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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
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Red/blue lights on CFA Slip on unit revisited

21 May, 2014 - 18:24

I was asked about installing red/blue lights on a CFA unit back in November 2012 (see Red/blue lights on CFA Slip on unit https://emergencylaw.wordpress.com/2012/11/16/redblue-lights-on-cfa-slip-on-unit/). I have now been asked

In relation to an emergency vehicle in Victoria, it needs to be a “Fire Service Unit”under the control of the Country Fire Authority.

My question  - Is the ute with a slip-on unit deemed to be a fire service unit under the control of the CFA?

The problem here is that the term ‘fire service unit’ is not defined; even though the term is used in the Congestion Levy Act 2005 (Vic) s 19, the Eastlink Project Regulations 2008 (Vic) reg 4; the Melbourne City Link Regulations 2009 (Vic) reg 8 and the Road Safety (Vehicles) Regulations 2009 (Vic) Schedule 2, cl 3, definition of ‘emergency vehicle’.

With no statutory definition it’s a matter of giving the words their ordinary meaning.  The original question said “Our small CFA rural brigade owns a “slip-on” firefighting unit comprising water tank, pump and hoses. This can be loaded onto a volunteer’s ute for fire suppression during the fire season.”  Further, in that post I said: ‘We are told that the unit in question is being operated by CFA volunteers, that the slip on unit is owned by the CFA brigade but the ute is privately owned.’

In summary the slip on unit is owned by the CFA, it is placed on a ute that is operated by a CFA volunteer and is then used for fire suppression and ‘has been in use for many years, and was particularly useful on Black Saturday and its aftermath’.

Is that a fire service unit? There would be no doubt, I think, that the regulations are intended to apply to a traditional fire appliance owned and operated by the CFA or the MFB – they would be a fire service unit or nothing is.   Is the critical issue that they are owned by the service?  I don’t think so as the definition of an emergency vehicle refers to a unit that is ‘under the control of’ one of the services.  If a fire service unit had to be owned by them it would be saying, in effect, the vehicle has to be ‘owned and under the control’ of the MFB or CFA.   That would be unnecessary as it would mean that a fire appliance that has been stolen, so it is owned by but not under the control of the CFA, is not a fire service unit, but I’m sure that is not the problem they are trying to deal with (ie car thieves enjoying immunity from red lights).

The only sensible interpretation of ‘fire service unit’ has to be a unit used by the fire service for its purposes but they want to have a nice generic term to catch the various vehicles the fire services use.  One wouldn’t want to say ‘tender’ or ‘pumper’ because that would exclude something else.  Even ‘fire appliance’ may be unnecessarily limiting.   ‘Fire service unit’ must however be something more than any vehicle otherwise the regulation could say that an emergency vehicle is a ‘vehicle’ under the control of one of the fire fighting agencies.

So it’s more than any vehicle, and less than ‘any fire appliance owned by …’.   I would think that any court that had to decide the issue would look at the vehicle and its use and ask was it being used operationally.  Regardless of what is not a ‘fire service unit’ I would think it must be the case that a CFA slip on unit, attached to a vehicle being operated by a CFA volunteer during fire fighting and mop up operations is a fire service unit.

According to the Oxford Dictionaries, ‘deem’ means ‘Regard or consider in a specified way’ (http://www.oxforddictionaries.com/definition/english/deem?q=deem).  When something is deemed to be something else we are treating it as if it is that other thing when it is not.  For example in legislation dealing with animals it might say ‘for the purpose of this Act ‘dog’ includes ‘cat’’ so one could say a cat is deemed to be a dog when clearly a cat is not a dog.

I do not think a a slip-on unit would be ‘deemed to be a fire service unit under the control of the CFA’ I think it is a fire service unit under the control of the CFA.


Categories: Researchers

Red/blue lights on CFA Slip on unit revisited

21 May, 2014 - 18:24

I was asked about installing red/blue lights on a CFA unit back in November 2012 (see Red/blue lights on CFA Slip on unit http://emergencylaw.wordpress.com/2012/11/16/redblue-lights-on-cfa-slip-on-unit/#comments). I have now been asked

In relation to an emergency vehicle in Victoria, it needs to be a “Fire Service Unit”under the control of the Country Fire Authority.

My question  - Is the ute with a slip-on unit deemed to be a fire service unit under the control of the CFA?

The problem here is that the term ‘fire service unit’ is not defined; even though the term is used in the Congestion Levy Act 2005 (Vic) s 19, the Eastlink Project Regulations 2008 (Vic) reg 4; the Melbourne City Link Regulations 2009 (Vic) reg 8 and the Road Safety (Vehicles) Regulations 2009 (Vic) Schedule 2, cl 3, definition of ‘emergency vehicle’.

With no statutory definition it’s a matter of giving the words their ordinary meaning.  The original question said “Our small CFA rural brigade owns a “slip-on” firefighting unit comprising water tank, pump and hoses. This can be loaded onto a volunteer’s ute for fire suppression during the fire season.”  Further, in that post I said: ‘We are told that the unit in question is being operated by CFA volunteers, that the slip on unit is owned by the CFA brigade but the ute is privately owned.’

In summary the slip on unit is owned by the CFA, it is placed on a ute that is operated by a CFA volunteer and is then used for fire suppression and ‘has been in use for many years, and was particularly useful on Black Saturday and its aftermath’.

Is that a fire service unit? There would be no doubt, I think, that the regulations are intended to apply to a traditional fire appliance owned and operated by the CFA or the MFB – they would be a fire service unit or nothing is.   Is the critical issue that they are owned by the service?  I don’t think so as the definition of an emergency vehicle refers to a unit that is ‘under the control of’ one of the services.  If a fire service unit had to be owned by them it would be saying, in effect, the vehicle has to be ‘owned and under the control’ of the MFB or CFA.   That would be unnecessary as it would mean that a fire appliance that has been stolen, so it is owned by but not under the control of the CFA, is not a fire service unit, but I’m sure that is not the problem they are trying to deal with (ie car thieves enjoying immunity from red lights).

The only sensible interpretation of ‘fire service unit’ has to be a unit used by the fire service for its purposes but they want to have a nice generic term to catch the various vehicles the fire services use.  One wouldn’t want to say ‘tender’ or ‘pumper’ because that would exclude something else.  Even ‘fire appliance’ may be unnecessarily limiting.   ‘Fire service unit’ must however be something more than any vehicle otherwise the regulation could say that an emergency vehicle is a ‘vehicle’ under the control of one of the fire fighting agencies.

So it’s more than any vehicle, and less than ‘any fire appliance owned by …’.   I would think that any court that had to decide the issue would look at the vehicle and its use and ask was it being used operationally.  Regardless of what is not a ‘fire service unit’ I would think it must be the case that a CFA slip on unit, attached to a vehicle being operated by a CFA volunteer during fire fighting and mop up operations is a fire service unit.

According to the Oxford Dictionaries, ‘deem’ means ‘Regard or consider in a specified way’ (http://www.oxforddictionaries.com/definition/english/deem?q=deem).  When something is deemed to be something else we are treating it as if it is that other thing when it is not.  For example in legislation dealing with animals it might say ‘for the purpose of this Act ‘dog’ includes ‘cat’’ so one could say a cat is deemed to be a dog when clearly a cat is not a dog.

I do not think a a slip-on unit would be ‘deemed to be a fire service unit under the control of the CFA’ I think it is a fire service unit under the control of the CFA.


Categories: Researchers

Bushfires; the price we pay for electricity

20 May, 2014 - 09:39

“Blue Mountains bushfire victims to launch class action” is the heading of a story appearing in today’s Blue Mountains Gazette (20 May 2014). According to the report “Victims of the October 2013 Springwood, Winmalee and Yellow Rock bushfires are launching a class action against power company Endeavour Energy, worth an estimated $200 million”.  Further details of the action will, we’re told, be released and reported tomorrow (and see now B.C Lewis and Jennie Curtin ‘Blue Mountains bushfire class action lodged against Endeavour Energy’ Blue Mountains Gazette, 21 May 2014).

Pending the release of the details of the proposed class action, it is worth recalling that the ABC program ‘Four Corners – Fire in the Wire’ (Monday 28 October 2013) revealed the extent to which electrical assets have caused devastating bushfires in Australia. In the pre-show advertising they said “Four Corners examines the evidence gathered over four decades documenting the causes of our biggest fires. The figures will shock you.”

What else may be shocking are the legal consequences, or more importantly, the lack of consequences that flow from fires that have been caused by electrical assets. Research I conducted with my colleague, Professor Steve Dovers, and funded by the Bushfire Cooperative Research Centre, looked at civil liability arising from bushfires. Despite a belief that litigation is a modern phenomenon, people have been suing over bushfires since the 1860s. Originally the defendants were landowners who were being sued for negligently starting or failing to control a fire. From 1884 Railway operators began to be seen as defendants as steam trains were a frequent source of ignition. From 1977 we began to see electrical authorities as defendants and, from 2005, actions have been run (so far unsuccessfully) against fire services and land management agencies (see Eburn, M and Dovers, S., ‘Australian wildfire litigation’ (2012) 21 International Journal of Wildland Fire 488–497).

The growth of the world-wide-web means it is now possible to find details of cases that are started, came before the court for some procedural issue but ultimately settled. With access to that material we can see that electrical authorities were sued following Victoria’s devastating grass fires of 1977 and the 1983 Ash Wednesday fires in South Australia (see Wollington v State Electricity Commission [1979] VR 115; Wollington v State Electricity Commission [1980] VR 91; Ballantyne v ETSA [1993] SASC 4275; May v ETSA [1993] SASC 4149; Seas Sapfor Forests v ETSA [1993] SASC 4004; Seas Sapfor v ETSA [1996] SASC 5718; SA Electricity v Union Insurance (Unreported, Supreme Court of South Australia, Perry J 9 July 1997); Telfer v Flinders Council; ETSA 3rd party [1999] SASC 42; Telfer v Flinders Council; ETSA 3rd party [1999] SASC 117; Telfer v Flinders Council; ETSA 3rd party [1999] SASC 142. A detailed, annotated table of post-bushfire cases, including those against the electrical authorities can be found on the Bushfire CRC website).

Following the 2009 Black Saturday fires there has been claims against the electrical distributors and most of them have also settled (see Place v Powercor Aust Ltd [2013] VSC 6; Matthews v SPI Electricity (Ruling No 16) [2013] VSC 74; Mercieca v SPI Electricity [2012] VSC 204; Thomas v Powercor Australia [2011] VSC 614 and David Chen, ‘Court Approves $40m Black Saturday fire payout’, ABC Online, 5 December 2011.) In the ongoing class action, Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd , the electricity authorities have joined various state agencies (in particular the Country Fire Authority and Victoria Police) to try and diffuse the liability so that makes that case more complex and may be one factor that helps explain why that case has not settled.

Cases settle for many reasons but at some level the parties have to decide that settling the matter is in their best interests. For a defendant a settlement can be in its best interests if it believes that the costs of settling the matter are likely to be less than the costs of running the matter before a court. This will certainly be true if the defendant believes they it does not have a legal defence. A defendant may also not want to run a matter before a court because it does not want a definitive ruling on whether or not it is legally liable. A settlement does not determine legal rights in the way a judicial determination does and the terms of settlement will often say that the settlement is made without admitting that the defendant is legally liable. Settling a case will also remove an unwanted distraction and relieve staff from the need to prepare for, and go to, court and will, instead, allow them to focus on the defendant’s core business – in this context the delivery of electricity.

What we do know is that, notwithstanding these fires and these claims, the defendant electrical authorities are not making a loss. SP Aus Net’s electricity distribution business made a net profit after tax of:

  • $157.5 million in 2008;
  • $146.9 million in 2009;
  • $209.0 million in 2010;
  • $252.9 million in 2011; and
  • $255.0 million in 2012.

In terms of liability, the 2011 annual report (at p 122) notes that “SP AusNet has liability insurance which specifically provides cover for bushfire liability.” It follows that any damages payable from the current class action will, to the extent of their insurance cover, be met by their insurer rather than from SP Aus Net’s income and profits. In 2009 and 2010 the provision for uninsured losses was a mere $1.4 and $1.6 million respectively, and no separate allowance is reported in the 2011 annual report. It is not known who SP’s Insurers are but there has not been any public failure of any insurance company following the Black Saturday fires.

What we can infer is that notwithstanding the catastrophic destruction brought in 2009, neither the electrical authorities nor their insurers, are making a loss; they continue to do their work and return a profit for their shareholders. Causing a bushfire, even a fatal bushfire, appears to be part of the costs of running an electricity business in Australia, or at least Victoria.

In ‘Four Corners’ the ABC asked “why have public officials disregarded the lessons of the past that may have prevented our most disastrous fires and we look at the factors holding back changes that might well protect the community in the future?” The answer may be that this cost is a cost the community is prepared to pay.

Following the Royal Commission into the 2009 Victorian bushfires it was recommended (Recommendations 27 and 32) that overhead power lines be buried and also electricity authorities reset their power grid to disconnect the power after a single failure, rather than after three. The authorities had said that automatic circuit reclosers would recharge a power line after a fault in case it was a minor fault that had fixed itself. This process would ensure continued supply to the company’s customers. If the line failed three times then the power was shut off until it could be inspected and the problem solved.

In making its recommendation the Royal Commission noted (Final Report, Volume II, Chapter 4, p 171):

The need for a policy change in relation to ACR [automatic circuit recloser] suppression is graphically illustrated by the Kilmore East fire, which started because an ACR reclosed when there was a permanent fault on the line. That ACR was left in service in an effort to improve the reliability of supply on a SWER [Single Wire Earth Return] line that served just 20 customers, yet the resulting fire claimed the lives of 119 people.

With respect to their recommendation, the Royal Commission said (at p 172):

To the extent that there is a decrease in the reliability of supply to SWER line customers, there is a corresponding benefit to those same customers in that the likelihood of fire starting in their area will be reduced.

An implementation task force was established to look into the recommendations from the Royal Commission. With respect to the recommendation to bury powerlines, the Powerline Bushfire Safety Taskforce (pp 8-11) reported that the community would not accept the increased electricity charges that would be required to meet that obligation.

