This question comes from Victoria:

I have tenants on a family owned farm. I have installed a fire fighting system and fire retardant distribution system which I hope will deal with even the most extreme events. It is, by definition almost, an untested system (of my own design).

I do not know what my liability will be to the operators of the system. Four men are required to run the system. The tenants have volunteered to help. The wife of one of the tenants objects to the use of fire retardants because they will introduce nitrates onto a patch of native grasses.

Do you know if there have been earlier cases where land-owners were held responsible for the failure of a fire plan? It occurs to me that I should simply send the tenants to a CFA safe area as soon as the first smoke appears on the horizon.

If I employ someone to work on the fire control system will I be breaking the provisions of the various Work-Safe regulations? It seems to me that I will inevitably be in breach of the requirement to provide a safe workplace, unless I can prove beforehand that my system is foolproof, which it may not be.

There are lots of issues raised here and in accordance with my stated policy (see https://emergencylaw.wordpress.com/about-2/) this is not legal advice on a particular case. I will raise some question that I would want answers to if I was giving legal advice and my correspondent will be advised to find a practising lawyer of his or her choice and seek specific advice.

To the questions; first Do I know if there have been earlier cases where land-owners were held responsible for the failure of a fire plan? Yes, and a case that comes to mind is Cook v R & M Reurich Holdings Pty Ltd [2004] NSWCA 268. This was an action alleging negligence by the defendant that operated a conference centre. During a quilters conference there was a fire and the operators asked those attending the conference to help remove valuables from the property and to fight the fire.   At [21] Stein AJA (with whom Beazley and Santow JA agreed) said:

Having devised an emergency plan, the respondent then failed to put it into operation. It was reasonably foreseeable that the appellant, or any of the ladies who were invited to help, could be injured while helping and in the vicinity of the fire. This is especially so when the women (including the appellant) were moving in and out of the house removing possessions and doing so at the request of Mrs Reurich, who was participating in selecting clothes and other objects to be saved from the fire, smoke and other likely damage.

And at [33]:

It was the owner’s failure to implement the emergency plan that lead directly to the appellant and other quilters attending the fire, trying to assist the respondent to fight it and to remove their possessions. If the plan had been put into operation the appellant and the quilters would not have involved themselves with the fire. The appellant’s injury occurred because of her involvement with the fire. It would not have occurred if she was away from the fire, assembled in a safe area. The appellant said that she would have obeyed any order to assemble at a safe place. There is no reason to doubt this.

That’s different to having a fire plan, implementing it but just getting a poor outcome but it is still informative for reasons I’ll discuss, below.

The nature of the tenancy.

Ownership of property is generally described as a ‘bundle’ of rights. The person who owns a block of land has many rights with respect to that land including a right to exclusive possession and a right to quiet enjoyment. You can tell other people to ‘get off’ and you should be free to enjoy your land without undue interference from others. When a property is leased the owner gives up some of the bundle of rights to the tenant. The tenant then has the right to exclusive possession so he or she can tell other people, including the landlord, to leave. They also have the right to quiet enjoyment so they can enjoy their occupation without undue interference from the landlord.

What’s not clear in this question is the true nature of the tenancy.   Do the tenants have exclusive possession of the farm or is there some joint or share farming going on? Do the tenants occupy the farm house but my correspondent is continuing to operate the farm? Is the fire fighting system intended to protect the farm house? other farm buildings? farm assets? crops and pastures? What are the terms of the lease? If the tenants are required to actively take steps to protect the property are they more there in the nature of caretakers rather than tenants? Answering these questions would be essential to reach a conclusion on the questions asked and my correspondent is advised to take all the documents to a solicitor of his or her choice and give specific instructions for specific advice.

For the sake of a general discussion I will assume that the landlord is still running a business on the farm but has leased the farm house.   I will assume the tenants have indicated that they will volunteer to help with fire fighting but are not required to do so by the terms of the lease.

Now to a second question: Should I ‘simply send the tenants to a CFA safe area as soon as the first smoke appears on the horizon?’ The tenants have the right to quiet enjoyment and exclusive possession of the property. A leasehold interest is a property interest (ie the leaseholder holds some of the bundle of rights that the owner has transferred to them). It follows that the landlord has no more authority to ‘send the tenants’ anywhere than the CFA does; and the CFA can’t require people who hold a pecuniary interest to evacuate (see Mandatory evacuations (December 26, 2015).

Finally: I employ someone to work on the fire control system will I be breaking the provisions of the various Work-Safe regulations? The answer is quite possibly.   A person conducting a business or undertaking (and note that I’m assuming ‘the landlord is still running a business on the farm but has leased the farm house’ has a duty to ensure a safe workplace. Under the model Work Health and Safety Act 2011 the concept of ‘worker’ includes a volunteer but Victoria has not adopted that legislation. In Victoria the relevant Act is the Occupational Health and Safety Act 2004 (Vic). This Act is still the old model imposing duties between employees and employers.   A volunteer is not an employee (s 5).   Even so (s 23):

An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.

That must include the tenants, so there is a duty to look out for them.   People who help with firefighting are being exposed to risk so the immediate questions one would ask are: are they trained? Have they been issued appropriate PPE? What is the evacuation plan should it all fail? Are there standards for the design of fire fighting equipment and have they been followed? What knowledge and experience did the designer have in making the system.

Assume a worst case scenario- a fire comes, the tenants stay and activate the fire fighting system and it fails to adequately protect them.   A key issue then will be ‘did it fail to protect because it was a poor design or was the day just an overwhelming day but the design was in fact ‘reasonable’?   Either way the questions asked above will be relevant.

As for It seems to me that I will inevitably be in breach of the requirement to provide a safe workplace, unless I can prove beforehand that my system is foolproof, which it may not be if you think you will be in breach, do something to stop that – get an engineer or someone else to inspect it and give an opinion.   But the system doesn’t have to be ‘foolproof’ only ‘reasonable in all the circumstances’.

