilpin Rural Fire Brigade v Computus Australia & Anor [2002] NSW CTT 385) or would the NSW RFS Commissioner have to do this on behalf of the brigade?)

NSW RFS brigades are not incorporated.  We also understand from the following recent post and comments that you consider that a NSW brigade has no legal status or standing outside of the NSW RFS of which it forms a part (the NSW Crown) and that it also cannot be considered to be an unincorporated association of its volunteer members; albeit, also at the same time forming part of the NSW RFS:

The Service Standard 2.1.2 we think permits a NSW RFS brigade to make such a purchase out of its accounts if it is approved by the brigade.  But however you read it – it doesn’t say in whose name the contract should be entered into (eg, Captain, xx Brigade ‘for and on behalf of the NSW Rural Fire Service’ – or xx ‘on behalf of the State of NSW’).

By asking this question we are not looking for any specific legal advice or assistance that will guide our brigade in such matters and we clearly accept that any comments and insights you can offer will be only of a general nature.   It is just that being ordinary volunteer fire-fighters we find ourselves out of our depth when it comes to legal requirements when purchasing equipment and services that the RFS cannot purchase for us, but we have funds to do it ourselves.  The Services Standards issued by the Commissioner are not very helpful to us in this.  Staff of the RFS try to be helpful; but they also say that it is a legal matter and they don’t know the answer.

A contract can only be entered by an entity with legal personality or personhood.  A natural person, you and I, is a legal person but so are artificial entities like governments and corporations.    A corporation is an entity that has been ‘incorporated’ – we think of it as meaning commercial, for profit corporations, but they needn’t be.  There are provisions, in NSW the Associations Incorporation Act 2009 to allow community groups to ‘incorporate’.  The process of incorporation creates a separate legal entity, separate from the people who created it.  This allows members to come and go without the entity changing and also the entity, rather than the individuals involved, to own property, enter contracts, sue and be sued.  This ensures that people who take a management role or invest in a corporation, are not risking their personal assets in the event of losses or liabilities.

Another way for a corporate entity to be created is via an Act of Parliament – eg the Mine Subsidence Compensation Act 1961 (NSW) provides for the creation of the Mine Subsidence Board.  Section 6 says:

The Board shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name; and shall for the purposes and subject to the provisions of this Act be capable of purchasing, holding, granting, demising, disposing of or otherwise dealing with real and personal property and of doing and suffering all such other acts and things as bodies corporate may by law do and suffer.

There is nothing in the Rural Fires Act 1997 (NSW) that says a brigade is a corporate entity.  The Act says that a brigade is to be established by a local authority or the commissioner (but as noted in an earlier post, they are, today, all created by the Commissioner; ‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015)).

If a brigade is not a legal person, it cannot enter a contract; so what should be the name for any contract?  The obvious answer is that contracts should be in the name of ‘The State of New South Wales’ as that is the relevant legal entity, but I would suggest that most brigade captains do not have the relevant delegation to enter into a contract to bind the state of NSW. Though, having said that, they or brigade presidents and treasurers will have delegations or authority, as does the executive committee to make decisions that must by implication if not express authority bind the RFS and the Crown.  Without access to the delegation manuals and administrative arrangements that the RFS has established I can’t advise on those issues.

The other thing to note is that agreements may be entered in the name of the RFS brigade and if everyone meets their obligations and everyone gets paid, it is not really an issue.  It is an issue should a contract need to be enforced, in which case the other party needs to know who they are contracting with.  It certainly does appear from the standard constitution in Service Standard 2.1.2 that brigades are expected to exercise some autonomy as if they are separate legal entities, but merely asserting that they are, or can behave in that way, doesn’t make it so.  A brigade is not a separate legal entity, but from that constitution one could identify who the contracting parties are.  If a contract was entered into with one party as the ‘Kickatinalong Rural Fire Service’ one could infer that the contract parties are all those people listed on the register.   A more appropriate contracting party would be the ‘Executive Committee of the Kickatinalong Rural Fire Service’ and one could look at the rules to determine who the members of the Committee were and therefore who were the parties to the contract.

In Bilpin Rural Fire Brigade v Computus Australia & Anor [2002] NSW CTT 385 the Bilpin Rural Fire Brigade sought a refund for a defective computer.  The presiding member of the Consumer, Trader and Tenancy Tribunal of New South Wales did not address the issue of whether or not the Bilpin Rural Fire Brigade had the legal capacity to enter into a contract as that was not an issue that was raised by any party.  The judgment does say that the Brigade has an Australian Business Number (ABN) and is a registered charity.   A search of the ABN register shows that the Brigade still has that registered ABN.  It’s hard to see on what basis they would have got an ABN (see https://abr.gov.au/For-Business,-Super-funds—Charities/Applying-for-an-ABN/ABN-entitlement/) but I don’t suggest for a moment that the issue of an ABN was not appropriate.  But issuing an ABN does not create a legal entity.