As for the suggestion to reduce the reliability of supply by disabling automatic circuit reclosers, the Taskforce reported (p 70-71) that again the community would not tolerate losing power on high fire danger days.
Aware of the risk posed by electrical supply assets, the South Australian power supply company, ETSA, disconnected the power supply on a particularly bad fire weather day in January 2012 but this decision was not without criticism (‘Power cuts as state endures scorcher’ ABC News, 2 January 2012; ‘ETSA defends decision to cut power’ ABC News, 3 January 2012). An ETSA spokesperson is quoted as saying:

“We recognise there is inconvenience but we recognise that at the end of the day we have … to make these decisions and we have to make them in real time in emerging circumstances to protect lives and property.

He says the decision to cut power was the right one.”

ETSA may have believed it was doing the right thing when it disconnected the power but to reduce the risk to human life, regardless of the inconvenience, but even that is not without controversy. In research published in the Medical Journal of Australia Richard Broome and Wayne Smith report on their study of the likely public health effects of cutting off the power (Broome R, and Smith, W., ‘The definite health risks from cutting power outweigh possible bushfire prevention benefits’ (197(8) Medical Journal of Australia 440-441; see also my earlier blog-post: ‘Electricity authorities, out of the frying pan and into the fire?‘ (October 19, 2012)).  Broome and Smith argue that ensuring power supply is necessary to maintain air conditioning as well as life sustaining equipment:

An important omission from the health and safety arguments … is a discussion of the role of air conditioning in preventing heat-related illness. Days of high fire danger are generally very hot and therefore likely to be associated with high rates of heat-related morbidity and mortality. For example, the Victorian government estimated that the 7-day heatwave preceding the February 2009 bushfires caused 374 deaths, a 62% increase above the baseline mortality rate…

Deaths from heat outweigh direct deaths from catastrophic bushfires … So from a public health perspective, power cuts are more likely to lead to adverse health outcomes than maintaining power on potentially catastrophic bushfire days…

What can be inferred from this discussion is:

  1. Fires are regularly started by electrical assets.
  2. So far, legal claims for compensation against the electrical authorities have settled out of court which suggests that the authorities see the cost of paying out as more economic than the cost of defending these actions; and they’re still making a profit.
  3. Generally the community is not willing to tolerate the increased electricity costs, and loss of reliability that would be required to decrease the risk of electrically caused fires. And if Broome and Smith are correct, reducing the reliability of the power supply may cause more deaths from heat related events than are killed from the impact of fire.

It appears that the risk of fires such as those seen on Ash Wednesday (1983), Black Saturday (2009) and now Sydney 2013 is the price we the community pay, and are prepared to pay, to have a relatively cheap, highly reliable electrical supply.


Categories: Researchers

Bushfires; the price we pay for electricity

20 May, 2014 - 09:39

“Blue Mountains bushfire victims to launch class action” is the heading of a story appearing in today’s Blue Mountains Gazette (20 May 2014). According to the report “Victims of the October 2013 Springwood, Winmalee and Yellow Rock bushfires are launching a class action against power company Endeavour Energy, worth an estimated $200 million”.  Further details of the action will, we’re told, be released and reported tomorrow.

Pending the release of the details of the proposed class action, it is worth recalling that the ABC program ‘Four Corners – Fire in the Wire’ (Monday 28 October 2013) revealed the extent to which electrical assets have caused devastating bushfires in Australia. In the pre-show advertising they said “Four Corners examines the evidence gathered over four decades documenting the causes of our biggest fires. The figures will shock you.”

What else may be shocking are the legal consequences, or more importantly, the lack of consequences that flow from fires that have been caused by electrical assets. Research I conducted with my colleague, Professor Steve Dovers, and funded by the Bushfire Cooperative Research Centre, looked at civil liability arising from bushfires. Despite a belief that litigation is a modern phenomenon, people have been suing over bushfires since the 1860s. Originally the defendants were landowners who were being sued for negligently starting or failing to control a fire. From 1884 Railway operators began to be seen as defendants as steam trains were a frequent source of ignition. From 1977 we began to see electrical authorities as defendants and, from 2005, actions have been run (so far unsuccessfully) against fire services and land management agencies (see Eburn, M and Dovers, S., ‘Australian wildfire litigation’ (2012) 21 International Journal of Wildland Fire 488–497).

The growth of the world-wide-web means it is now possible to find details of cases that are started, came before the court for some procedural issue but ultimately settled. With access to that material we can see that electrical authorities were sued following Victoria’s devastating grass fires of 1977 and the 1983 Ash Wednesday fires in South Australia (see Wollington v State Electricity Commission [1979] VR 115; Wollington v State Electricity Commission [1980] VR 91; Ballantyne v ETSA [1993] SASC 4275; May v ETSA [1993] SASC 4149; Seas Sapfor Forests v ETSA [1993] SASC 4004; Seas Sapfor v ETSA [1996] SASC 5718; SA Electricity v Union Insurance (Unreported, Supreme Court of South Australia, Perry J 9 July 1997); Telfer v Flinders Council; ETSA 3rd party [1999] SASC 42; Telfer v Flinders Council; ETSA 3rd party [1999] SASC 117; Telfer v Flinders Council; ETSA 3rd party [1999] SASC 142. A detailed, annotated table of post-bushfire cases, including those against the electrical authorities can be found on the Bushfire CRC website).

Following the 2009 Black Saturday fires there has been claims against the electrical distributors and most of them have also settled (see Place v Powercor Aust Ltd [2013] VSC 6; Matthews v SPI Electricity (Ruling No 16) [2013] VSC 74; Mercieca v SPI Electricity [2012] VSC 204; Thomas v Powercor Australia [2011] VSC 614 and David Chen, ‘Court Approves $40m Black Saturday fire payout’, ABC Online, 5 December 2011.) In the ongoing class action, Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd , the electricity authorities have joined various state agencies (in particular the Country Fire Authority and Victoria Police) to try and diffuse the liability so that makes that case more complex and may be one factor that helps explain why that case has not settled.

Cases settle for many reasons but at some level the parties have to decide that settling the matter is in their best interests. For a defendant a settlement can be in its best interests if it believes that the costs of settling the matter are likely to be less than the costs of running the matter before a court. This will certainly be true if the defendant believes they it does not have a legal defence. A defendant may also not want to run a matter before a court because it does not want a definitive ruling on whether or not it is legally liable. A settlement does not determine legal rights in the way a judicial determination does and the terms of settlement will often say that the settlement is made without admitting that the defendant is legally liable. Settling a case will also remove an unwanted distraction and relieve staff from the need to prepare for, and go to, court and will, instead, allow them to focus on the defendant’s core business – in this context the delivery of electricity.

What we do know is that, notwithstanding these fires and these claims, the defendant electrical authorities are not making a loss. SP Aus Net’s electricity distribution business made a net profit after tax of:

  • $157.5 million in 2008;
  • $146.9 million in 2009;
  • $209.0 million in 2010;
  • $252.9 million in 2011; and
  • $255.0 million in 2012.

In terms of liability, the 2011 annual report (at p 122) notes that “SP AusNet has liability insurance which specifically provides cover for bushfire liability.” It follows that any damages payable from the current class action will, to the extent of their insurance cover, be met by their insurer rather than from SP Aus Net’s income and profits. In 2009 and 2010 the provision for uninsured losses was a mere $1.4 and $1.6 million respectively, and no separate allowance is reported in the 2011 annual report. It is not known who SP’s Insurers are but there has not been any public failure of any insurance company following the Black Saturday fires.

What we can infer is that notwithstanding the catastrophic destruction brought in 2009, neither the electrical authorities nor their insurers, are making a loss; they continue to do their work and return a profit for their shareholders. Causing a bushfire, even a fatal bushfire, appears to be part of the costs of running an electricity business in Australia, or at least Victoria.

In ‘Four Corners’ the ABC asked “why have public officials disregarded the lessons of the past that may have prevented our most disastrous fires and we look at the factors holding back changes that might well protect the community in the future?” The answer may be that this cost is a cost the community is prepared to pay.

Following the Royal Commission into the 2009 Victorian bushfires it was recommended (Recommendations 27 and 32) that overhead power lines be buried and also electricity authorities reset their power grid to disconnect the power after a single failure, rather than after three. The authorities had said that automatic circuit reclosers would recharge a power line after a fault in case it was a minor fault that had fixed itself. This process would ensure continued supply to the company’s customers. If the line failed three times then the power was shut off until it could be inspected and the problem solved.

In making its recommendation the Royal Commission noted (Final Report, Volume II, Chapter 4, p 171):

The need for a policy change in relation to ACR [automatic circuit recloser] suppression is graphically illustrated by the Kilmore East fire, which started because an ACR reclosed when there was a permanent fault on the line. That ACR was left in service in an effort to improve the reliability of supply on a SWER [Single Wire Earth Return] line that served just 20 customers, yet the resulting fire claimed the lives of 119 people.

With respect to their recommendation, the Royal Commission said (at p 172):

To the extent that there is a decrease in the reliability of supply to SWER line customers, there is a corresponding benefit to those same customers in that the likelihood of fire starting in their area will be reduced.

An implementation task force was established to look into the recommendations from the Royal Commission. With respect to the recommendation to bury powerlines, the Powerline Bushfire Safety Taskforce (pp 8-11) reported that the community would not accept the increased electricity charges that would be required to meet that obligation.

As for the suggestion to reduce the reliability of supply by disabling automatic circuit reclosers, the Taskforce reported (p 70-71) that again the community would not tolerate losing power on high fire danger days.
Aware of the risk posed by electrical supply assets, the South Australian power supply company, ETSA, disconnected the power supply on a particularly bad fire weather day in January 2012 but this decision was not without criticism (‘Power cuts as state endures scorcher’ ABC News, 2 January 2012; ‘ETSA defends decision to cut power’ ABC News, 3 January 2012). An ETSA spokesperson is quoted as saying:

“We recognise there is inconvenience but we recognise that at the end of the day we have … to make these decisions and we have to make them in real time in emerging circumstances to protect lives and property.

He says the decision to cut power was the right one.”

ETSA may have believed it was doing the right thing when it disconnected the power but to reduce the risk to human life, regardless of the inconvenience, but even that is not without controversy. In research published in the Medical Journal of Australia Richard Broome and Wayne Smith report on their study of the likely public health effects of cutting off the power (Broome R, and Smith, W., ‘The definite health risks from cutting power outweigh possible bushfire prevention benefits’ (197(8) Medical Journal of Australia 440-441; see also my earlier blog-post: ‘Electricity authorities, out of the frying pan and into the fire?‘ (October 19, 2012)).  Broome and Smith argue that ensuring power supply is necessary to maintain air conditioning as well as life sustaining equipment:

An important omission from the health and safety arguments … is a discussion of the role of air conditioning in preventing heat-related illness. Days of high fire danger are generally very hot and therefore likely to be associated with high rates of heat-related morbidity and mortality. For example, the Victorian government estimated that the 7-day heatwave preceding the February 2009 bushfires caused 374 deaths, a 62% increase above the baseline mortality rate…

Deaths from heat outweigh direct deaths from catastrophic bushfires … So from a public health perspective, power cuts are more likely to lead to adverse health outcomes than maintaining power on potentially catastrophic bushfire days…

What can be inferred from this discussion is:

  1. Fires are regularly started by electrical assets.
  2. So far, legal claims for compensation against the electrical authorities have settled out of court which suggests that the authorities see the cost of paying out as more economic than the cost of defending these actions; and they’re still making a profit.
  3. Generally the community is not willing to tolerate the increased electricity costs, and loss of reliability that would be required to decrease the risk of electrically caused fires. And if Broome and Smith are correct, reducing the reliability of the power supply may cause more deaths from heat related events than are killed from the impact of fire.

It appears that the risk of fires such as those seen on Ash Wednesday (1983), Black Saturday (2009) and now Sydney 2013 is the price we the community pay, and are prepared to pay, to have a relatively cheap, highly reliable electrical supply.


Categories: Researchers

AEMI Mt Macedon to become a virtual shadow of itself

14 May, 2014 - 09:43

I was very disappointed to read this (among other disappointing things) in the 2014 Budget Papers (http://www.budget.gov.au/2014-15/content/bp2/html/bp2_expense-05.htm)

The Government will achieve savings of $0.9 million over four years by transitioning the Australian Emergency Management Institute (AEMI) into a ‘virtual’ institute.

The AEMI will continue to be a Centre of Excellence for knowledge and capability development in the national emergency management sector providing a range of education, training, professional development, information, research and community awareness services to the nation and our region. The transition will allow AEMI greater flexibility to deliver emergency management training.

Now I’m all for distance education but one of the great things of AEMI is that is has not been ‘virtual’ – rather it’s been a place to bring together people in the emergency services and emergency management, often volunteers, so they can meet those from other services and other states and build the connections and understanding that are so vital when a major response is required. The Senior officers have those connections but making them available to a broad range of people is essential for developing capacity in the emergency services, and now is something to be lost.

Presumably the iconic college, that has been part of the Civil Defence/Emergency Management industry since 1956, will be sold off and what is to happen to the staff? Residential staff will no doubt lose their work but what of the educators with all those years of experience both in the sector and in training the sector? Will they be retained to maintain the ‘Centre of Excellence’ but will that require a move to Melbourne or Canberra? Or will that training function be outsourced to the lowest bidder?

I see other relevant budget outcomes are
‘The AFP will cease recruitment of additional sworn officers at the end of the 2013‑14 financial year’;
‘The Government will provide up to $1.0 million for Personal Hardship Payments under a 50:50 cost‑sharing arrangement with the Victorian Government for those affected by the open cut coal mine fire that started on 9 February 2014. This is in addition to the $1.0 million in payments provided to victims of the September 2013 NSW bushfires through the Australian Government Disaster Recovery Payment Programme… The payment to Victoria will be made under the Natural Disaster Relief and Recovery Arrangements. Provision for the NSW bushfires has been met from within existing resources of the Attorney‑General’s Department.’;
‘The Government will provide $15.0 million over three years from 2014‑15 to states and territories to implement long term bushfire mitigation strategies and better fuel reduction programmes. This will contribute to safer, more resilient communities, which are better able to prepare for, respond to and withstand the impacts and effects of bushfires.’