Farmers are the sort of people who constantly design their own systems, whether they are reasonable fit for purpose is a question of fact – that is a farmer may well design a great system that works a treat. The fact they are not an engineer and didn’t read a book on the subject won’t matter. On the other hand they may design a system that is obviously flawed and that any outside observer would say ‘that’s not going to work’ or anything in between. The question of whether it complies with the requirements of the Act will depend on what happened and what could and should have been done differently (see Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1).

In light of the recent Victorian fires I’m asked:

… if you’d write a piece outlining the evacuation legislation in the various states?

It’s my understanding that not all States have mandatory or enforceable evacuation orders, including Victoria which has recommended Lorne residents to leave (happy to be corrected here).

Who can order it? Under what circumstances?

I’m not going to go chapter and verse into all states but for a discussion that may be a bit out of date but still a useful guide, see Elsie Loh, ‘Evacuation powers of emergency workers and emergency-service organisations in Australia’ (2007) 22(4) Australian Journal of Emergency Management 3-7.

The reality is that every state has some provision where an officer in charge or the state emergency manager (by whatever title) can ‘order’ an evacuation and usually can accompany that with a threat of force. As noted the circumstances will differ with each jurisdiction.

The biggest exemption in Victoria where it is still the case that a person who has a pecuniary interest in a property cannot be compelled to evacuate (see Country Fire Authority Act 1958 (Vic) ss 30 and 31 but see contra Emergency Management Act 1986 (Vic) s 36B).

The reality is however that no-one is really going to enforce these. The resources it would take to actually force someone out of the danger zone and the risk to the people (police, CFA etc) to do it would be too burdensome. For further discussion see my earlier post Legality of forced evacuations during NSW Bushfires (January 10, 2014).

According to Asia Pacific Fire Magazine, Victorian Coroner ‘Ian Gray found that if power company AusNet Services had followed basic safety standards the [2009 Marysville] fire [where 40 people were killed] may have been prevented’.

But did the coroner really say that?  And did the coroner’s report really give ‘extraordinary details which have never before been aired in public’ (Steve Lillebuen ‘Coroner finds AusNet could have prevented Marysville’s devastating Black Saturday bushfire’ The Age (Online), 4 December 2015).

The actual coroner’s report can be found on the website of the Victorian Coroners Court.  A Victorian coroner:

… investigating a fire must find, if possible—

(a) the cause and origin of the fire; and

(b) the circumstances in which the fire occurred.  (Coroners Act 2008 (Vic) s 68).

For the purpose of making those findings, a coroner ‘may hold an inquest’ (s 53(1); emphasis added).  An inquest is the sort of inquiry that gets reported in the news where witness are called and cross examined in open court.    A coroner can investigate a fire without holding an inquest.  A person may request that the coroner hold an inquest (53(2)).  Where a request has been received, the coroner must advise the person who made the request whether or not an inquest will be held (s 53(2)).    In deciding whether or not to hold an inquest:

… a coroner should liaise with other investigative authorities, official bodies or statutory officers—

(a) to avoid unnecessary duplication of inquiries and investigations; and

(b) to expedite the investigation of deaths and fires. (Coroners Act 2008 (Vic) s 7).

When concluding an investigation into a fire, a coroner may

… make recommendations to any Minister, public statutory authority or entity on any matter connected with a death or fire which the coroner has investigated, including recommendations relating to public health and safety or the administration of justice. (s 72).

In this case the coroner was ‘investigating’ the fire.  He had to determine the matters set out in s 68 and also deal with a request for an inquest.   In rejecting an application for an inquest the Coroner noted that this fire had already been the subject of an extensive police investigation and had been the subject of civil litigation that had settled without any admission of liability.  The coroner made no recommendations to prevent a future fire or to promote public health or safety.

The police investigation, after initially suspecting arson (‘Firefighter Ron Philpott denies arson claims’ News.com.au, 6 May 2009; Margaret Rees ‘Australian firefighter cleared of arson charges in 2009 Victorian bushfire’ World Socialist Web Site, 2 August 2011; Michael Bachelard and Cameron Houston ‘Police ignored Black Saturday evidence ‘ The Age (Online) 3 July 2011):

… concluded that the cause of the Murrindindi fire was a failed conductor between poles 5 (11525) and 6 (11526) on a section of the Murrindindi power line, which contacted and electrified a boundary fence that then ignited vegetation under the boundary fence’ (Finding Without Inquest into Murrindindi Fire [71]).

Because of the ongoing police investigation and to avoid prejudicing any possible criminal trial, the cause of the Murrindindi fire was not investigated by the 2009 Victorian Bushfires Royal Commission (Finding Without Inquest into Murrindindi Fire [30]).

Civil proceedings against SP AusNet and others settled for $300 million (see ‘Marysville/Murrindindi ‘Black Saturday’ settlement approved’ (May 29, 2015)).  In that case it was admitted that a power line had ‘failed as a result of arcing between the conductor and a stay wire supporting the relevant pole, the conductor broke and fell, draping itself over a fence abutting the roadside reserve; and the conductor was live and this caused at least one strand in the fence to become electrified’ [75].  Even so AusNet did not admit that this was the cause of the fire.  They argued (at [77]):

… that the fire started away from the fence, and that it was not caused by the electrification of the fence. Among other things, it contended that the arcing between the conductor and the stay wire most likely occurred after the fire had started (as a result of smoke in the air) and that the electric current in the fence would not have been sufficiently strong to ignite a fire.

The result of the coroner’s investigation was a finding (at [90]) that:

1. the Murrindindi fire occurred between 7 February and 5 March 2009; and
2. the origin and cause of the Murrindindi fire was a failed conductor between poles 5 (11525) and 6 (11526) on a section of the Murrindindi power line, which contacted and electrified a boundary fence that then ignited vegetation under the boundary fence line along the west side of Wilhelmina Falls Road, Murrindindi.

That is the coroner accepted the findings of the police investigation.

Discussion

The Coroner’s finding that it was the failure of the power line that caused the fire, and not the fire that caused the power line to fail, is a clear attribution of causation that is contrary to the argument put by AusNet in the civil litigation.  In that sense it is ‘the first time, power company AusNet Services has been held directly responsible in court for causing the 2009 bushfire’ (Steve Lillebuen ‘Coroner finds AusNet could have prevented Marysville’s devastating Black Saturday bushfire’ The Age (Online), 4 December 2015).