According to the Australian Charities and Not for Profits Commission, some entities cannot be registered as charities.  These include ‘a ‘government entity’ — this is part of an Australian or foreign government or one of its agencies, and some organisations established by a state or territory under a law’ (http://www.acnc.gov.au/ACNC/Register_my_charity/Who_can_register/Step4/ACNC/Reg/Step4.aspx?hkey=e61b0fe5-1507-4c50-9b1e-9a74e03e8295).   On my view that would mean a brigade could not be registered as a charity and I note that a search of the register reveals no record for the Bilpin Rural Fire Brigade using either the name or ABN so I infer it is no longer registered.

A further search of the charities register reveals the following NSW charities that use the name ‘Rural Fire Service’:

  • Gosford City Rural Fire Service Canteen;
  • Great Lakes Headquaters Rural Fire Service Catering;
  • NSW Rural Fire Service Association Incorporated;
  • NSW Rural Fire Service Catering Officers Region East;
  • NSW Rural Fire Service Welfare/Support Brigade; and
  • The Trustee for NSW Rural Fire Service & Brigades Donations Fund.

None of them are the brigades themselves and therein lies a solution.  The members of a brigade could well form a corporate entity such as the Kickatinalong Rural Fire Service Support Association.  That association could raise funds and buy equipment and either donate or lend that equipment to the relevant RFS brigade.   Whether that would be considered appropriate by the RFS or the Commissioner is another matter.

It’s certainly does appear that the Rural Fire Service Regulation 2013 (NSW) reg 4 that discusses a brigade constitution, reflects arrangements that have long since been consigned to history,.  As the commentary on earlier posts has noted, it’s not at all clear what value the constitution has as it clearly does not ‘constitute’ the brigade – the Commissioner does that (s 15).  The ‘constitution’ document could easily be called ‘Brigade Rules’ without any significant impact.


Categories: Researchers

‘How autonomous are NSW Rural Fire Brigades?’

25 February, 2015 - 12:37

It seems all my questions these days are coming from the NSW RFS.   I’m happy to field questions from other services and other states?  Until then this one is from the RFS and asks ‘How autonomous are NSW Rural Fire Brigades?’

This question has been troubling me since taking up appointment of President of my local RFB.  I can recall reading a past post in which you explained that the extent of control that the NSW Fire Commissioner could exercise over decisions taken by a local volunteer RFB about its constitution would depend on whether the RFB was formed by its Local Government Council or by the NSW RFS Commissioner.

Our Brigade, like many in its situation, was home-grown back in the 50’s.  Over the years it came under the umbrella of the NSW RFS and is grateful to be supplied by and have the active and daily support of the NSW RFS in its operational responsibilities.  It happily sees itself today as a volunteer organisation under the direct support and indirect control (but only in operational matters) of the NSW Rural Fire Commissioner.

The Brigade has no written Rules or Constitution (at least none ever made by it that I have been able to discover).  It will apparently soon have a template constitution to be mandated and imposed by the NSW RFS, but with a limited right for the Brigade to make local rules, provided they don’t contravene or conflict with the standard constitution.  None of this is yet of concern to the Brigade, but we wonder why we will soon have a constitution (not of our making) that will impose an umbrella control over how we will operate as an unincorporated volunteer emergency organisation into the future, but with a restricted capacity in a restricted time-frame to make rules (another word for constitution) provided they fit within this State-Government mandated constitution umbrella.  So, the question – How autonomous are NSW (volunteer) Rural Fire Brigades that have evolved as my local Brigade has?

I have said recently to others our brigade has the appearance of a QANGO (Quasi Autonomous Not Government Instrumentality) but is in reality today an indirect agency of the NSW Crown (NSW Executive Government) under the direction and control of the NSW Rural Fire Commissioner.  Am I correct in making this general assumption?  After all, in taking-up the offer by NSW RFS some years past to equip our Brigade with two new Cat 7’s in replacement for our old Cat 1 and to maintain the current fire-fighting vehicles at no cost to our volunteer members, how could we pretend otherwise!  That must be our operational status.  But how much freedom is left to us in all other matters, including for example the property on which we would base our operations and garage our fire-fighting vehicles and other equipment (not all of it supplied by NSW RFS)?

It would be helpful if our Brigade’s current legal status as an unincorporated association of emergency volunteers forming a Brigade under the NSW Rural Fires Act could be clarified by a more constructive legal analysis than by my current off-the-cuff remarks.

The earlier post that this correspondent referred to is ‘Constitutions for NSW RFS brigades’ (May 21, 2014).   In that post I said:

The issue of constitutions for NSW RFS brigades is dealt with in the Rural Fires Regulation 2013 (NSW) reg 4.  That regulation says ‘The constitution for a rural fire brigade is to be in a form approved by the responsible authority and is to make provision for’ amongst other things, ‘the voting rights of members of the brigade’.  Who or what is the responsible authority varies, if the brigade was formed by a local authority (under the Rural Fires Act 1997 (NSW) s 15) then the local authority is the responsible authority.  If the brigade was formed by two or more local authorities (Rural Fires Act 1997 (NSW) s 15(2)) then the responsible authority is the authority nominated in writing by the local authorities that formed the brigade.  If the brigade is formed by the Commissioner (Rural Fires Act 1997 (NSW) s 15(4)) then the responsible authority is the Commissioner (Rural Fires Regulation 2013 (NSW) reg 3, definition of ‘responsible authority’).