For further analysis of the budget see Australian Federal Budget: Bad News for Disasters by Casus Calamitas Consulting.


Categories: Researchers

AEMI Mt Macedon to become a virtual shadow of itself

14 May, 2014 - 09:43

I was very disappointed to read this (among other disappointing things) in the 2014 Budget Papers (http://www.budget.gov.au/2014-15/content/bp2/html/bp2_expense-05.htm)

The Government will achieve savings of $0.9 million over four years by transitioning the Australian Emergency Management Institute (AEMI) into a ‘virtual’ institute.

The AEMI will continue to be a Centre of Excellence for knowledge and capability development in the national emergency management sector providing a range of education, training, professional development, information, research and community awareness services to the nation and our region. The transition will allow AEMI greater flexibility to deliver emergency management training.

Now I’m all for distance education but one of the great things of AEMI is that is has not been ‘virtual’ – rather it’s been a place to bring together people in the emergency services and emergency management, often volunteers, so they can meet those from other services and other states and build the connections and understanding that are so vital when a major response is required. The Senior officers have those connections but making them available to a broad range of people is essential for developing capacity in the emergency services, and now is something to be lost.

Presumably the iconic college, that has been part of the Civil Defence/Emergency Management industry since 1956, will be sold off and what is to happen to the staff? Residential staff will no doubt lose their work but what of the educators with all those years of experience both in the sector and in training the sector? Will they be retained to maintain the ‘Centre of Excellence’ but will that require a move to Melbourne or Canberra? Or will that training function be outsourced to the lowest bidder?

I see other relevant budget outcomes are
‘The AFP will cease recruitment of additional sworn officers at the end of the 2013‑14 financial year’;
‘The Government will provide up to $1.0 million for Personal Hardship Payments under a 50:50 cost‑sharing arrangement with the Victorian Government for those affected by the open cut coal mine fire that started on 9 February 2014. This is in addition to the $1.0 million in payments provided to victims of the September 2013 NSW bushfires through the Australian Government Disaster Recovery Payment Programme… The payment to Victoria will be made under the Natural Disaster Relief and Recovery Arrangements. Provision for the NSW bushfires has been met from within existing resources of the Attorney‑General’s Department.’;
‘The Government will provide $15.0 million over three years from 2014‑15 to states and territories to implement long term bushfire mitigation strategies and better fuel reduction programmes. This will contribute to safer, more resilient communities, which are better able to prepare for, respond to and withstand the impacts and effects of bushfires.’

For further analysis of the budget see Australian Federal Budget: Bad News for Disasters by Casus Calamitas Consulting.


Categories: Researchers

Passage of the Public Safety Business Agency Bill 2014 (Qld).

8 May, 2014 - 11:40

This Bill passed through the Queensland legislative assembly on Tuesday 6 May 2014. The Bill represents some significant reforms of emergency service legislation in that State. The Bill gives effect to the recommendations from the Keelty review of Queensland’s emergency management arrangements.

Public Safety Business Agency
The Bill creates the Public Safety Business Agency to provide common administrative and support services to Queensland’s public safety agencies, which are the Queensland Fire and Emergency Service, the government department responsible for administering the Fire and Emergency Services Act 1990, Queensland Police and the Office of the Inspector-General of Emergency Management (Public Safety Business Agency Bill 2014 (Qld) s 5).

Inspector-General of Emergency Management
The Bill amends the Disaster Management Act 2003 by introducing a new Part 1A that creates the office of Inspector-General of Emergency Management. The Inspector-General is, amongst other things, to:

• Review and assess the effectiveness of disaster management arrangements at State, district and local levels;
• Review and assess cooperation between, and the performance of, agencies involved in disaster management including whether systems and procedures are compatible and whether there are opportunities for cooperative partnerships to improve disaster management performance;
• Set disaster management standards;
• Improve disaster management capabilities, including volunteer capabilities;
• Monitor compliance by departments with disaster management responsibilities.

Queensland Fire and Emergency Service
The Bill amends the Fire and Rescue Service Act 1990 (Qld) firstly by changing the name of that Act to the Fire and Emergency Service Act 1990 (Qld). The Bill transfers responsibility for the State Emergency Service from the Department and the old Emergency Management Queensland (EMQ) to the new Fire and Emergency Service.

It is now the responsibility of the Commissioner of the Queensland Fire and Emergency Service (formerly the Queensland Fire and Rescue Service) to establish SES units and appoint members and local controllers. The Act does not, however, provide for district management of the SES. Under Queensland legislation it is local government that are primarily responsible for disaster management within their area (Disaster Management Act 2003 (Qld) ss 29-37). Where a disaster event crosses local government boundaries and the event exceeds the capacity of the local units, and then the Commissioner may appoint an SES coordinator ‘to coordinate the performance of SES functions in the local government areas’. This is a temporary appointment and is terminated ‘if the commissioner considers it is no longer necessary for an SES coordinator to be appointed’. It would appear that this person may be filling the sort of role that in other states would be filled by a region or district controller but there is no provision for a ‘standing’ officer or permanent appointment at that level.

The Commissioner could appoint someone as a regional officer to exercise the commissioner’s powers with respect to the SES units and to avoid him or her having to deal with every unit, but that position would be an administrative and support position rather than an operational position. That person may be the ideal candidate for appointment, as the SES coordinator should the need arise but that operational appointment would be dependent upon the impact of the significant, overwhelming event.

All the other provisions regarding the SES and Emergency Service Units appear to be transferred from the current Disaster Management Act so those services should be able to continue as they have been, just under a different department and commander.

The Bill will allow the Commissioner to charge for fire fighting services. The charges will be set by regulation or by the Commissioner. Where the Commissioner sets a charge it must ‘be reasonable and not more than the actual cost of providing the service’. The person for whose benefit the service is provided and the person who causes the fire or other incident are liable to pay the charges though, presumably, they may be the subject of insurance so if your house catches fire one would expect your household insurer to pick up that charge as well as the cost of repairing the home. The issue will be if you are not insured and for people who ‘cause’ a fire or incident. If the New Zealand model is applied, such charges are not covered by insurance (in New Zealand where the fire is negligently or deliberately lit). The cost of dealing with a fire may well exceed the cost of the damage done, as the fire brigades may be effective in limiting the damage, so these types of provisions can impose a very significant cost on those who ‘cause’ fires or other incidents (see Charging for fire response, 18 February 2013). The Commissioner can waive the charges if he or she is ‘satisfied waiving the charge, or part of the charge, is reasonable in the circumstances’. It will be interesting to see how these provisions are applied both by governments and the courts once the Bill takes effect.

When does the Bill take effect?
The answer to that is not obvious; there is no section that says ‘This Act commences on…’. Presumably therefore the Act will commence operation when it receives Royal Assent (that is when it is approved by the Governor). It will be up to the Government to determine when that occurs so they can hold off, should they wish, the start of the Act to ensure that all the necessary administrative arrangements are in place.


Categories: Researchers

Passage of the Public Safety Business Agency Bill 2014 (Qld).

8 May, 2014 - 11:40

This Bill passed through the Queensland legislative assembly on Tuesday 6 May 2014. The Bill represents some significant reforms of emergency service legislation in that State. The Bill gives effect to the recommendations from the Keelty review of Queensland’s emergency management arrangements.

Public Safety Business Agency
The Bill creates the Public Safety Business Agency to provide common administrative and support services to Queensland’s public safety agencies, which are the Queensland Fire and Emergency Service, the government department responsible for administering the Fire and Emergency Services Act 1990, Queensland Police and the Office of the Inspector-General of Emergency Management (Public Safety Business Agency Bill 2014 (Qld) s 5).

Inspector-General of Emergency Management
The Bill amends the Disaster Management Act 2003 by introducing a new Part 1A that creates the office of Inspector-General of Emergency Management. The Inspector-General is, amongst other things, to:

• Review and assess the effectiveness of disaster management arrangements at State, district and local levels;
• Review and assess cooperation between, and the performance of, agencies involved in disaster management including whether systems and procedures are compatible and whether there are opportunities for cooperative partnerships to improve disaster management performance;
• Set disaster management standards;
• Improve disaster management capabilities, including volunteer capabilities;
• Monitor compliance by departments with disaster management responsibilities.

Queensland Fire and Emergency Service
The Bill amends the Fire and Rescue Service Act 1990 (Qld) firstly by changing the name of that Act to the Fire and Emergency Service Act 1990 (Qld). The Bill transfers responsibility for the State Emergency Service from the Department and the old Emergency Management Queensland (EMQ) to the new Fire and Emergency Service.

It is now the responsibility of the Commissioner of the Queensland Fire and Emergency Service (formerly the Queensland Fire and Rescue Service) to establish SES units and appoint members and local controllers. The Act does not, however, provide for district management of the SES. Under Queensland legislation it is local government that are primarily responsible for disaster management within their area (Disaster Management Act 2003 (Qld) ss 29-37). Where a disaster event crosses local government boundaries and the event exceeds the capacity of the local units, and then the Commissioner may appoint an SES coordinator ‘to coordinate the performance of SES functions in the local government areas’. This is a temporary appointment and is terminated ‘if the commissioner considers it is no longer necessary for an SES coordinator to be appointed’. It would appear that this person may be filling the sort of role that in other states would be filled by a region or district controller but there is no provision for a ‘standing’ officer or permanent appointment at that level.

The Commissioner could appoint someone as a regional officer to exercise the commissioner’s powers with respect to the SES units and to avoid him or her having to deal with every unit, but that position would be an administrative and support position rather than an operational position. That person may be the ideal candidate for appointment, as the SES coordinator should the need arise but that operational appointment would be dependent upon the impact of the significant, overwhelming event.

All the other provisions regarding the SES and Emergency Service Units appear to be transferred from the current Disaster Management Act so those services should be able to continue as they have been, just under a different department and commander.

The Bill will allow the Commissioner to charge for fire fighting services. The charges will be set by regulation or by the Commissioner. Where the Commissioner sets a charge it must ‘be reasonable and not more than the actual cost of providing the service’. The person for whose benefit the service is provided and the person who causes the fire or other incident are liable to pay the charges though, presumably, they may be the subject of insurance so if your house catches fire one would expect your household insurer to pick up that charge as well as the cost of repairing the home. The issue will be if you are not insured and for people who ‘cause’ a fire or incident. If the New Zealand model is applied, such charges are not covered by insurance (in New Zealand where the fire is negligently or deliberately lit). The cost of dealing with a fire may well exceed the cost of the damage done, as the fire brigades may be effective in limiting the damage, so these types of provisions can impose a very significant cost on those who ‘cause’ fires or other incidents (see Charging for fire response, 18 February 2013). The Commissioner can waive the charges if he or she is ‘satisfied waiving the charge, or part of the charge, is reasonable in the circumstances’. It will be interesting to see how these provisions are applied both by governments and the courts once the Bill takes effect.

When does the Bill take effect?
The answer to that is not obvious; there is no section that says ‘This Act commences on…’. Presumably therefore the Act will commence operation when it receives Royal Assent (that is when it is approved by the Governor). It will be up to the Government to determine when that occurs so they can hold off, should they wish, the start of the Act to ensure that all the necessary administrative arrangements are in place.


Categories: Researchers

Fire Control officers and local government in WA

7 May, 2014 - 14:32

This question comes from a local government in Western Australia. They ask:

In the context of insurance liability and risk,
1. is there anything in the bush fires act that implies or otherwise that local governments must appoint dfes (Department of Fire and Emergency Services) persons to the position of chief fire control officer because of liability issues and this would reduce local governments risk?
2. Is the risk to local government greater or less if they employ their own chief fire control officer?
3. Is there anything in insurance legislation or case law that requires the chief fire control officer to be dfes employed to protect from liability?
4. If dfes appoint a chief under current legislation does the local government still wear the liability and accountability?

Tort liability arises if an agency, in this case the local government, has a duty to do something, fails to act reasonably and that causes damage. It has to be determined on a case by case basis so there is no simple rule that can be summed up as “if you do x you cannot be liable”.

Let us now turn to the questions. The bush fires act is the Bushfires Act 1954 (WA). Section 38 says “A local government may from time to time appoint such persons as it thinks necessary to be its bush fire control officers …” From those officers one must be appointed as the Chief Bush Fire Control Officer and another as the Deputy Chief Bush Fire Control Officer.

Where there is a vacancy in the office of Chief or Deputy Chief Bush Fire Control Officer the local government must fill that vacancy within one month. If they do not do so, the Fire and Emergency Services Commissioner may serve a notice on the council requiring them to fill the vacancy and if they do not comply then ‘the FES Commissioner may appoint a person who is not employed in the Department to the vacant office’ (s 38(2)(d)). Further, ‘At the request of a local government the FES Commissioner may designate a person employed in the Department as the Chief Bush Fire Control Officer for the district of that local government’ (s 38A).

Where a local government has appointed a bush fire control officer it may give directions on how those officers, including the Chief Bush Fire Control Officer, are to carry out ‘normal brigade activities’ and exercise their authority under Part III of the Act (dealing with actions to prevent bush fires). The local government may also issues directions to a fire control officer with respect to hazard reduction burns ‘on, or at the margins of, streets, roads, and ways, under the care, control and management of the local government’ (ss 38(4) and (5A)). Where the Chief Bushfire Control Officer is appointed by the FES Commissioner (s 38A(1)) then it is the FES Commissioner who may give those directions to the Chief Bush Fire Control Officer.

In all other respects, the Act applies to a Chief Fire Control Officer appointed by the FES Commissioner as if he or she were appointed by the local government (s 38A(3)).

To return to the questions:

1. is there anything in the bush fires act that implies or otherwise that local governments must appoint dfes (Department of Fire and Emergency Services) persons to the position of chief fire control officer because of liability issues and this would reduce local governments risk?

No there is nothing that would suggest that a Chief Fire Control Officer should come from DFES. The only liability issue it would seem is that it would be the FES Commissioner that would give ‘directions’ to the Chief Fire Control Officer under ss 38(3) to (5C) and if, somehow those directions were negligent and caused damage that could shift liability to FES.