We are told that the fire ‘could have been prevented if a power company had followed basic safety standards, according to an explosive coronial finding’ (Lillebuen) and that the Coroner ‘found that if power company AusNet Services had followed basic safety standards the fire may have been prevented’ (Neil Bibby, ‘Coroner finds AusNet Services could have prevented one of the 2009 Australian fires’ Asia Pacific Fire Magazine, 10 December 2015).

Actually the coroner didn’t say any of those things.   The coroner did report on the police investigation and quoted from evidence that had been obtained by police including expert’s reports that the power line was too close to the ‘stay’ that was holding up the power pole and that the way the pole was wired ‘does not meet required standards both at the time of measuring (2011) and on 7 February 2009’ ([51]).    A report delivered to the police did say (at [55]):

The risk of fallen conductors is foreseeable and proper application of known technical knowledge and existing procedures should have prevented the failure on the Murrindindi feeder and the subsequent damage that resulted.

In that case the coroner was not yet reporting on anything not previously known.  This was not the coroner’s findings and he did not explicitly adopt the report.

What the State Coroner was able to do, that the police were not, was call upon AustNet to produce various documents and reports (Coroners Act 2008 (Vic) s 42).   The Coroner said (at [56]):

Despite investigators knowing that, following the 7 February 2009 fire, certain augmentation and re-alignment and repairs works were carried out on the electrical hardware at pole 6 and having obtained signed statements from Mr Mitchell and Mr Sullivan, who undertook the repair work, to that effect, AusNet were unable to locate or supply any records relating to these works.

The coroner did not find that AusNet ‘kept no records of repair work completed on the faulty power line’ (Lillebuen), only that they were unable to now locate those records.

So what?

Not much turns on all of this; the things that the reporters say the coroner said can be implied.  They were not said by the Coroner but in reports to the police.  The coroner did not formally adopt or endorse them but he did reach the same conclusion as the police so the endorsement may be inferred.  It is of course a less dramatic headline to say ‘Experts say that the Black Saturday bushfire that destroyed Marysville could have been prevented if a power company had followed basic safety standards – and Coroner reproduces parts of their report in finding’.  The reporting is, as reporting often is, much more dramatic than reality.  The Coroner did not find that the fire could have been prevented, he did not find that there had been any criminal or negligent conduct as that is not the role of the coroner. A Victorian coroner is specifically prohibited from making a finding that any person is guilty of an offence (s 69).   Finding that one party had been ‘negligent’ is not explicitly ruled out in the Act, but in any event the Coroner did not make such a finding.

Further, the coroner’s findings are not ‘binding’.  As noted the civil action against AustNet has already settled and cannot be reopened.  If there was someone who was not part of that class action and they now wanted to sue AusNet they could not rely on the coroner’s findings as proof of causation.  A coroner’s court is not bound by the rules of evidence (s 62); the findings are not admissible in subsequent proceedings (Evidence Act 2008 (Vic) s 91).  Further, AusNet have not resiled from their position that the power line did not cause the fire – ‘”We don’t agree with the [Coroner’s] findings as they were determined without a hearing and the evidence upon which they are based was untested,” a company spokesman said’ (Lillebuen). It follows that if there were further litigation over this fire, the issue of causation could again be revisited, just as it was in other litigation despite the extensive investigation by the 2009 Victorian Bushfires Royal Commission (see ‘Settlement in Black Saturday litigation is approved’ (December 23, 2014); ‘More from the Black Saturday litigation’ (September 6, 2011)).

So what’s the point?  The coroner’s findings have endorsed the conclusion of the police, the community is now better informed and investigators of future fires will be aware how this fire was caused.  This may help some to understand what happened and it may relieve people such as the unfortunate Mr Philpott being subject to the trauma of 2 ½ years of investigation as a suspected arsonist.  The details of the investigation are now quite public and all of that is for the good.   Despite that, and despite nearly 7 years, a Royal Commission, a number of civil cases, extensive police investigation and now this inquiry there is no legally binding determination of what caused the fire.

‘Michael Gunter, an energy industry commentator who had asked for an inquest into bushfires and power line safety’ may believe that ‘the coroner’s finding is a concerning development’ but he may be disappointed.  ‘”I strongly feel that someone should be held accountable for what happened,” he said’ (Lillebuen) but this finding will not hold anyone ‘accountable’.   There was no particular criticism of the individual workers who responded when the power first went out and who for reasons explored and accepted by the coroner ([56]-[61]) failed to see that the conductor had fallen before they re-energised the line.  Lillebuen reports that ‘Energy Safe Victoria said it had insufficient evidence to prove to the required criminal standard that AusNet had breached its general duties on Black Saturday’ so there is unlikely to be any criminal prosecution of AusNet.  AustNet has paid out $260.9 million damages (‘Marysville/Murrindindi ‘Black Saturday’ settlement approved’ (May 29, 2015)). Is that accountability or are ‘Bushfires; the price we pay for electricity’ (May 20, 2014)?

This question comes from a fellow lawyer and a volunteer with St John Ambulance (Queensland).   My correspondent asks:

A question I haven’t seen directly addressed concerns whether an on-duty volunteer has a positive duty to act and come to the aid of an injured person?  I raise this following on from your remarks in “RFS volunteers as roadside good Samaritans”.  You may wish to comment on a factual scenario as follows:

• Suppose I am a member of a voluntary community organisation in Queensland – St John Ambulance.
• St John Ambulance provides first aid services at an event, but is not paid to attend.  A donation may be requested – but not a fee for service “contract”.
• I agree to perform the particular duty by signing up through the St John system.
• I attend the duty wearing the St John Uniform.
• I am approached by a injured person at the event seeking assistance.
• Do I have a positive duty to act and attempt to assist the injured person? When? Limitations i.e. within my scope of training, etc?