The Act refers to brigades formed by local authorities but, in reality, there are no such brigades.  RFS Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades says, at [1.2]:

Under section 4.2(a) of the Rural Fire District Service Agreements (RFDSAs) and sections 15 to 17 of the Rural Fires Act 1997 (the Act) the functions of the Local Authority in the formation and disbandment of Brigades has been conferred on the Commissioner of the New South Wales Rural Fire Service (NSW RFS).

The model where brigades were formed and then joined the state organisation no longer applies in NSW but it does still apply in Queensland where ‘Any group of persons may apply to the commissioner for registration as a rural fire brigade’ (Fire and Emergency Services Act 1990 (Qld) s 79).  In Western Australia bushfire brigades are still the responsibility of local government (Bush Fires Act 1954 (WA) s 41).

Today the Rural Fire Service is a public service agency within the NSW Government’s Department of Justice (Government Sector Employment Act 2013 (NSW) s 22 and Schedule 1).    As explained in the 2012 Discussion Paper – Review of Local Government Engagement with the RFS, p 4:

Under the Rural Fires Act (NSW) 1997 and the Rural Fires Regulation (NSW) 1997, the RFS was formed as a single state level/managed agency.

The Rural Fire Service consists of the Commissioner, staff and volunteer firefighters (Rural Fires Act 1997 (NSW) s 8).  It is not the case that firefighters are a member of the brigade and the brigade is somehow a member of the RFS.  The volunteers are members of the RFS and the RFS operates the brigades.   A brigade is not an ‘unincorporated volunteer emergency organisation’ (and can I suggest it wouldn’t want to be) but is part of the very much incorporated RFS.    The problem with being an unincorporated association is that any liabilities would belong to the officer holders of that association.  Incorporation creates a fictitious legal person that can sue and be sued in its own right.    As part of the RFS a brigade can’t be sued but the State of New South Wales can be (Crown Proceedings Act (NSW) s 5).

As my correspondent has noted, a brigade constitution must comply with the terms set out by the ‘responsible authority’ which as noted, is for all practical purposes, the Commissioner (Rural Fires Regulation 2013 (NSW) reg 4).   Even if brigades were still part of local government they would have to comply with services standards (Rural Fires Act 1997 (NSW) s 13 and (Rural Fires Regulation 2013 (NSW) reg 9).    The Commissioner has set out the relevant ‘template’ constitution in RFS Service Standard 2.1.2 Brigade Constitution.

Conclusion

An RFS brigade is not a QANGO.  It is not an ‘an indirect agency of the NSW Crown’.  The RFS is an agency of the Crown and the brigade is part of the RFS.  The brigade has no legal standing in its own right.   The amount of freedom left to a brigade is determined by the Commissioner and is reflected by the standard constitution set out in the service standard.   There are clauses that the brigades may draft to suit their own requirements and conditions.

It is my view that the status of a brigade is not that of ‘an unincorporated association of emergency volunteers forming a Brigade under the NSW Rural Fires Act’ rather it is a brigade formed by and as part of the Rural Fire Service.  The RFS is not some separate agency that coordinates or manages disparate brigades, there is but one service and each brigade is part of it.


Categories: Researchers

Two publications

24 February, 2015 - 12:22

When I’m not writing this blog, my full time job is as a university academic and that job involves research.  Research is tested when it is published in peer reviewed papers and conferences.   Although they have taken some time to appear, two papers that I wrote with my colleague Professor Stephen Dovers have now appeared and may be of interest.  They are:

  1. Michael Eburn and Stephen Dovers ‘Legal Aspects of Risk Management in Australia’ (2014) 4(1) Journal of Integrated Disaster Risk Management 61-72; DOI10.5595/idrim.2014.0076; and
  2. Michael Eburn and Stephen Dovers, ‘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.

Both papers are on the related theme of how better to learn from disasters.  In the first one we argue that one of the risks the emergency services are managing is the risk of being blamed after a disaster.  Focusing on that risk detracts from actually helping the community.  We argue that avoiding the temptation to ‘blame’ would go a long way to improving community safety. In the second paper we give some arguments why the Royal Commission model of post event inquiry is not the best way to identify lessons from catastrophic events.  We suggest some alternatives which are the subject of our ongoing work with the support of the Bushfire and Natural Hazards CRC.

These papers seem particularly relevant with the release of another inquiry, this time the NSW Parliamentary Inquiry into the 2013 Wambelong (or Warrumbungle National Park) fire.    I haven’t yet finished reading the report but already it appears to be pointing the finger of blame at the NPWS over their management of the park and the early response to the fire; again using the knowledge that this fire became a destructive mega fire to judge decisions that had to be made in minutes and when the actual outcome was just one of many possible outcomes.


Categories: Researchers