2. Is the risk to local government greater or less if they employ their own chief fire control officer?

It would make no difference. Regardless of how the Officer is appointed, the Act applies to them as if they were appointed by the Local Government (s 38A(3)).

3. Is there anything in insurance legislation or case law that requires the chief fire control officer to be dfes employed to protect from liability?

No.

4. If dfes appoint a chief under current legislation does the local government still wear the liability and accountability?

It is not clear what ‘Liability and accountability’ we are talking about. The Chief Bush Fire Control Officer is meant to be one of a team. The FES can appoint the Chief but not all the other Bush Fire Control officers. Section 38A(3) says ‘The provisions of this Act, other than section 38(3) to (5C) apply to and in relation to the Chief Bush Fire Control Officer designated under this section as if he or she were a Chief Bush Fire Control Officer appointed under section 38 by the local government.’ With the exception of the exercise of powers under ss 38(3) to (5C) it makes no difference whether it is the FES Commissioner or the Local Government that appoints the Chief Fire Officer.


Categories: Researchers

Fire Control officers and local government in WA

7 May, 2014 - 14:32

This question comes from a local government in Western Australia. They ask:

In the context of insurance liability and risk,
1. is there anything in the bush fires act that implies or otherwise that local governments must appoint dfes (Department of Fire and Emergency Services) persons to the position of chief fire control officer because of liability issues and this would reduce local governments risk?
2. Is the risk to local government greater or less if they employ their own chief fire control officer?
3. Is there anything in insurance legislation or case law that requires the chief fire control officer to be dfes employed to protect from liability?
4. If dfes appoint a chief under current legislation does the local government still wear the liability and accountability?

Tort liability arises if an agency, in this case the local government, has a duty to do something, fails to act reasonably and that causes damage. It has to be determined on a case by case basis so there is no simple rule that can be summed up as “if you do x you cannot be liable”.

Let us now turn to the questions. The bush fires act is the Bushfires Act 1954 (WA). Section 38 says “A local government may from time to time appoint such persons as it thinks necessary to be its bush fire control officers …” From those officers one must be appointed as the Chief Bush Fire Control Officer and another as the Deputy Chief Bush Fire Control Officer.

Where there is a vacancy in the office of Chief or Deputy Chief Bush Fire Control Officer the local government must fill that vacancy within one month. If they do not do so, the Fire and Emergency Services Commissioner may serve a notice on the council requiring them to fill the vacancy and if they do not comply then ‘the FES Commissioner may appoint a person who is not employed in the Department to the vacant office’ (s 38(2)(d)). Further, ‘At the request of a local government the FES Commissioner may designate a person employed in the Department as the Chief Bush Fire Control Officer for the district of that local government’ (s 38A).

Where a local government has appointed a bush fire control officer it may give directions on how those officers, including the Chief Bush Fire Control Officer, are to carry out ‘normal brigade activities’ and exercise their authority under Part III of the Act (dealing with actions to prevent bush fires). The local government may also issues directions to a fire control officer with respect to hazard reduction burns ‘on, or at the margins of, streets, roads, and ways, under the care, control and management of the local government’ (ss 38(4) and (5A)). Where the Chief Bushfire Control Officer is appointed by the FES Commissioner (s 38A(1)) then it is the FES Commissioner who may give those directions to the Chief Bush Fire Control Officer.

In all other respects, the Act applies to a Chief Fire Control Officer appointed by the FES Commissioner as if he or she were appointed by the local government (s 38A(3)).

To return to the questions:

1. is there anything in the bush fires act that implies or otherwise that local governments must appoint dfes (Department of Fire and Emergency Services) persons to the position of chief fire control officer because of liability issues and this would reduce local governments risk?

No there is nothing that would suggest that a Chief Fire Control Officer should come from DFES. The only liability issue it would seem is that it would be the FES Commissioner that would give ‘directions’ to the Chief Fire Control Officer under ss 38(3) to (5C) and if, somehow those directions were negligent and caused damage that could shift liability to FES.

2. Is the risk to local government greater or less if they employ their own chief fire control officer?

It would make no difference. Regardless of how the Officer is appointed, the Act applies to them as if they were appointed by the Local Government (s 38A(3)).

3. Is there anything in insurance legislation or case law that requires the chief fire control officer to be dfes employed to protect from liability?

No.

4. If dfes appoint a chief under current legislation does the local government still wear the liability and accountability?

It is not clear what ‘Liability and accountability’ we are talking about. The Chief Bush Fire Control Officer is meant to be one of a team. The FES can appoint the Chief but not all the other Bush Fire Control officers. Section 38A(3) says ‘The provisions of this Act, other than section 38(3) to (5C) apply to and in relation to the Chief Bush Fire Control Officer designated under this section as if he or she were a Chief Bush Fire Control Officer appointed under section 38 by the local government.’ With the exception of the exercise of powers under ss 38(3) to (5C) it makes no difference whether it is the FES Commissioner or the Local Government that appoints the Chief Fire Officer.


Categories: Researchers

Local Government and the Emergency Management Manual, Victoria

3 May, 2014 - 15:34

This is an interesting question from Victorian local government. I’ve been asked:

Is the Emergency Management Manual Victoria (EMMV) legally binding for state or local government? We understand that it refers to the Emergency Management Act (1986) and other acts when it elaborates on the content of state or local emergency response/management plans. Does government therefore have to follow a manual, from a legal point of view? The same question appears when dealing with the 2009 Victorian Bushfire Recommendations, or the white paper.

The Emergency Management Manual Victoria (EMMV) is available online at http://www.oesc.vic.gov.au/emergencymanual. Part 3 of the Manual is the State Emergency Response Plan (SERP). Preparation of the SERP is mandated by the Emergency Management Act 1986 (Vic). The plan is to provide ‘for the co-ordinated response to emergencies by all agencies having roles or responsibilities in relation to the response to emergencies’ (s 10). The SERP is to be published and a copy provided to ‘every agency to which the state emergency response plan applies’ (s 17).

A municipal council must also prepare a municipal emergency management plan (s 20) and that plan must be audited at least once every three years to ensure that it ‘complies with guidelines issued by the Minister’ (s 21(5) and s 21A). The relevant guidelines form part 6 of EMMV.

The interesting question is ‘what does it mean to ask is the EMMV legally binding?’ The answer to that depends upon what sort of law or legal remedy you are talking about. As part of the correspondence on this question, that is correspondence to clarify the question before I wrote this post, it was suggested that:

… it is likely that organisation would be considered to be breaching their common law duty of care by not following industry best practice, unless they could sufficiently show that the actions were for a reason that could not be reasonably covered by the plan.

That statement confuses two questions in negligence law; one is whether or not there is a duty of care, the second, which only arises if the answer to the first question is ‘yes’, is ‘what would a reasonable person do in response to that duty?’

In an earlier post I reported on a decision in Matthews v SPI Electricity (No 2) [2011] VSC 168 (see ‘Black Saturday’ litigation, May 11, 2011). There I said:

“This was an application by the State of Victoria to dismiss claims made alleging breach of statutory duty and negligence by members of Victoria Police, DSE and the CFA.

“The original case against SPI Electricity alleges negligence in they way the operated and maintained electricity distribution assets. SPI joined, as a defendant, the State of Victoria alleging that part of the loss or damage was due to a failure by police to perform their duties under the Emergency Management Act 1996 (Vic) and the associated disaster plan (DISPLAN) [now SERP]…

“The case against the police was based on two different torts; one was ‘breach of statutory duty’ and the other was ‘negligence’. Although related these two torts are not the same. To succeed in a claim for breach of statutory duty, the plaintiff has to show that the defendant was obliged (not merely permitted) to do something; that they failed to do what they were required to do; as a result the plaintiff suffered damage; and most importantly, that the Parliament, in imposing the duty, intended that the Act would give an injured individual a private right to sue for damages. The parliament does not usually spell out its intention in such clear language so the intention must be inferred from the structure of the Act. Where, for example, an Act provides for a remedy, for example that failure to do what is required is to be punished by a fine, then that would suggest that an alternative remedy, the payment of damages, was not intended. Equally where an Act is designed to establish a scheme for the benefit of the community as a whole, rather than an identified class of people, it is unlikely that the parliament intended that individuals would have a private right to sue.

“Forrest J had to consider these issues in relation to the Emergency Management Act 1996 (Vic). He noted that the Act was designed to establish coordination and response arrangements across Victoria for all types of hazards. The Act, and DISPLAN, were intended to ensure that ‘key players know who is in charge at particular levels and what their responsibilities are.’ [73]. He said (at [76]):

“Nothing in these provisions even vaguely implies that the legislature intended to impose an obligation upon particular persons or organisations identified in DISPLAN, (and particularly police officers) which would give rise to a private right – to the contrary, I think that purpose is to provide those bodies with the knowledge and understanding as to who is responsible for what particular activity in the event of an emergency.

“Forrest J formed the view that, by passing the Act, the Parliament in no way intended to give individuals a private right to sue if they believed that a person, in this case a police officer, had failed to perform a task or duty set out in either the Act or DISPLAN. Accordingly the action based on breach of statutory duty was dismissed.”

The net result of that (remembering this is the decision of a single judge so not a binding precedent) is that just because the SERP says that an agency, such as the police or the council, is to do something that does not give an aggrieved individual the right to sue for damages because they haven’t done that thing.

As for a common law duty of care, deciding when that exists is very complex and depends entirely on the particular facts. A court will consider all the ‘salient features’ of the relationship between the plaintiff and the defendant to determine whether, as a matter of law, those facts lead to a conclusion that the defendant had to take reasonable care to protect, or avoid harming, the plaintiff. In Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258, Alsop P identified a list of 17 relevant ‘features’ that needed to be considered in deciding whether or not there was a duty of care so it is impossible to explain here (if it is every possible) exactly how and when a duty of care will arise; but if we assume that an agency does owe a common law duty of care to an individual, then certainly failure to comply with the SERP could be evidence of failure to act ‘reasonably’.

In terms of making the plan then compliance with the Guidelines is mandatory (see ss 21(5) and 21A) but again the remedy is probably not an action for damages. If someone did try to sue they would have to deal with the Wrongs Act 1958 (Vic) s 84(2) which says:

For the purpose of the proceeding, an act or omission of the public authority relating to a function conferred on the public authority specifically in its capacity as a public authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no public authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.

Someone who alleged that a plan did not meet the guidelines could only succeed (assuming they could establish a duty of care) if the plan was ‘so unreasonable’ that ‘no public authority’ would accept that it was an attempt to comply with the guidelines. So if a council wrote their response plan without looking at the guidelines, with no reference to the guidelines, without any attempt whatsoever to comply with the guidelines, then they would not enjoy any protection from s 84. If, on the other hand, there is an honest attempt there could be no liability even if, in retrospect, it can be shown that a better plan could have been prepared or the plan that was prepared did not, despite genuine attempts, actually comply with the guidelines.

So the first conclusion is that the presence of an assigned task or duty in the SERP will not, simply because of that, give rise to a duty of care. Further a person who wanted to sue either because a municipal authority did not follow the SERP or because they (the person suing) alleged the municipal plan did not comply with the guidelienes, they would have a very difficult if not impossible case to make. So in that sense the EMMV is not ‘legally binding’ if by legally binding you mean ‘likely to expose us to an obligation to pay damages (ie monetary compensation)”.

But there are other areas of law, for example, administrative law. Under administrative law a person could seek an order requiring an authority to do what that authority is required to do. So, for example, a municipal authority that is required to prepare a municipal emergency management plan may not be legally liable to pay damages if they don’t prepare a plan, but a person with a relevant interest, say a ratepayer, may have standing in the Supreme Court to obtain an order to require the Council to make the plan.

There is also what we might call local government law. Local governments in Australia are not independent authorities, they are the creature of statute law. In Victoria, municipal authorities are established by the Local Government Act 1989 (Vic). The purpose of local government is not to do what they want, or what they think is a good idea, but “to provide a system under which Councils perform the functions and exercise the powers conferred by or under this Act and any other Act for the peace, order and good government of their municipal districts. (s 3A, emphasis added).

Where a local government is failing to exercise good governance the Minister may appoint an inquiry into the council’s affairs, may recommend to the Mayor remedial action to be taken and may, pending resolution of the matter, authorise someone else to take steps to give effect to the recommendation (Local Government Act 1989 (Vic) ss 209-218) and may, ultimately,

… recommend to the Governor in Council that all the Councillors of a Council be suspended, if the Minister is satisfied on reasonable grounds—
(a) … that there has been a serious failure to provide good government … (Local Government Act 1989 (Vic) s 219).

If the Minister for Police and Emergency Services is responsible for ensuring that ‘satisfactory emergency management arrangements are in place’ and has approved the SERP for that purpose (Emergency Management Act 1986 (Vic) ss 5 and 10) then the Minister for Local Government may think that only a very ‘courageous’ local government (using that term as Sir Humphrey Appleby might use it; see https://www.youtube.com/watch?v=ik8JT2S-kBE) would chose to ignore, or thought it was not bound to give full faith and credit to the EMMV.

In that sense I would suggest the EMMV is, indeed, binding on local authorities.


Categories: Researchers

Survey on data use

28 April, 2014 - 12:44

This is not about emergency law (sorry) but a plug for a survey that is being conducted by my friend, colleague and PhD student at the ANU, David Hudson. David is interested in how emergency managers use data to make decisions. To find out he is inviting emergency management personnel, whether your in a level 3 IMT or a volunteer first responder, to take part in a voluntary, on-line emergency management industry survey. The survey asks you to share your opinions and experiences regarding the use and usefulness of sensor data from satellites, planes and ground based sensors, including social media, for supporting emergency management decision-making. You do not need any formal background in or understanding of data to participate in the survey.

The survey is being conducted by the Australian National University in collaboration with Geoscience Australia, the Cooperative Research Centre for Spatial Information and the Bushfire & Natural Hazards Cooperative Research Centre.

The validity of the survey is dependent upon strong industry participation and he would very much appreciate your time in completion the survey. It is expected that the survey will take around 15 minutes to complete. To see the survey, go to [https://www.surveymonkey.com/s/WTKC3KJ]. This website also provides more information about the survey, why it is being conducted, and how your survey data will be used, and how your confidentiality is ensured.