Of course, in most cases the St John volunteer would render assistance – that is why they volunteer, etc.  But is their sufficient proximity to hold a tortious duty to act?  Public policy immunity?  Clearly, they have a duty of care once first aid is commenced.

I raise this as I’m not certain whether the proximity arguments in Lownes v Woods in establishing a duty to rescue would apply in the above factual matrix.  In addition, I note that Deane, J in Jaensch v Coffey made it clear that policy would also need to be considered in the formulation of a duty of care, saying “the notion of proximity is obviously inadequate to provide an automatic or rigid formula to determining liability”.

You may have touched on these issues in earlier articles, however, I was unable to find anything directly on point.  Where do you side is this ideological debate?  With the liberalist assertion that it is illegitimate to use the coercive power of the state to enforce positive duties of beneficence in terms of encroaching on individual liberty or the more philosophical utilitarian argument for a duty to rescue.

I don’t see this is part of the ideological debate about whether or not there is a duty to rescue at all – that debate revolves around the question of a duty to come to the aid of a stranger – a person with whom the potential rescuer has no other relationship. Some people do have a duty to ‘rescue’, the traditional relationships are teacher/student, gaoler/prisoner, doctor/patient etc. What made Lowns v Woods (1996) Aust Torts Reports 81-376 unique is that Dr Lowns was asked to travel to assist Patrick Woods even though the young boy was not and had never been his patient.

Jaensch v Coffey (1984) 155 CLR 549 was a case about negligent infliction of mental harm and trying to determine to whom a duty of care was owed, I don’t think it’s really relevant here for reasons I’ll give below.

What the scenario I’m asked to consider is where St John are on duty for an event organiser and a participant of the event seeks assistance. This is not about a duty to rescue a ‘stranger’ this is about performing the very duty one is there to do. If we go back to the start of negligence law and Donoghue v Stevenson [1932] AC 562 (the famous snail in the ginger beer case) it was said we owe a duty to those most likely to be affected by our acts or omissions. The issues of ‘proximity’ that my correspondent raised reflect debates in the cases over how to limit that duty as we can imagine many fanciful steps that would see liability extending forever. Courts know that can’t be how it would work so there are some outer limits, but in this case the people most directly affected are the event organiser and the potential patients.

The event organiser needs (or wants) first aid attendance at the event so there is an agreement with St John. If they don’t perform the duty they have agreed to do then the event organiser cannot provide the service agreed, or reasonably expected, by participants. If there is a first aid tent but the first aiders refuse to treat someone who is directly affected by that decision but the patient.

The fact that St John may not receive a fee for their attendance does not mean there is no agreement.   St John agree to attend and provide first aid services and in return, if nothing else, the members get to go and do what they chose to volunteer for and for which they receive the reward that they perceive they get. The organiser relies on St John, if they thought St John were going to show up but not treat people they wouldn’t invite them and would get someone else to provide the first aid services. There is both an exchange of promises and reliance sufficient in my view to give rise to a contract.

So St John owe a duty to the organisers and the patients. That duty would arise both under the common law of negligence and under contract. I cannot see anyone seriously running the argument that the volunteer on duty did not have a duty to treat a person who attended the first aid post seeking assistance.

I don’t see this cases raises any of the issues raised by Lowns v Woods or Jaensch v Coffey. This is not about treating a stranger (see Who to treat? A question for St John first aiders (June 30, 2013)) or extending a duty to new areas. Here the presence of the duty to treat is axiomatic.  If one did want ot consider the arguments in Lowns v Woods (1996) Aust Torts Reports 81-376 in that case the doctor was approached at his surgery where he was ready to see patients but not yet seeing any patients. He was approached because he was a doctor and the patient was clearly physically close as the person seeking assistance had run to the surgery. If that was sufficient to establish liability it would be more so here. Here the first aider is approached at the place where they are holding themselves out to provide first aid, they are ready to see patients, the patient has come to them so they are close and unlike the doctor who had an appointment system to see his pre-existing patients, the St John volunteers are saying ‘we are here for everyone at this event’. If Dr Lowns owed a duty of care (which he did) then the St John volunteers in the circumstances described here do too; even more so.

Who would be liable? It might be argued that the volunteer has no duty as he or she is a volunteer, but St John would have the duty. St John agreed to provide first aiders and if the person who attended does not give first aid, St John has failed in its obligations. If I was the lawyer and if the patient could prove that the failure to administer first aid made their case worse you would run the case that both the volunteer and St John were negligent. If the volunteer was negligent St John would be vicariously liable and if St John were negligent they would be liable in their own right.

As for vicarious liability one might argue that the failure of the first aider meant they were ‘on a frolic of their own’ and there should be no vicarious liability but remember that the point of a negligence action is to ensure that the person who suffers a loss receives compensation. To allow St John ‘off the hook’ would deprive the injured person of an effective remedy. The person on duty is there representing St John in their uniform, their failure is St John’s failure so I don’t think a court would accept that St John should not carry the responsibility for their failure.

To conclude

In the scenario described there would be a duty to treat. This is not about a duty to treat a stranger. There is no law directly on point because a) first aiders don’t get sued, b) first aiders on duty one assumes actually treat people who come to them and c) the case would never get to court on that issue. The presence of a duty in that case is axiomatic, no-one could seriously argue there was no duty to treat.

In my view the first aid organisation (that for this example we’ve been calling St John) would be liable both in its own right for failing to provide the agreed service and for failing in its duty and also for negligence of its volunteer.

This is a concerning scenario – my original correspondent provided more detail but to keep the question general I have edited the original question.

My SES Unit was asked by Police to help search for a mentally disturbed person who was known to be armed with a knife.  The person was believed to be a threat to themselves not to others.  Even so the police involved in the search were wearing their normal appointments (gun, baton, capsicum spray, Tazers).   SES members were however tasked to the search and there insufficient police numbers to ‘buddy’ each SES member with a police officer.

On member raised a concern as to safety and was advised to “call on the radio” but there were not enough radios to go around and one could have been subject to a quick and violent surprise attack with no chance to call for help; and what could another member do who might have been close by?