If you have any questions or concerns about the survey please don’t hesitate to contact David Hudson on david.hudson@anu.edu.au

Michael Eburn
28 April 2014.

For more details, click here.


Categories: Researchers

Emergency Management law and policy links – updated

27 April, 2014 - 13:24

I maintain, for my own purposes, a web page with links to relevant emergency management law and policy documents.  Although the page is intended for my use, readers of this blog would, I imagine, also find it useful.

Regards

Michael Eburn
27 April 2014.

 


Categories: Researchers

Victoria SES Commander guilty of an offence, but no conviction recorded.

22 April, 2014 - 13:23

My friend and colleague Luke Dam wrote to me about a story appearing in Victoria’s Herald Sun newspaper “SES raises safety over equipment theftshttp://lnkd.in/bjM2rw6.

The story reports on thefts from SES units including incidents where unit members have fraudulently obtained benefits by either taking money, or getting the SES to pay for private expenses.   In one case a Unit Commander entered a plea of guilty ‘… to charges of making false documents after he stashed $14,000 of SES funds in a secret bank account and in a safe. He admitted forging minutes purporting to be from a unit meeting, which gave him the authority to be the sole signatory for the unit’s account’. The Unit Commander ‘was found guilty without a conviction and fined $600’.

Luke asks ‘How can there be no conviction if they’ve been found guilty? Is that correct? Is there a trigger point or is it a discretionary call?’

It is in fact a discretionary call.  The Sentencing Act 1991 (Vic) s 7(1) says: “If a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence and subject to this Act…” it then goes onto list a number of sentencing options, most, but not all, of which start with ‘record a conviction and …’   A court may, however:

 (e) with or without recording a conviction, make a community correction order in respect of the offender; or

(f)  with or without recording a conviction, order the offender to pay a fine; or …

(j) without recording a conviction, order the dismissal of the charge for the offence…

In deciding whether or not to record a conviction:

 … a court must have regard to all the circumstances of the case including—

(a) the nature of the offence; and

(b) the character and past history of the offender; and

(c) the impact of the recording of a conviction on the offender’s economic or social well-being or on his or her employment prospects. (Sentencing Act 1991 (Vic) s 8(1)).

If no conviction is recorded, a person can honestly say, if completing a police or other check, they have never been convicted of an offence and automatic penalties that apply ‘on conviction’ (such as loss of licence for drink driving) do not apply, as there is no conviction!

Now I don’t know anything about the Unit Commander referred to in the paper but one can see why some of those issues could be relevant.  Think of s 8(1)(b) and (c) above.  Someone’s who has risen to the rank of Unit Commander can probably point to, apart from this offence, good character and contribution to the community.  He may well be severely impacted by a conviction in that it may affect his employment and the court may think that the consequences of his volunteering should not extend that far, particularly if volunteering for the SES has been a significant part of his life, perhaps that gave him social status and credit, and that has now been lost to him. In Castle v DG SES [2008] NSWCA 231 the court held that the potential ‘damage to the claimant’s reputation’ meant that a unit controller should have been given the opportunity to be heard before the unit of which he was in charge was disbanded and his position as ‘controller’ removed.  The standing one has as a unit controller was considered sufficient in that case, and equally the loss of standing on being found to have fraudulently appropriated funds, whilst justified, is not insignificant.   In that sense being caught will have impacted upon his ‘social well being’ sufficiently so that the further consequences of a conviction are not warranted.

There is also the issue of ‘the nature of the offence’.  We don’t know but can imagine that one’s service to an organisation like the SES may well contribute to one’s offending and so the nature of the offence.  Organisations like the SES recognise that service with them can be damaging (see Creating a network of support <http://www.ses.vic.gov.au/media/news/news-items/creating-a-network-of-support>; in NSW see Critical Incident and Counselling Services http://www.ses.nsw.gov.au/volunteering/cics/).  If it is recognised that people can be harmed by their service, it also has to be recognised that not everyone responds to that harm in the same way or even acceptable ways.  The SES may want to assist members ‘who may be experiencing or have experienced a traumatic incident or stressful reactions following their operational involvement in an event’ (http://www.ses.nsw.gov.au/volunteering/cics/cisp) or events and hopefully that includes all members regardless of how their trauma manifests itself.  Services should not only support those who demonstrate their trauma in ‘acceptable’ ways (crying, loss of concentration) but not those who behave in an ‘unacceptable’ way (violence or other crime).  The courts may deal with their crime but if it is a manifestation of their service, then the SES (or other service) should still be willing to support them.

Another issue in organisations like SES is that there is a limited pool of members to appoint to positions of authority. If the role of Unit Commander was a full time, paid job there would be a wider selection of applicants and people may be prepared to move to take up the job.   Where it’s a volunteer position the pool of potential appointees is largely limited to the members of the unit.  Picking the best candidate may be a matter of picking the one person left standing after the call for volunteers; and that person may not be fully up to the job; they may have been a great team leader or rescue operator, but does that make them a financial manager?  I note that the Auditor General’s report into the NSW SES has noted the need to assess what volunteer staff are required and recruit accordingly (New South Wales Auditor-General’s Report, Performance Audit Management of volunteers: NSW State Emergency Service (2014)).

It may be that a Unit Commander is appointed to a job they are not really suited for and not given adequate direction and supervision so opportunities for fraud, or just mistake, may well present themselves.  That person also needs to be supported by the Service, which should also take responsibility for the systems and process that are in place to protect its assets.

Did any of this apply here?  I of course have no idea of the facts of the case reported here and whether the members were just ratbags, or whether after years of service, perhaps pressure from home, many, many hours of unpaid work, compounded by traumatic events, some opportunity presented that but for their service they would never have acted upon.  If that’s the case (or somewhere between those two extremes) a court may well take that into account when considering ‘the nature of the offence’ and determine that if they are now removed from their role, probably removed from the SES, the likelihood of reoffending is low so that a conviction is not warranted.

It may be, I would even hope that in the right circumstances it would be, the case that the SES would have stood by the member and said in effect – they did the wrong thing, they even hurt us, but they are one of ours and if their service harmed them then we need to support him or her.  If that did occur (and again to reiterate, I have no idea if it did, or would or should have in this case) that would go a long way to convincing a court that a conviction is not warranted.

To return to Luke’s question, yes there can be no conviction even if a person is found to have committed an offence.  There is no ‘trigger point’, each case has to be judged on its merits, so it is a discretionary call, butt, like all sentencing decisions, it is not an unlimited discretion.  The court has to consider the matters set out in the Sentencing Act 1991 (Vic) s 8(1) plus general principles of sentencing law (which one can’t begin to spell out here).


Categories: Researchers

Are Australian Federal Police Protective Services officers Emergency Workers?

15 April, 2014 - 14:43

This question comes from a protective service officer who says:

As far as I am aware, protective service officers of the AFP cannot claim exemption from the road rules using 305 or 306, even though they may attend emergency situations or needed to attend urgently.

My question is can protective services officers use lights and sirens to attend a job whilst abiding by all road rules? That is; keeping to speed limit, not running reds, just utilising the lights and sirens as a means to warn other road users out of the way? Would this be legislated or an organisation directive to do or not to do so?

Also what is the legality for protective service officer vehicles and red and blue lights? Looking at the NSW vehicle standards it says police, NSW Fire and Rescue, ambulance, SES, RMS emergency vehicles can have fitted red and blue lights. Nothing about Australian federal police vehicles or specifically vehicles operated by protective service officers. It does in the section regarding sirens state that Australian federal police vehicles may be fitted with a siren, as well as mentioning police, ambos etc.

The AFP work nationwide but given my correspondent has referred to the NSW Vehicle Standards, I’ll answer using NSW law.

The Australian Federal Police force is established by the Australian Federal Police Act 1979 (Cth).  The Australian Federal Police consists of the Commissioner, the Deputy Commissioner, AFP employees, special members and special protective service officers (s 6).  A special protective service officer is ‘a person appointed under section 40EC’ (s 4).   Section 40EC says:

The Commissioner may … appoint a person as a special protective service officer of the Australian Federal Police to assist in performing the protective service functions of the Australian Federal Police.

The ‘protective service functions of the Australian Federal Police’ are defined by the Minister (s 8A).  A special protective service officer is an AFP appointee which is a generic term intended to mean all the staff of the AFP so sworn police officers, protective service officers and special members.   A member of the Australian Federal Police is an AFP employee who has been declared to be a member of the AFP (s 4).  The implications of all that is that the AFP consists of special protective service officers, special members and other AFP employees.  Only those AFP employees who have been declared to be ‘members of the AFP’ are police officers.   What I infer is that a ‘special protective service officer’, although an AFP appointee is not a member of the AFP ie he or she is not a police officer.

Now to the road rules; remember that rules provide that the driver of an emergency vehicle is exempt from the road rules (rule 306) as are drivers of police vehicles (rule 305).   As my correspondent has noted, rule 306 applies to vehicles driven by an emergency worker in the course of his or her duties as an emergency worker – an emergency worker is

(a) a member of the Ambulance Service or the ambulance service of another State or Territory, in the course of providing transport in an emergency associated with the provision of aid to sick or injured persons, or

(b) a member of a fire or rescue service operated by a NSW Government agency, a member of the State Emergency Service or a member of a fire brigade (however referred to) or rescue service of the Commonwealth or another State or territory, providing transport in the course of an emergency, or

(b1) a member of Airservices Australia providing transport in the course of a fire or rescue emergency, or

(c) a person (or a person belong to a class of persons) approved by the Authority.  (Rule 4 and Dictionary).

Clearly the AFP does not fall within those definitions.

Rule 305 says:

(1) A provision of these Rules does not apply to the driver of a police vehicle if:

(a) in the circumstances:

(i) the driver is taking reasonable care, and

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

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

Police may benefit from this rule even if they are not displaying a red/blue light or sounding a siren and that is reasonable in the circumstances (Rule 305(2)).

A police vehicle is ‘any vehicle driven by a person who is: (a) a police officer, and (b) driving the vehicle in the course of his or her duties as a police officer’.  A police officer is ‘a member of the NSW Police Force who is a police officer within the meaning of the Police Act 1990’ (Rule 4 and Dictionary).    One would assume that a member of the AFP is not a member of the NSW police however, the Police Act 1990 (NSW) provides that members of the AFP may be appointed as recognised law enforcement officers.  This may be done either individually or as a class.  An audit report on police at Australia’s airports says ‘AFP officers in NSW have been sworn in as Recognised Law Enforcement Officers (RLEOs) under NSW legislation’ (ANAO Audit Report No.23 2013–14, Policing at Australian International Airports, p 44, [2.12]).

A recognised law enforcement officer ‘may exercise all the functions (including powers, immunities, liabilities and responsibilities) that a police officer of the rank of constable duly appointed under this Act has and may exercise under any law of the State (including the common law and this Act)’ (Police Act 1990 (NSW) s 207E(1)).  Further ‘a provision of any Act or statutory instrument applies to a recognised law enforcement officer in the same way as it applies to a police officer in his or her capacity as a police officer’ (s 207E(3)).  It follows that even though AFP officers are not members of the NSW Police, the road rules will apply to them as if he or she was a police officer; so yes police officers with the AFP can rely on rule 305.

But Protective Service Officers are not police officers – so that provision won’t help.   It appears therefore that ‘protective service officers of the AFP cannot claim exemption from the road rules using 305 or 306, even though they may attend emergency situations or needed to attend urgently’ but there is one more argument.  A special protective service officer has:

(a)  any powers and duties that are expressly conferred or imposed on special protective service officers under a provision of this Act or any other Act; and (b)  such of the powers and duties conferred or imposed on protective service officers as are specified in his or her instrument of appointment ( Australian Federal Police Act 1979 (Cth) s 40ED).

Whilst I very much doubt that the Commissioner has given special protective service officers the power to drive without regard to NSW road rules in the instrument of appointment, he or she may have been given police powers that are sufficiently generic such as ‘all the powers and duties of a police officer’ or the like.

Without going into the details of what might be, the Australian Constitution provides that if there is an inconsistency between a State law and a Commonwealth law, the Commonwealth law prevails (Australian Constitution s 109).   If the Commissioner has given some relevant power in the instrument of appointment, that could override any inconsistent state law.  I am unable to verify if that is the case but I do have to say I suspect that it is unlikely.  So AFP Special protective service officers can benefit from s 305 if the Commissioner of NSW Police has appointed them as recognised law enforcement officers or there is a valid Commonwealth law, or power in his or her instrument of appointment that allows them to do so.

The next question is ‘can protective services officers use lights and sirens to attend a job whilst abiding by all road rules?’  The answer has to be ‘no’.  The point of lights and siren’s is to warn other drivers and there are obligations upon other driver’s to give way to emergency service and police vehicles (Rule 79).   Further it is a defence to stop, where it would otherwise be unlawful to stop, to comply with another rule (rule 165) so a driver who pulls over and stops to let a police vehicle with lights and sirens on pass, commits no offence.   In short if you have lights/siren on other vehicles are required to make way for you.  It would lead to confusion if, for example, you stopped at a red light with lights/siren on, other vehicles stopped to give way, but you stayed stopped at the intersection.  Driving with lights and sirens on does nto give you permission to drive recklessly or dangerously but it would increase the danger if people made way for you but you then did not act on that courtesy as you can’t break the road rules.

If the vehicle is not a police or emergency services vehicle, (which it’s not if it’s not being driven by an emergency worker or police officer, even if it’s a marked police care) then it is an offence to ‘use a device to make a sound like the sound of a siren’ (Rule 224-1), and a siren makes a sound like a siren!

As for fitting lights and sirens to AFP vehicles; the Road Transport (Vehicle Registration) Regulation 2007 (NSW) says that a vehicle must not ‘be fitted with a device that can make a sound like the sound of a siren’ unless, amongst others, it is a police vehicle or an Australian Protective Service vehicle’ (Schedule 2, clause 33).   That is the only mention of Australian Protective Services in the Regulation.