I know I could have just “unvolunteered” and went home but that would not help my fellow members.  I know the normal rules for self-defence apply but we had nothing to protect ourselves should the person have used a knife against us.

• Could we reasonably “arm” ourselves knowing the level of threat they are being sent into? Could one, considering its rough bushland carry a non SES issue, knife or machete? Or pick up a big stick?
• If all SES members refuse to help, what could the Police do?
• Does the SES response cover this situation?
• Who will be responsible for any injury to a SES member. Police or SES?
• Who will support any SES member, who injures such a person in this type of incident, against any legal threats civil or legislation?
• The Police would be operating under the NSW Mental Health Act, Where does the SES members stand under this Act in this situation?

The law of self-defence is set out in an earlier posts see

• Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police – Part 1 (October 5, 2015);
• Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police – Part 3 (October 6, 2015) and
• “No liability for police shooting” – number 2 and “Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police” – Part 5” (November 5, 2015).

‘Arming’ oneself is difficult.  Of course carrying a stick is not in itself an offence.  Carrying a knife might be illegal, carrying a machete would be.    An offensive implement is ‘anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property’ (Summary Offences Act 1988 (NSW) s 1B(3)).  It is an offense to have an offensive implement in a public place (s 1B(1)).

If you are carrying a stick or a knife or a machete for the purpose of ‘injuring’ or ‘menacing’ a person that is an offence unless you have a ‘reasonable excuse’.  One might argue that looking for a missing mentally disturbed person gives rise to a reasonable excuse.  In Taikato v R (1996) 186 CLR 45 Mrs Taikato argued that carrying a ‘pressurised canister of formaldehyde’ was lawful.  She told police ‘she had had the canister for a few years and that, although she had never used it, she carried it so that she could defend herself if someone attacked her’.  The High Court of Australia rejected her argument. They said that although using a weapon may be lawful in self defence.  Chief Justice Brennan along with Justices Toohey, Mchugh and Gummow said:

The law authorises a person to assault another person in self-defence only when certain conditions are fulfilled. No legal right of self-defence arises until there is a reasonable apprehension of attack by the person who is assaulted…  Because the existence of a right of self-defence cannot be determined until after the fact of a particular attack or threatened attack, it makes no sense, absent an actual or threatened attack, to talk of possession for self-defence as a “lawful purpose”. Self-defence in the colloquial sense is not a “lawful purpose” … Action in self-defence can only be taken for a “lawful purpose” when there is a lawful right entitling the person in danger of attack to take certain limited steps to use force against another person. It is only after the circumstances of the attack and the defendant’s response are evaluated that a court can determine whether the person was exercising the right of self-defence. Only then can it be determined whether a particular weapon was used for a “lawful purpose”. Accordingly, possession of a dangerous article for the purpose of “self-defence” is not possession for a “lawful purpose” …

Whether it’s a ‘reasonable excuse’ requires consideration of:

(a)        the immediacy of the perceived threat to the person charged; and

(b)        the circumstances, such as the time and location, in which the thing was possessed; and

(c)        the type of thing possessed; and

(d)        the age, characteristics and experiences of the person charged.”

For the SES volunteers in this question the ‘immediacy’ of the potential threat is much closer than for Mrs Taikato, but even so the question of whether or not ‘arming’ oneself was reasonable can only be determined after the fact taking into account all the factors.  It’s hard to imagine a court would accept the SES arming themselves with a knife was ever a reasonable response to the risk as other responses are available.  In short I would suggest it would not be ‘reasonable’ for the SES to arm themselves with a stick or a knife.  If members are that concerned, they should simply refuse to take part in the search.

If the SES members refused to help, the police would have to find another solution, perhaps call in more police.   No doubt they could complain to SES higher authorities but the better response would be to refer the matter up the chain of command of both organisations.

Does the SES response cover the situation?  I’m not sure what is meant by that but one of the functions for the SES is ‘to assist, at their request, members of the NSW Police Force … in dealing with any incident or emergency (State Emergency Service Act 1989 (NSW) s 8(1)(g)).   Taking part in this search would be a legitimate SES function.   It follows that if a member of the SES were injured they would be entitled to compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).

Whether anyone would be found to be negligent or liable under the Work Health and Safety Act 2011 (NSW) would depend on all the circumstances and what happened.  Remember that under the WHS Act the PCBU has to consider what is ‘reasonably practicable’ which includes

(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.

Importantly there would be a risk in not searching for the person. The delay that may be occasioned in bringing more police to the scene may make that risk bigger. If the belief that the person is only a threat to themselves is based on the best available intelligence then it may be that even though it would be better to use police that is not ‘reasonably practicable’.  In all the circumstances it may not be a breach of the WHS Act to use SES Volunteers but, one has to remember, that assessment really is a case by case judgement.

Assume the SES member did ‘arm’ him or herself and used that weapon when they found the person.  In terms of civil litigation, members are not liable for acts ‘done in good faith’.  Whilst that could be debatable one has to remember that the aim of civil litigation is to ensure a person who is entitled to compensation receives it.    Actually arming oneself particularly with a machete may make the good faith argument hard to sustain but given the members were tasked with the search and depending on the specific instructions given, I suspect a court would want to find the SES (and so the NSW government) liable (should there be any liability) rather than a member.

Criminal liability is personal.  That means if the member were charged with an offence under the Summary Offences Act or assault or worse where force is used in circumstances that do not amount to lawful self-defence then it is the individual who is liable.  Even if the government agreed to pay the fine, the SES or the police don’t get the criminal record or go to gaol on the member’s behalf.

Members of the SES don’t have any authority under the Mental Health Act 2007 (NSW).  Police may apprehend a person who is mentally ill and posing a threat to themselves or others. They may do that on their own initiative (s 22) or at the request of a treating medical practitioner (ss 19 and 49) or paramedic (s 21).     The SES could assist the police in the search but have no specific power to detain the person if they find them.  The police can of course ask for assistance so if a police officer were attempting to detain the person the SES could help because it is actually the police officer that is exercising the authority.  Police may use ‘reasonable force’ in the execution of their duties (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 230) and just as that may include the use of a dog, so too calling upon the SES to ‘lend a hand’ to restrain someone may be a ‘reasonable’ use of force.    If the SES found the person, and he or she was not acting violently or threatening suicide, the best action would be to try and keep everyone calm and wait for the arrival of police or, ideally, a mental health professional.  If the person was trying to kill him or herself it is lawful to use reasonable force to prevent a suicide (Crimes Act 1900 (NSW) s 574B).

Important disclaimer

Clearly I am not making comments that could be applied to the specific search.  I do not have all the facts or know the circumstances so this has to be read as a general statement of some relevant legal principles. If the members are concerned about the risk they were exposed to this should be raised through an appropriate chain of command rather than debated here.   As noted this has to be read as an exploration of general principles only.

This question comes, I assume, from a WA volunteer who asks:

If a Local Government (Council) delegates its authority to the CEO, can the CEO then sub delegate its authority and responsibility/actions to another staff member, this is separate to the appointed operational positions like the Chief Bushfire Control Officer or Fire Control Officer. This question is more in relation to administration and specifically … Local Laws which allows a terminated member to appeal the termination to Council/ Local Government

The power of a local government to delegate the performance of its functions is found in the Bushfires Act 1954 (WA) s 48.  Section 48(1) says ‘A local government may, in writing, delegate to its chief executive officer the performance of any of its functions under this Act’.  Section 48(3) says, however, that ‘A delegation under this section does not include the power to subdelegate’.  Section 48(4) says ‘Nothing in this section is to be read as limiting the ability of a local government to act through its council, members of staff or agents in the normal course of business’.

What follows is that the Local Government may delegate to the CEO the powers and responsibilities that are vested in the Local Government to the CEO so that his or her decision on any matter is a decision of the Local Government.  The CEO cannot appoint someone else to take on those roles but he or she can assign work to the council staff or the like to assist him or her in the performance of those functions.

Local government functions that could be delegated to the CEO might include:

13        Request the FES Commissioner to authorise a bush fire liaison officer or another person to take control of all operations in relation to a fire

17(7) & 18(5)  Vary restricted burning times

22        Arrange with land holders and a bush fire brigade to co-operate in burning fire-breaks

23        Prohibit burning during prohibited burning times

24B      Authorise an officer of the local government to require a person to produce the permit to burn issued to them under the provisions of the Act

24F      Give permission to use an incinerator that is within 2m of a building or fence to burn garden refuse during prohibited burning times

24G      Further restrict burning of garden refuse

25        Give certain approvals for the lighting of fires

25A(5) Prohibit an exempt person from lighting a fire to which the exemption relates for such period as  specified

27        Prohibit, or in some cases permit, the use of tractors or engines except under certain conditions

27D      Impose Requirements for carriage and deposit of incendiary material

28        Seek to recover the expenses incurred in responding to a fire that has not been controlled by the occupier of the land as required by s 28(1)

33        Require the occupier of land to plough or clear fire-break (this section also refers to a ‘duly authorised officer’ so other may be authorised for that purpose)

36        Expend moneys in connection with control and extinguishment of bush fires

37        Obtain and keep current a relevant policy of compensation insurance for volunteer firefighters

38        Appoint a bush fire control officer

40        Join in appointing and employing bush fire control officers

41        Establish and maintain one or more bush fire brigades

42        Join in establishing bush fire brigade

46        Prohibit, or from time to time postpone the lighting of a fire

50         Maintained required records

52        Apply to the Minister to have the district or part of it declared an approved area for a bush fire brigade

59        Prosecute of offences (the power to investigate and prosecute offences can also be delegated to ‘to its bush fire control officer, or other officer’ (s 59(3)

67        Appoint an advisory committees

68        Appoint regional advisory committees

Local governments may make local laws with respect to ‘the organisation, establishment, maintenance and equipment with appliances and apparatus of bush fire brigades to be established and maintained by the local government’ (s 62(1)(b)).  Local laws must be made in accordance with the provision of the Local Government Act 1995 (WA).   The power to make local laws cannot be delegated to the CEO.

What follows is that the Local Government can make local laws for the operation of a brigade that can provide for the membership, and removal of membership of members of the Brigade.  The local laws cannot be inconsistent with the Bushfires Act or a regulation made under the Act (s Bushfires Act 1954 (WA) 62(2)).    Assuming there is no inconsistency the local laws could provide for an appeal

• To the council which could delegate the decision making power to the CEO (Local Government Act 1995 (WA) s 5.42). Subject to the terms of the delegation, the CEO could further delegate that decision make power (s 5.44)
• An appeal to the CEO who could, subject to the terms of the local law, delegate the decision making power (Local Government Act 1995 (WA) s 5.44)
• An appeal to another person or office holder identified in the Local Law.

In Boyle v Yeing [2015] WASCA 241 (1 December 2015) the Court of Appeal in Western Australia upheld a finding that a farmer was liable to his neighbour when a fire that was set to burn off wheat stubble escaped onto the neighbouring property destroying valuable farm equipment.    The case turned on its particular facts rather than saying anything interesting about the law, but I’ll repot it in any event.

The defendant, Mr Boyle ‘was an experienced farmer and was experienced in carrying out stubble burns’.  Further he was ‘also the chief bushfire control officer for the Shire of York and had held that position for 20 years’ ([7]).   He determined to burn off the stubble on 18 May 2009.  At that time of year he was ‘not required to obtain a permit or to notify his neighbour of his intention to burn’ ([6]).   The burn commenced at 9.30am and was concluded at 2.30pm.   At the conclusion of the burn Mr Boyle along with his son and an employee (an Irish backpacker who had been on the property for 2 months and whose only experience with burning off had been gained on that property) drove around the burn and decided that the burn area had been extinguished and was now safe.  Mr Boyle and his son left the area to attend to other matters.  The employee was instructed to remain patrolling the burned area for another hour.  At 4pm this employee ‘considered that the fires were ‘completely out’’ ([11]) so he left too.  Of course the fire wasn’t completely out and an ember carried to the neighbouring property and started the fire that damaged the machinery standing in the stubble paddock of that property.