There remains the general catch all- an emergency worker includes ‘a person (or a person belong to a class of persons) approved by the Authority’ as an emergency worker (Road Rules 2008 (NSW) r 4 and Dictionary, definition of Emergency worker); a vehicle may be fitted with flashing blue/red lights if they are ‘approved by the Authority’ (Road Transport (Vehicle Registration) Regulation 2007 (NSW) Schedule 2, clause 124).

Conclusions

Let me return to the questions:

As far as I am aware, protective service officers of the AFP cannot claim exemption from the road rules using 305 or 306, even though they may attend emergency situations or needed to attend urgently.

They could rely on clause 305 if they have been appointed as a ‘recognised law enforcement officer’ by the Commissioner of the NSW Police.  This appears unlikely and is more relevant for members of the AFP (as opposed to AFP appointees).    They could rely on clause 306 if they have been approved as ‘emergency workers’ by the NSW Road and Maritime Services.

They may be exempt the NSW Road Rules if there is a valid Commonwealth law or there is a power in their instrument of appointment that is inconsistent with the NSW rule. That too would seem unlikely.

My question is can protective services officers use lights and sirens to attend a job whilst abiding by all road rules? That is; keeping to speed limit, not running reds, just utilising the lights and sirens as a means to warn other road users out of the way? Would this be legislated or an organisation directive to do or not to do so? 

No; either your authorised to use the equipment or you are not.  This would be dangerous and illegal to operate red and blue lights or a siren on a vehicle that is not an emergency vehicle or a police vehicle and they only have that character when they are driven by an emergency worker or a police officer in the course of his or her duties in an emergency.  Subject to the discussion above special protective service officers are neither unless the appropriate appointments have been made, or authorities issues.

Also what is the legality for protective service officer vehicles and red and blue lights? Looking at the NSW vehicle standards it says police, NSW Fire and Rescue, ambulance, SES, RMS emergency vehicles can have fitted red and blue lights. Nothing about Australian federal police vehicles or specifically vehicles operated by protective service officers. It does in the section regarding sirens state that Australian federal police vehicles may be fitted with a siren, as well as mentioning police, ambos etc.

A police vehicle includes an AFP vehicle if AFP members have been appointed as recognised law enforcement officers.  It does appear that Protective Service vehicles can be fitted with a siren which is odd if there is no power to use it; but inconsistency in law is not unknown.  I would expect that relevant authorities have been granted by the RMS but to check that, this question should be directed to the AFP’s legal office.


Categories: Researchers

Working with old ambulances – WA mines

11 April, 2014 - 15:26

A question from West Australia:

I have been working in the mines for the last 2 years. Have recently changed sites and now on a site with quite an old ambulance. This troop carrier still has the long bench seat (side facing seats) with lap type seat belts. In a recent team meeting the 4 medics were asked by our supervisor on feedback on our equipment. The ambulance received the greatest amount of comment.

My question is what is the legality of side facing seats in ambulances? A couple of the other medics and I have spoken after this meeting and we have all heard that side facing seats are now illegal and against Australian Standards. I have done a bit of a web search and see a lot of talk about new proposed laws for years but nothing from a reliable source. I can also assume the rumor mill starts something and the facts get changed. If there are new laws is that only apply to new vehicles. How would this also apply to WHS legislation if the changes to remove side-facing seats in new vehicles was as a result of increased injury.

Surprisingly the vehicle standards say nothing about the direction of seats (see Road Traffic (Vehicle Standards) Regulations 2002 (WA) and Road Traffic (Vehicle Standards) Rules 2002 (WA)) – though it seems obvious that the driver’s seat should face the front.   The only relevant rule appears to be the rule which says “A seat for a driver or passenger in a vehicle must be securely attached to the vehicle” (Road Traffic (Vehicle Standards) Rules 2002 (WA) rule 26).

The Road Traffic Code 2000 (WA) (that incorporates the national road rules) has some more to say. Regulation 234 says that a child under 6 months must be in a ‘rearward facing child restraint’.  A child over 6 months but under 4 may be in a forward or rearward facing child restraint and, necessarily, not in one that is on a side facing seat.  There are no other references as to the direction of car seating, so I can see nothing to suggest that side facing seats are illegal.  If the design rules do change, the changes apply to vehicles registered, or equipment fitted, after the changes (Road Traffic (Vehicle Standards) Rules 2002 (WA) rules 13 and 14).

The Occupational Safety and Health Act 1984 (WA) says ‘An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees ) are not exposed to hazards’ (s 19).  Despite its mandatory tone it’s not possible to ensure that there are no hazards, so the obligation is to ensure a hazard free environment ‘so far as is practicable’.  What is practicable means

 reasonably practicable having regard, where the context permits, to

(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring; and

(b) the state of knowledge about —

(i) the injury or harm to health referred to in paragraph (a); and

(ii) the risk of that injury or harm to health occurring; and

(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health; and

(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii);

In Kirk v Industrial Relations Commission & WorkCover Authority of New South Wales [2010] HCA 1 the High Court considered section 15 of the Occupational Health and Safety Act 1983 (NSW) (now repealed). That section said ‘Every employer shall ensure the health, safety and welfare at work of all the employer’s employees’.   The Court (French CJ, Gummow, Hayne, Crennan, Kiefel And Bell JJ) said

‘it is necessary for an employer to identify risks present in the workplace and to address them, in order to fulfil the obligations imposed by ss 15 and 16. It is also necessary for the prosecutor to identify the measures which should have been taken. If a risk was or is present, the question is – what action on the part of the employer was or is required to address it?

In other words, an offence is not established just because there is a risk or just because an injury occurs, the prosecution must also prove there was something that could be practically done to ameliorate the risk.

So are side facing seats illegal?  They are not illegal under the vehicle standards rules.  Do they breach OHS laws – no but they might if a risk assessment concluded in all the circumstances, taking into account where and how the ambulance is to be used, they posed a greater risk to the occupants than other types of seats and ‘the availability, suitability, and cost’ of alternatives. Clearly there are alternatives in the form of newer, better designed ambulances or retrofitting the interior of the ‘old ambulance’.  Whether those costs are warranted depends on the assessment of ‘the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring’.  A very low risk of a minor injury may not warrant replacing the ambulance fleet, a very high risk of a fatal injury probably does.


Categories: Researchers

NSW RFS village firefighting

9 April, 2014 - 13:57

I am a Senior Deputy Captain with the NSW RFS. In the RFS in order to go to callouts a member must successfully complete the bush firefighter (BF) course. As the name suggests this course teaches bush and grass fire fighting skills. There is a separate course which teaches village firefighting skills (VF) which is often done until about a year after BF and teaches skills relating to village firefighting incidents such as motor vehicle accidents, structure fires and car fires.

As I mentioned within the RFS members are able to start attending incidents once they have completed BF, regardless of what the incident is. This means that it is not unusual, particularly within village type brigades such as mine to have crew at village type incidents who have not completed the VF training course.  The relevant NSW RFS service standard  (6.1.2) does specify that the minimum qualification required to “Fight a village type fire (structure/vehicle)” is village firefighter but it is normal practice (and district staff are certainly aware that it happens) within all RFS areas I know of for members to attend village type incidents even if they are not village qualified. If only village qualified members were sent then there are cases where brigades may not be able to send a crew.

This then leads to a few questions:

  1. As an officer should I be stopping non VF qualified members from attending village type incidents?
  2. Is there any liability on myself, a non VF qualified member or the brigade either from a WHS perspective or more generally if a non VF qualified member gets injured/killed at a village type fire?
  3. Is there any liability if a member of the public or their property is injured / damaged as a result of the actions of a non VF qualified member at a village type incident?

The answers to these questions will, as if often the case, turn on the risk assessment.  In the normal way with legal analysis we can start with the ‘rules’ and then apply them to the facts.  The first relevant rules is Service Standard 6.1.2.  For mainstream fire fighting roles, the Service Standard says, in Appendix 1, that in order to:

  •          ‘Fight a village type fire (structure/vehicle)’ one needs to be qualified as a Village Firefighter (VF).
  •          Lead a crew ‘fighting a village type fire’ you need a qualification as ‘Crew Leader Village (CLV)’.
  •          Fight a village fire using an interior attack, one needs qualifications as a Breathing Apparatus Operator (BAO).

These ‘requirements do not apply in rural remote brigades’ that is ‘farm based brigades’.  I infer that my correspondent is not from a ‘rural remote brigade’.   Further:

Using a risk management approach, a District Manager may waive any of the requirements for volunteer qualifications in their area of jurisdiction, provided they are working to achieve compliance within a reasonable time and are satisfied that current operations can be conducted safely.  (Service Standard 6.12, [2.4]).

I will assume that no such waiver has been made.

Next we need to consider the Work Health and Safety Act 2011 (NSW) which says that person conducting a business or undertaking (the PCBU, in this case the Rural Fire Service) has 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).  As is now well known, ‘workers’ includes volunteers (s 7).   What reasonably practicable means is:

… that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

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

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

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

(i) the hazard or the risk, and

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

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

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. (s 18).

Although not a binding precedent, a Scottish Sheriff (the equivalent of our Coroner) in a report on the Death of Alison Hume (see ‘Legal confusion leads to unnecessary death’ 8 December 2011) was critical of the Strathclyde Fire and Rescue service for rigidly adhering to a policy directive without stopping to think what was the actual risk and importantly how severe was the risk compared to the objective to be achieved.   There is always a risk to fire fighters but that doesn’t mean we don’t let fire fighters fight fires, the benefit of fighting fires warrants some risk but steps must be taken to minimise but not eliminate all risks.

Finally let’s remember the rule, referred to often in this blog, about the fire brigades’ duty of care.  In Capital and Counties v Hampshire Council [1997] QB 2004 the UK court ruled that fire brigades are not established for individual benefit but for community benefit and they do not owe a duty of care to individuals.  In that case the court (Lord Justice Stuart-Smith; Lord Justice Potter and, the appropriately named, Lord Justice Judge) said

In our judgment the fire brigade are not under a common law duty to answer the call for help and are not under a duty to take care to do so. If therefore they fail to turn up or fail to turn up in time because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable.

If they do owe a duty it is a duty not to make the situation worse, not necessarily to make it better (see any number of posts on this blog at http://emergencylaw.wordpress.com/?s=capital+and+counties).

If they are the relevant rules let us try to apply them to the facts as given.   The situation is that there is a fire in the ‘village’ and the RFS have been called.  The members are only qualified to BF.  (I would expect that there may be some qualified to VF but that’s not in the facts as given so I will assume that in fact none are qualified to VF).   Presumably there is a neighbouring brigade that may be able to come, and depending on where the village is NSW Fire and Rescue may also be dispatched but I will assume that their response times will be sufficiently long that waiting for them is not a real option.

Remember that fire brigades are established for the community benefit and what the community requires is that the village is not razed; the loss of a single building will be bad for the building owner and may be quite devastating for the village if it is a key piece of infrastructure (the pub or the shop) but losing that will not be as bad as losing the entire village or shopping strip.   The RFS has received the call and it is the function of the Rural Fire Service to provide rural fire services which includes protecting people, property and infrastructure from damage by fire (Rural Fires Act 1997 (NSW) s 9).  As the local brigade you have two options: go or don’t go.

If you don’t go, the risk to the community is self evident.   There won’t necessarily be any ‘liablity’ if you don’t go, there is no duty of care to individuals, it is not clear but the balance of authority would say that the obligations set out in s 9 do not give a person a right to sue if you don’t go (Bennett and Wood Ltd v Orange City Council; Board of Fire Commissioners (Third Party) (1967) 67 SR(NSW) 426).  If there is liability it would fall on the RFS, not individual members as it is the RFS (if anyone) that is required to respond, not individuals – volunteers can always not volunteer.   But as noted, the risk is self evident and no doubt volunteer fire fighters volunteer to support and protect their community.

The alternative is to go.  What’s the risk, so far nothing more than the risk of responding to any fire. The members get in the appliance and they go and arrive at the fire scene.  Now the options are more complex: what do you do when you get there?    Now is the time for risk assessment – if your there for the community benefit the objective has to be to contain the fire.  An urban brigade, or an RFS brigade, staffed with VF and BAO qualified fire fighters may see their measure of success as containing the fire to the room of origin (see Productivity Commission Report on Government Services 2014 (Commonwealth of Australia, 2014) Volume D, Chapter 9, page 9.33) but that is not a reasonable expectation here.  Here containing the fire to the building of origin is more realistic.

I’m not a fire fighter but I can imagine there are a number of strategies that could be deployed which involve fighting the fire from the street.  There is no need to actually enter the building.  It could be that fire fighting resources are in fact deployed to simply wet down neighbouring buildings and deal with spot fires and allow the burning building to burn.

Again risk assessment is the key and to again quote Mason CJ from Wyong Shire v Shirt (1980) 146 CLR 40 (at 48), an assessment of what is reasonable

… calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.

So the officer in charge has to consider the risk to firefighters, the risk to the community, what can be done to mitigate those risks and the like.

Let me return to the questions:

  1.  As an officer should I be stopping non VF qualified members from attending village type incidents?

If members are allowed to attend with BF then I don’t see why.  That answer may be different if there is a specific instruction from the RFS to that effect, but you tell me that members are allowed to attend with BF and the service standard says they’re not allowed  to ‘fight’ a village type fire, but that doesn’t mean that they are not allowed to go.   And then we have a question of what does ‘fight’ a village type fire mean?  We can reasonably infer that they should not be going into the burning building – regardless of definition of ‘fight’ that’s just too risky – even if there are people in the building!

Within the RFS you must know what is taught in the VF course and what the extra skills are and the OIC/IC can determine what skills are required. If turning the water onto nearby homes is the best option that, I would think, is quite consistent with a BF skill.

  1.  Is there any liability on myself, a non VF qualified member or the brigade either from a WHS perspective or more generally if a non VF qualified member gets injured/killed at a village type fire?

There is unlikely to be personal liability.  The RFS would be liable to pay compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) but that’s a no fault scheme.  Under common law the RFS would also be liable for the negligence of its volunteers  and one would argue they were negligent in not sufficiently training you on what to do – particularly given ‘district staff are certainly aware that it happens’.

By virtue of the Work Health and Safety Act 2011 (NSW) s 34, a volunteer’s duties are limited to those set out in s 28 and 29.  Section 28 says:

While at work, a worker must:

(a) take reasonable care for his or her own health and safety, and

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

(Section 29 is similar and relates to the duty to protect others at the workplace and will not be discussed here).

There may be a breach of s 28(b) if you, as the IC, directed a non-qualified fire fighter to enter the building to rescue the cat.   It may be argued that as the captain you did not ‘comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the[PCBU]’ but as we’ve noted there does not appear to be a specific instruction that BF firefighters can’t go, only that they can’t ‘fight’ a village type fire.   And an instruction not to go at all may not be a ‘reasonable instruction’ given the risk to the village and that the Brigade may be able to do something to contain the fire even if they cannot save the building that is on fire.

So short of blatant stupidity, or malicious intent, there will not be personal liability.  The RFS may be liable but as in all cases it would depend on the circumstances.   What killed or injured the fire fighter?  What was the risk assessment?  Were the factors listed in section 18 (above) considered?  When considering the risk was concern also given to the purpose to be achieved ie the need to contain the fire?

(I do know that there are specific duties on ‘officers’ under the WHS Act s 27; but a Senior Deputy Captain may be an RFS Officer but he or she is not an officer as that term is defined in the WHS Act s 247 and see also s 34 which exempts volunteers from the ‘officer’ provisions).

  1.       Is there any liability if a member of the public or their property is injured damaged as a result of the actions of a non VF qualified member at a village type incident?

No.

Let me explain in more detail.   The duty of the RFS is only not to make the situation worse.  The property is on fire, what’s the fire fighter going to do to make the situation worse?    I guess they could do what one of the defendants did in Capital and Counties v Hampshire Council [1997] QB 2004 which was turn off the sprinklers before the seat of the fire had been located with the consequence that the building was lost and would have been better protected if the fire fighters had not shown up at all.

But we know that an Act done in good faith does not attract liability (Rural Fires Act 1997 (NSW) s 128) so provided the fire fighter is doing his her honest best there will be no liability (see also my post on Myer Stores Ltd v State Fire Commission [2012] TASSC 54 (24 August 2012)).

What of the claim that they didn’t do enough?  Well as noted the common law would say that the brigade’s duty is to the community not to the owner of the property; if the property was going to burn without them brigade in attendance then it doesn’t matter if it burns when they are there if they are doing things like protecting the neighbouring properties.    Finding a duty to protect the property would be inconsistent with the RFS legislation in particular s 25 which says:

(1) An officer of a rural fire brigade or group of rural fire brigades may, if persons are, or property is, endangered or likely to be endangered by a fire … (b) destroy, pull down, shore up or remove, or cause to be destroyed, pulled down, shored up or removed, any buildings or structures or parts of buildings or structures on any land,

If the only way to contain the fire was to drive a bulldozer over it, that could be done to protect the village and provided it was done in good faith would not expose the RFS to liability.  ‘A man may justify pulling down a house on fire for the safety of the neighbouring houses’ (Malverer v Spinke (1538) 73 ER 79, 81 (and yes, the reference to 1538 is correct)).  If you have the power to destroy the building you can hardly be liable for failing to save it (Board of Fire Commissioners v Rowland [1960] SR(NSW) 322).

The property owner cannot sue the RFS for not having VF qualified fire fighters.  The RFS has the resources it has, both in money terms and in terms of volunteers and cannot be sued for not responding with that which it does not have (Civil Liability Act 2002 (NSW) s 42).

‘The moral of the story is … : make sure you have insurance cover for losses occasioned by fire on your premises’ (Stannard v Gore (2012) EWCA Civ 1248, [50] (Ward LJ)).

Conclusion

The conclusion has to be, subject to any specific direction to the contrary, that you turn out and do the best you can but in doing the best you can you have to take ‘reasonable care’ for, and ensure so far as is ‘reasonably practicable’, the health and safety of everyone, the firefighters, bystanders, people in the property etc but what that means depends on all the circumstances.  You have to consider the risks, what is the most effective thing that can be done without exposing people to clearly unacceptable risks (do not let the BF firefighter actually enter the building), and do the best you can.

I don’t think the law would expect any more, or less.


Categories: Researchers

ALS Paramedic as volunteer with St John (WA)

5 April, 2014 - 22:22

This question appeared as a comment on the post ‘Alcohol and Refusing Treatment’ (3 April 2014, ) but the question warrants its own post.

 Michael, I have a curly question for you. I am a very experienced paramedic, currently working in a remote capacity in remote Western Australia. On my time off I volunteer for the local state ambulance service. I have been told in no certain terms that when I work on the volunteer ambulance that my ALS skills “magically” disappear.

In the ambulance we do have ALS equipment, but I have been told I am not allowed to use it. This is my question, where do I stand if I get a patient who needs ALS support and we are remote without any close ALS support, if the patient has a poor outcome on account of no ALS intervention , where do I stand if the relatives find out that a ALS paramedic was in the back with the patient, but did not use their skills. Can I be held liable??

My colleague Ruth Townsend and I address similar issues in  ‘Crossing the line – the law and ethics of going beyond the wire’ ResponseJournal of Paramedics Australasia (forthcoming).  Pending that paper (which I believe is in the current issue) I’ll address the issues here.

The common law concept of vicarious liability says that an employer must accept the liability for the negligence of an employee (see my earlier post, ‘Qualifications v Experience’ (21 February 2014).   My correspondent tells us he is a volunteer, not an employee.  There is some doubt about whether or not an organisation is vicariously liable for the negligence of a volunteer.  I have no doubt they will be, but I have to concede there is debate (and see the discussion in my book, Emergency Law, (4th ed, 2014, Federation Press)).   Most emergency services legislation provides that volunteers are protected and often provide that if there is any liability it is to be borne by the agency (see for example, Victoria State Emergency Service Act 2005 (Vic) s 42; Health Services Act 1997 (NSW) s 67I).  In WA there is no ambulance service legislation (see my earlier post ‘Legislative compliance for WA Paramedics – what legislation?’ (12 February 2014) so there is no specific Act to look to.

In WA the Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA) is relevant.  That Act, in s 6, says ‘a volunteer does not incur civil liability for anything that the volunteer has done in good faith when doing community work.’   If the volunteer would, by the application of the ‘normal’ law be liable, then the organisation for which they are volunteering is liable (s 7).   ‘Community work’ is defined in s 3 and without going through that in detail, I think it is unquestionable that volunteering for St John (WA) would constitute doing community work for a community organisation.   Section 6(3) says the volunteer protection does not apply if, at the time, the volunteer:

… knew or ought reasonably to have known that at the relevant time he or she was acting — (i) outside the scope of the community work organised by the community organisation; or (ii) contrary to instructions given by the community organisation;

With all that background let us now consider the situation that involves my correspondent.  Someone in remote Western Australia rings triple zero for an ambulance. They are not ringing a particular paramedic; they are ringing St John.  St John despatch the ambulance with the crew that they have chosen, trained and equipped.  They turn out in their St John uniform, driving a St John vehicle.  They clearly represent St John.   The corporate entity that is St John cannot turn out except by its staff (including volunteers) so these people are clearly not turning out for their benefit, or because they have been personally asked, but because they represent – they are – St John Ambulance.

St John ambulance owes a duty of care to its patients (Kent v Griffiths [2000] EWCA Civ 25).  They have a duty to provide reasonable care taking into account all the circumstances in their operation including the reliance on volunteers and the distances that apply in WA.  In this case we assume that ‘in the ambulance there is ALS equipment, but the paramedic has been told he is not allowed to use it. The patient needs ALS support and they are remote without any close ALS support.  The patient has a poor outcome on account of no ALS intervention.’   Let’s put that picture in clearer focus – the patient needs care that the person in the back of the ambulance is competent to give, has the equipment necessary to give it, but choses not to.   If you were that person (or their family if they die) what would you do?

Let us assume you want to sue.   You have two options; sue the paramedic and/or sue the relevant ambulance service. The ambulance service owes a duty to their client and its duty is to act reasonably.  They know they are providing services in remote WA and here they have a person who needs ALS support, a person on board who knows how to give it and the necessary equipment, but they don’t because the service has told them not to. Why has the service told them not to?  Is it a proper risk assessment, where they have looked at potential risks, control measures and decided the most appropriate response was to prohibit this conduct.  Or was it some insurance concern; that the service is saying ‘don’t treat as our insurance won’t cover you’?  Whether or not they have insurance does not, however, determine whether they are legally liable.

Let us think about that – there are two risks.  One is that the ALS officer tries to administer some ALS treatment and makes a mistake (not just that there is an adverse or less than good outcome, but there is a negligent mistake that makes the situation worse).  The other risk is that the ALS officer does not administer the necessary care, care that he or she is aware the patient needs, knows how to do it and has the necessary equipment. The risk of an adverse outcome must be higher by not doing something that one knows is needed rather than by doing what one is trained and equipped to do.  Sure there could be liability if there is both negligence and an adverse outcome, but that is less likely than the adverse outcome of not giving the treatment.

(This all sounds familiar to the discussion on doctors and the duty of care – see ‘Doctors as ‘good Samaritans’ – do I have to stop?’ (23 March 2014) and the case of Lowns v Woods (1996) Aust Torts Reports 81-376.  Remember that no-one’s been sued for attempting to help, but there has been liability for not helping.)

The injured patient may also want to sue the paramedic who also owes a duty of care to his or her patient.  They knew what they patient needed, they had the necessary supplies and they didn’t do what they knew was warranted.  Why not? Because their agency had told them not to.   What is their primary duty?  To act in their patient’s best interests or to honour the agencies direction?   The paramedic may be concerned about s 6 of the Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA) and that they are acting ‘contrary to instructions’.  Now that section cannot be taken literally if it were the agency could avoid liability by instructing volunteers ‘not to be negligent’.    As with the common law of vicarious liability there would have to be consideration as to what that section actually means and when it applies.

The paramedic can see the patient and may be aware of what the possible consequences of their actions are. Whilst paramedics are not required to volunteer, having done so and having responding and having the equipment at hand a court could ask was it reasonable to withhold the treatment.  As quoted in many earlier posts, the test

… calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. (Wyong Shirt v Shirt (1980) 146 CLR 40, 48)

What is the risk to the patient of withholding the treatment v the risk of giving it?  There is no ‘expense, difficulty and inconvenience’ in giving the treatment if the operator is trained and has the equipment.  There are conflicting responsibilities in particular the responsibility to obey the services instructions but are they sufficient not to administer the treatment if that will have implications for the person’s survival or long term recovery?   A court could easily conclude that a paramedic was not acting reasonably in withholding treatment from someone that needed it, and when the paramedic could administer it, just because someone told them not to.

The paramedic may want to rely on the Volunteers etc Act which says ‘a volunteer does not incur civil liability for anything that the volunteer has done in good faith’ and argue that they acted ‘in good faith’ by following the direction not to administer needed treatment that they were competent to give and where they had the necessary equipment.  In my book I said this about ‘good faith’:

… in California … it was said, in relation to a ‘Good Samaritan’ statute, that to act in good faith was to act with “that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation” (Lowry v Mayo Newhall Hospital 64 ALR 4th 1191 (Cal 1986), 1196). The New South Wales Court of Appeal held that acting ‘bona fides’ (that is in good faith) meant that a defendant fire fighter “… did not act from any improper motive – maliciously, from personal hostility, or spite, or dishonesty” (Vaughan v Webb (1902) 2 SR(NSW) 293). In the Australian High Court,McTiernan J, when considering a statutory immunity that applied to the New South Wales Fire Brigades, said that the concept of “good faith” referred to an act that was done “without any indirect or improper motive” (Board of Fire Commissioners v Ardouin (1961) 109 CLR 105, [1961] HCA 71,115).

In summary to act in ‘good faith’ the Good Samaritan must be acting with the motive or intention to help the person in need.  The Australian Federal Court suggested however that there must be more than just honesty and no improper purpose was required, they said there must also be:

… evidence that a real attempt was made to do properly the very thing for which immunity is sought: this may involve following an established system, or set of procedures.(Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290, at 468-9.)

Acting, not in the patient’s best interests, but because of a fear of liability or, more particularly given you presumably don’t think you will be negligent, fear of lack of insurance cover, is not acting in good faith. Acting to protect your position rather than the patient is not good faith.  It was to avoid that (legitimate) self interested concern that good faith type provisions were written!   (Personal liability of the paramedic would be easier to establish if paramedics were members of a recognised, registered heath profession).

So ‘where do I stand if the relatives find out that a ALS paramedic was in the back with the patient, but did not use their skills?’  I’ll try to sum it up with a table, assuming in each case there is an adverse outcome and where the treatment is given, it is given without due care and skill:

 

The treatment is not given The treatment is given The ambulance service The ambulance service will be liable, it owes a duty to its patients and has failed to allow care to be given by a qualified person with access to the necessary equipment.  Would need to be able to show that the direction was due to a legitimate risk assessment, not to try and avoid liability or remain within the terms of an insurance contract. The ambulance service will be liable for the negligence of its volunteers.  Irrespective of the Volunteers etc Act the patient would and could argue that the service is liable, in accordance with the common law, for the negligence of its agents. The paramedic The ambulance service will be liable – Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA) s 6. 

The paramedic may also be liable.  He or she has taken on the care of the patient and his or her ALS skills cannot magically disappear. You cannot un-know what you know and you have access to the necessary equipment.   It will be a question of what is their duty (given they are not obliged to volunteer) and whether it was reasonable to follow that direction. That in turn would be affected by the patient’s condition, how badly they needed the ALS intervention and the risk of giving the intervention v the risk of not giving it. May be liable if acting contrary to instructions Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA) s 6 but that would depend on the exact terms of any instructions.

 

The biggest legal risk has to be not giving the treatment (assuming that it is of critical importance).   Allowing the treatment only exposes the ambulance service or the paramedic to risk if the treatment is negligently given.   Vicarious liability is to ensure people injured by negligence get compensation.  An employer who uses employees should not put those they injure to the further risk of looking to an employee for compensation when the employer is in a much better position to meet those expenses.  All those arguments apply with equal force in this context.  Without going through all the legal argument, I’ll go out on a limb and say in my opinion, absent gross misconduct, the ambulance service would be liable for its volunteers both if they give the treatment in question, and if they don’t.