There was no doubt that Mr Boyle owed a duty to take reasonable care in how he managed the fire.  What became critical in the decision was the fact that the weather had changed since the burn commenced so that by 2.30pm there was a 19km/h wind blowing toward the neighbour’s farm and Mr Boyle knew that there was dry stubble on that farm with harvesting equipment standing amid the stubble.  Accordingly the trial judge found that the patrolling should have continued until dusk when it would be easier to see if there were still embers in trees or in the wheat stubble.    With that knowledge the experienced Mr Boyle left his inexperienced employee to do the final patrols and come to his own conclusion that it was safe to leave.

The trial judge found that there was negligence. On appeal Mr Boyle argued that the evidence did not support the trial judge’s conclusions but the court of appeal rejected each submission finding that the decisions of the judge were open on the evidence and so the finding stands.

There are two interesting observations to make.  First Mr Boyle was in a difficult position of trying to argue that everything he did was in fact and law reasonable, even though it was clearly not enough as the fire did spread and cause damage.    Although the courts try to look at these issues at the point of time of the decision making it is hard not to be influenced by knowledge of what actually happened.  Mr Boyle, and others, may well think that what he did was ‘reasonable’ or ‘what I would have done’ but that would have left Mr Yeing with the cost of the damage to his property.  It’s always hard to say one took ‘reasonable precautions’ against a particular outcome (in this case the fire spreading) when that very outcome occurs.

Second, one of the things a court has to consider when deciding whether or not the defendant’s actions were reasonable is the ‘social utility of the activity that creates the risk of harm’ (Civil Liability Act 2002 (WA) s 5B).   In another Western Australia case, Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation And Land Management [2012] WASCA 79, the Department was not liable for the damage to the plaintiff’s grape crop caused by smoke from a planned hazard reduction burn.  An issue in that case was the ‘social utility’ involved in a burn designed to reduce the bushfire hazard to a community. The majority of the appeal judges in that case found that there was a significant social utility such that the Department was not liable even though they were aware of the risk to the plaintiff’s property and had been asked to defer the burn (see No liability for damage to grapes caused by WA hazard reduction burn (April 25, 2012).

In Boyle v Yeing the court found that there was no social utility ‘in the burn in that it was done to advance the appellants’ private economic interests’.   The issue of social utility will clearly play a bigger role when a fire is being set by a government agency in order to protect communities and community assets over a private fire set for private gain.  If one is going to set a fire for private gain there can be no ‘trade off’ to say that the gain to the private landholder is ‘worth’ the potential loss to the neighbour.

This question comes from a volunteer with NSW SES.  My correspondent says:

I understand that if we are in uniform and/or in a SES vehicle we must stop at the scene of any accident that we come across. I also carry in my car a spare set of Orange SES PPE. I have used this on occasions when travelling in my own car and come across an accident (where I have stopped, put on PPE and rendered assistance until Fire Rescue arrived). Is the first statement correct and in regards to the second statement can I use SES PPE and what obligations does this make to me personally and to the SES?

As for whether or not the SES volunteers needs to stop when in an SES vehicle see:

• RFS volunteers as roadside good samaritans (February 4, 2015); and
• Non-operational staff travelling in marked emergency service vehicles (NSW) (October 29, 2014).

Can you use the PPE?  I’ll answer this from a lawyers’ perspective (as you would expect) and answer what obligations or difference would it make?

The first thing to consider is of course, safety.  The point of bright orange PPE with reflective stripes is that it is visible, day and night.  As a matter of common sense you put it on just as any worker with high-vis PPE would or should put it on if they found themselves working at a roadside accident.

What difference would it make if the PPE said ‘SES’ or ‘ABC Mining Company’?  The NSW SES is the combat agency for floods, storms and tsunami.  It is also the case that the SES is ‘to carry out, by accredited SES units, rescue operations allocated by the State Rescue Board’ (State Emergency Service Act 1989 (NSW) s 8).   That does not mean that every member is trained in all aspects of SES tasks.  The SES member who comes across an accident may spend all their volunteering time in a comms room and know nothing about road crash rescue or tarping a roof.  Alternatively they may be an experienced rescue operator and community first responder.   What they can do to assist at the accident will depend very much on their training and experience, not on the mere fact that they are a member of the SES.    The same is true of the person from ‘ABC Mining Company’; they may be an underground miner with no relevant training, or they may be a company paramedic.  What you might expect from them depends on what they know, not what their shirt says.

Let us assume something does go wrong and there’s some legal action (remembering NO-ONE’s been sued for rendering first aid at an accident) then the fact that you are in the SES could lead to an argument that you should have reacted as the ‘reasonable’ SES member but that is some fictitious ‘average’. Again the ‘reasonable’ SES member may have no more than a senior first aid certificate so the mere fact that you are in the SES cannot mean that you are expected to perform as a paramedic or some other rescuer.  Not all SES members are rescuers so provided you did what you can within the limits of your training then you’ve acted reasonably.

If the concern is that your attempt at first aid made the situation worse, you would be able to rely on the Good Samaritan legislation (Civil Liability Act 2002 (NSW)) to the effect that there can be no liability for acts done ‘in good faith’ that is with a genuine intention to help the person.

Whether you could rely on the protection provided by the State Emergency Service Act 1989 (NSW) s 25 would be debatable.   That section says:

(1) A matter or thing done by:

(a) a member of the State Emergency Service, including a member of an SES unit…

does not, if the matter or thing was done in good faith for the purpose of exercising the functions of or assisting the State Emergency Service or the Consultative Council, subject the member, officer or volunteer personally to any action, liability, claim or demand.

At the time of being at an accident that you have just come across you are not performing any of the functions set out in s 8 though you would be once the other emergency services arrive and take control of the scene and if they ask you to continue with whatever task you are doing (s 8(g)).