So what of the paramedic?  Well there could be liability if they negligently administer the ALS treatment and also if they don’t.   Again the bigger risk has to be not giving treatment that you know is needed and where you have the necessary equipment at hand.  Remember too, that if paramedics want to be recognised as professionals they have to act as professionals.  To go back to my earlier question, a professional’s primary duty is to act in their patient’s best interests.

Would I just administer treatment using my ALS skills?  I would if a person’s life depended upon it or to avoid permanent or long term disability; but short of that I would approach the service and begin negotiations to ensure that they have a system in place to recognise prior learning.  If they are not prepared to do that, as a professional, one would have to rethink whether one was prepared to volunteer.  You cannot simply ‘turn off’ what you know and what you can do (see also ‘Volunteer nurses and their skills’ (12 December 2012 http://emergencylaw.wordpress.com/2012/12/12/volunteer-nurses-and-their-skills/.


Categories: Researchers

Alcohol and refusing treatment

3 April, 2014 - 09:29

Today’s correspondent writes:

I’m a paramedic within Victoria and my question relates to the capacity of a patient to refuse medical treatment and/or transport to a medical facility if intoxicated. At what point is the patient unable to refuse when the patient has consumed alcohol? How do we as paramedics decide if a patient’s intoxication is at a level that affects their competence?

A person’s right to refuse treatment does not decrease or disappear because they are intoxicated, but their capacity may.  A person has decision-making capacity if they are able to understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision (In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 169).  If they can’t do those things, for whatever reason, then they lack relevant competence and treatment that is reasonably necessary and in their best interests can be given (Re F [1990] 2 AC 1])).

In Neal v Ambulance Service of NSW [2008] NSWCA 346:

Mr Neal (the plaintiff) suffered a serious blow to the head whilst walking alone on the streets of Hamilton, near Newcastle. He was discovered by police, who called an ambulance. He rejected assistance from the ambulance officers and, being clearly inebriated, was taken into custody by the police … ([2], Basten J).

Mr Neal’s injuries were much more substantial and he:

… suffered a variety of ongoing disabilities following the assault. Some, he accepted, were caused solely by the blow to the head. However others, particularly a right-sided weakness (hemiparesis), were said to have flowed from the failure to take him to hospital when he was discovered in the street by the police. He brought proceedings in the District Court for negligence against the State (as responsible for the negligence of the police) and the Ambulance Service of New South Wales (“the Ambulance Service”)…’  ([4], Basten J).

His claim against the Ambulance Service related to their failure to advise the police that they could not examine him or treat him as he was refusing their assistance, but the police, on taking Mr Neal into custody under the Intoxicated Persons Act 1979 (NSW) (now repealed) should take him to hospital.   In the Court of Appeal Basten J (with whom Tobias JA and Handley AJA agreed) said:

The ambulance officers gave evidence that, in the circumstances, they could not examine or treat the plaintiff or take him to hospital, without his consent. They clearly did not have his consent. Although there was a case run at trial that greater efforts should have been taken to obtain his consent and carry out a more complete investigation, her Honour rejected that complaint and it was not reagitated on appeal. ([16], Basten J).

(What – “there was a case run at trial that greater efforts should have been taken to obtain his consent and carry out a more complete investigation, her Honour rejected that complaint and it was not reagitated on appeal” – means is that it was argued in the original case that the paramedics should have done more to get consent but that argument was lost, that is the trial judge found no fault in that regard, and the plaintiff/appellant did not argue, in the Court of Appeal, that this finding by the original judge was wrong).

Critically, then, no-one tried to argue that Mr Neal was not competent to refuse consent or that treatment should or could be given without his consent.  Even though he was ‘clearly inebriated’ his right, and his capacity, to refuse treatment remained.   (The Court of Appeal found there was no liability in this case because even if the paramedics had advised the police that they had been unable to examine Mr Neal but, in their view, he did need assistance and even if the police had transported him to hospital rather than the police cells, the evidence showed that Mr Neal would have also refused treatment at the hospital so the outcome would have been the same.  The court did not have to decide whether or not the paramedics had a duty to inform the police, or whether there failure was negligent, as it would not have made any difference, that is any alleged negligence was not the cause of Mr Neal’s disabilities.)

So the unhelpful answer to the first question – At what point is the patient unable to refuse when the patient has consumed alcohol? – is when their level of intoxication means that they are unable to understand the nature of the suggested treatment, weigh up the consequences of and/or communicate their decision.   That does not mean that they are making a decision that is not in their best interests; if they can understand your advice that they should go to hospital, that they have suffered an injury that needs attention, if they can in fact consider that and weigh it up against their competing desire to keep drinking, or go home, or do whatever else they want to do, and they can make that clear to you, then they retain their competence.

The second question is ‘How do we as paramedics decide if a patient’s intoxication is at a level that affects their competence?’ That is a clinical question and needs to be answered by the relevant clinicians in the Ambulance Service.  Surprisingly the Ambulance Victoria Clinical Practice Guidelines (http://www.ambulance.vic.gov.au/Paramedics/Qualified-Paramedic-Training/Clinical-Practice-Guidelines.html) do not appear to mention ‘consent’ at all.  CPG A0106 Mental Status Assessment describes ‘a systematic method used to evaluate a Pt’s mental function’ but doesn’t add any detail on what the implications of that assessment are.  The Guidelines therefore give no assistance in answering this question or how to assess capacity generally (see Steer, B. (2007) ‘Paramedics, consent and refusal – are we competent?’ Australasian Journal of Paramedicine 5(1) (http://ro.ecu.edu.au/jephc/vol5/iss1/4)).

In the absence of clinical guidance, paramedics need to apply their own judgment remembering that their duty is not to treat and save everyone, but to treat people in accordance with fundamental ethical principles which include the right of people to make their own choices.  As Steer says (p 4)

… in the face of a valid refusal, the duty of care of the paramedic is not independent of the will of the competent patient – the paramedic’s duty is not absolute, but is limited by the patient’s will and their understanding of what is in their overall best interests, medical and otherwise. Not all interests are medical in nature – ‘best’ is not just a physiological qualifier. Thus, autonomy is always a moral concept; beneficence is sometimes a medical concept. Hence paramedics attend persons, not just patients, and in Australia belong to the appropriately named Ambulance Service, not Ambulance Force

Therefore do not assume that just because a person is intoxicated, or just because they appear to making an unwise decision, they are incompetent.  One needs to carefully consider whether the person is able to understand the nature of the suggested treatment, weigh up the consequences of and communicate their decision.  Further, if they are refusing treatment is their refusal informed and does it cover the situation that has in fact arisen? (Re T [1992] 4 All ER 649).  In Re T, Staughton LJ said (at 669)

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

A similar dilemma may exist for paramedics who may be held to account (though as employees, they are will not be personally liable) if they impose treatment upon a person who has refused consent; or fail to treat a person when there is no valid refusal.  Facing these dilemmas and accepting that it will in many cases come down to an exercise of professional judgment is part of what it is to practice as part of a ‘profession’.  The relevant legal precedent, Neal’s case, did not doubt that an intoxicated person may refuse consent; it’s now up to you to decide if they have, and if they are competent to do so.


Categories: Researchers

SACFS who’s in charge?

1 April, 2014 - 17:42

I am a level 3 Incident controller as well as a Regional Commander with the South Australian Country Fire service. At a recent meeting I discussed with the audience that in South Australia the Incident Controller reports to the Regional Commander. This brought about some robust conversation on the definition of “report” and whether or not the Incident Controller has delegated responsibility and or accountability for the successful completion of the incident. If he/she does then where does the Regional Commander, who has the operational responsibility and accountability for the Region, stand? What are their responsibilities/accountabilities with respect to the incident happening within their region after the Chief Officer appoints a Level 3 Incident Controller.

In South Australia, the Chief Officer of the CFS ‘… has ultimate responsibility for the operations of SACFS…’ (Fire and Emergency Services Act 2005 (SA) s 60(4)).  The Chief Officer may delegate to another member of the CFS (and others) (s 66).   The Chief Officer may establish regions (s 67), brigades (s 68) and determine the command structure within the CFS (s 70).   Further, ‘Each officer or member of SACFS must recognise the authority and obey the directions of an officer to whom that officer or member is subordinate’ (s 70(10)).

Section 96 says that in the prescribed circumstances, in short a fire or other emergency in the country and where no other agency is expected to exercise control, ‘an incident controller or, if an incident controller has not been appointed, the most senior member of SACFS in attendance, may assume control (and all members of SACFS, and all other persons present at the scene, will be subject to his or her control).’  An incident controller is ‘the person for the time being appointed to be the incident controller for the fire or other emergency in accordance with procedures determined by the Chief Officer.’

The Act provides for the appointment of Regional Officers (s 70(1)) but makes no mention of their role in operations.  The Australian fire agencies have all adopted the Australian Inter-agency Incident Management System or AIIMS which is also unhelpful on the relationship between the incident controller and the region controllers or commanders.

A critical statement in the AIIMS doctrine is ‘there is only be one Incident Controller for any incident’ (Australian Fire and Emergency Services Authorities Council (AFAC), Australian Inter-service Incident Management System (4th ed, 2013) 27 ); further ‘The ultimate responsibility for managing an incident always remains with the Incident Controller whether or not an Incident Management Team has been established’ (AIIMS p 86).   That is inconsistent with statutory provisions such as s 60(4) which says, in effect ‘The ultimate responsibility for managing an incident always remains with the’ Chief Officer.  The Incident Controller must be accountable to the Chief Officer (see also s 96(3)(a)).

In my book, Emergency Law (4th ed, 2014, Federation Press), I wrote (footnotes omitted):

 As noted above, the AIIMS manual says: “The ultimate responsibility for managing an incident always remains with the Incident Controller whether or not an Incident Management Team has been established”.   In context that is correct, whatever responsibility the incident controller has rests with that controller even though he or she has delegated some functions to others. However, in a broader context it is incorrect and can lead to confusion and poor outcomes.

During the 2009 Victorian Bushfires Royal Commission, the chief officer of the Country Fire Authority, the chief fire officer from the Department of Sustainability and Environment and the Chief Commissioner of Police were criticised for their failure to supervise their staff including the incident management teams. The Royal Commissioners said:

The Commission observed a disturbing tendency among senior fire agency person­nel – including the Chief Officers – to consistently allocate responsibility further down the chain of command, most notably to the incident control centres.

That would be consistent with the view in AIIMS that, having appointed an incident controller it was up to that controller to exercise control over the response. The Royal Commission noted, however, that:

Although the Country Fire Authority Act 1958 vests responsibility for controlling the prevention and suppression of fires in country Victoria in the Country Fire Authority as an organisation, CFA standard operating procedures make it clear that within the agency “ultimate responsibility for the suppression of fires” rests with the Chief Officer.

The right of the chief officer to control “all brigades” is set out in statute. An incident controller has no similar, statutory authority. The incident controller is appointed by the chief officer to exercise the chief officer’s powers but such a delegation does not “amount to an abrogation of responsibility or a transfer of accountability”…

It follows that absent any statutory authority, incident controllers appointed in accordance with AIIMS are subject to the direction and control of their senior officers. If they are employees, they are also expected to obey the reasonable direction of their employers…

See also my submission to the Victorian Green Paper on emergency management entitled ‘Who is in charge’, which you can download here.

That quote says ‘absent any statutory authority’ but, as noted, there is statutory authority in South Australia; that authority is in s 96.  That IC’s authority is to ‘assume control (and all members of SACFS, and all other persons present at the scene, will be subject to his or her control)’.   Does that displace the chain of command and s 70(10) ie the obligation to obey senior officers?    On one view it does, ‘all members of the SACFS … will be subject to his or her control’ but that cannot be correct.  A member of the SACFS 100 kilometres away from the fire cannot be subject to the IC’s ‘control’, nor can members at other fires nor is the Chief Officer.  The only logical reading of the section is that ‘all members of the SACFS, … present at the scene, will be subject to his or her control’.    When read in that more limited way it will not apply to the Region Commander if he or she is not ‘at the scene’ but even if he or she was, there is still s 70(10) and the obligation to obey senior officers.

A chain of command makes sense to ensure that operations are carried out effectively by imposing a check or supervision. A member who is acting as Incident Controller does not act solely on his or her own initiative.  The need to obey the Chief Officer is beyond question.  Further the IC will be expected to apply the CFS operating procedures and act in accordance with his or her training.   In effect he or she is following ‘commands’ and a superior officer would be expected to ensure that is in fact the case, so the chain of command remains.  The IC does not operate in a vacuum but within the CFS including the regional and command arrangements that the Chief Officer has put in place.

Although there is ambiguity between s 70(10) and s 96, in the absence of any direction by the Chief Officer it is my view that the provisions can work together.  The IC is in charge of operations and all members of the SACFS are subject to the ICs control but the IC remains subject to direction from his or her senior officers (assuming the Region commander outranks the IC).    That situation could be changed by the Chief Officer making alternative arrangements in the agency doctrine and the job descriptions of the Region commander and Incident controller.

The problem really arises if the agency, which is required to have an incident management system (Fire and Emergency Services Regulations 2005 (SA) r 5) , simply adopts AIIMS without tailoring it to take into account the ‘chain of command’ and making clear the answers to questions such as this one.    Without that clarity the Region commander may well seek to exercise some degree of supervision and control and the incident controller may take both s 96 and the doctrinal principle of ‘only one controller’ to believe that he or she is not accountable to the Region commander. That tension is evident in today’s question.  A better approach is that if the Region commander is of the view that he or she needs to give direction to the IC, he or she should take on the role of IC and that is the position I argued for in my submission to the Victorian Green Paper.

In short the law does not provide the answer to the question ‘What are [Region commander's] responsibilities/accountabilities with respect to the incident happening within their region after the Chief Officer appoints a Level 3 Incident Controller’?  What the law does say is that it is up to the Chief Officer to determine the chain of command and the procedures for appointing an incident controller.  If there is ambiguity in those provisions then it is not the law but the agency’s own procedures and doctrines that need to be adjusted to clarify the ambiguity. The question needs to be directed, not to me, but to the Chief Officer.


Categories: Researchers