Whilst I say the application of s 25 is arguable, I would find it hard to believe that either the SES or their insurer would want to be seen to argue that stopping and helping at a car accident was not an appropriate thing for an SES volunteer to do.  The community funds the emergency services, including the SES to provide services in an emergency.    It is part of the National Strategy on Disaster Resilience that we should develop resilient communities that must, in part, mean having members of the community who can assist such as SES and RFS volunteers.  To suggest that they are not performing an SES duty when they stop and assist at emergency pending arrival of the other emergency services may be arguable, but it would be politically difficult to maintain.

Conclusion

I can see no legal reason why a member of the SES would not, or should not, put on their PPE if they stopped at the scene of a car accident.  Their primary concern at that point is their own safety and that is what PPE is for.

I am a volunteer with St John Ambulance (NSW) and an interesting scenario came up at our training. We’re responding to an unconscious patient (suspected drug overdose) at a musical festival. There is no one else with the patient that knows him, so we are unable to ascertain his identity for the completion of our patient record and/or handover to paramedics.

The question is: are we allowed to go through the patient’s wallet/personal items to look for some sort of ID?

The nature of the patient’s injuries here are irrelevant, ie it doesn’t matter if they’re unconscious due to a suspected drug overdose, head injury or unknown causes.  The relevant principle is the principle of necessity. Remember that any touching no matter how slight may be a battery, but as Lord Goff said in Collins v Wilcock [1984] 3 All ER 374 at 378 ‘so widely drawn a principle must inevitably be subject to exceptions’.  One exception is the principle of necessity that justifies the provision of medical treatment to those that cannot consent.  Again it was Lord Goff who said, In Re F [1990] 2 AC 1:

… to fall within the principle [of necessity], not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.

His point was that this doctrine was not just a doctrine of emergency, but of necessity.  Is it necessary, ‘acting in the best interests of the assisted person’ to look for ID? I would think it is.  You need to search them:

1. To locate and take care of their personal items, wallets, phones, keys etc are likely to get lost in treatment and transfer so collecting them together is in the person’s best interests;
2. To remove items from pockets that are going to cause discomfort or further injury eg to stop them lying on their phones, keys etc and this again is in their best interests.
3. To find a more complete history of the patient, you may find identifying material that reveals a relevant medical history that causes you to review the original diagnosis eg you believe they have a suspected drug overdose and you find further drugs that may add evidence to confirm your suspicions but equally you may find evidence that they are in fact diabetic, or epileptic or have some other condition that makes you rethink your working diagnosis. Provided the search is for that purpose and not, say for law enforcement, then again it is an action taken in their best interests.
4. Finding ID will, as my correspondent first raised, allow the first aiders to complete their patient record and if they hand that to the paramedics it will allow the records to be held together. If the St John record has no name on it, then at some point someone is going to question who does it relate to and if they can’t positively link it to a patient it becomes less than useless.   Ensuring that there is a complete record to contribute to continuity of care will also be action taken ‘in the best interests of the assisted person’.

There is probably also a common law right to search the person to protect the first aider ie to locate things that may be on the person that could injure the first aider such as sharps or weapons.  In saying that I’m drawing (in my mind) an analogy with the common law powers of police to search a person on arrest (Clarke v Bailey (1933) 33 SR(NSW) 303).  That’s not a clear parallel but I think it could be argued.

Certainly you will want to find out if a person has sharp items in their pockets as they pose a risk to the patient as well as the first aider, but that can’t justify searching their bag to look for weapons or other sharps or just to satisfy your curiosity.

Conclusion

You can search a person who cannot consent to treatment, and go through their wallet and personal items provided the action is ‘reasonable’ and your motivation is to find information you need to act in their best interests.   You might collect their personal items together and go through their wallet to find ID and any medical history, but having done that you stop.  There is no need to try to access their phone or go through their bag to see what else you can find.

This question comes from a West Australian bushfire volunteer:

I was wondering if you can help clarify if volunteer bushfire brigade members are insured while undertaking controlled burns for land owners on private property.

It has long been my understanding that this is not a “Normal brigade activity” and therefore not covered by Section 37, bushfires Act 1954 unless it’s duly authorised by the local government.

35A. Terms used

normal brigade activities means the following activities when carried out by a volunteer fire fighter —

(a) the prevention, control or extinguishment of bushfires;…

(c)  any bushfire prevention activity including the burning, ploughing or clearing of fire-breaks or any other operation, including but without being limited to, the inspection of fire-breaks or other works and the survey of areas for the purpose of detecting fire or ascertaining the need for precautions against the outbreak of fire, but not including the activities of an owner or occupier providing a fire-break or fire prevention works on his own property in order to comply with a notice given under section 33(1) or a local law made under section 33(5a);

(d) demonstrations, exercises, fundraising, promotions, public education, competitions or a training process for volunteers; …

(h) attending an incident where the skills of a volunteer fire fighter or the operation of fire fighting equipment may reduce or remove a perceived threat to life or property; …

The first thing to understand is that insurance is a gamble between the insured and the insurer. For a payment of a premium the insured effectively bets with the insurer that an event will happen. For example when you pay a premium to ensure your car you are betting with the insurance company that you are going to crash that car that year. If you do crash the car you “win” and the insurance company has to meet your legal liability to cover damage to any other vehicle and repair your vehicle. If you don’t crash the car, the insurance company “wins” because they get to keep your premium. The insurance company wins more than it loses and so makes a profit.

The point of that story is that the relevant person is the “insured” who enters into a contract with the insurer to transfer their risk. What that means is that the presence or absence of insurance does not determine liability. In this context that means if the bushfire brigade or the council that operates it is liable for the negligence of a firefighter they are liable whether or not they have insurance. If they have insurance and the insurance company meets the liability, if they do not then the liability must be met from general revenue. It also means that it is the risk that the insured faces that is the subject of the insurance.

The question for a firefighter then, is not “are we insured?” but “who will be liable?”

As noted in an earlier post, Work health and safety responsibility for Western Australian bushfire brigades (November 14, 2015), many people have responsibility for the safe operation of a West Australian bushfire brigade but the starting point must be the local government authority that has established the brigade (bushfires Act 1954 (WA) s 41).

Undertaking a controlled burn on private property could well fall within the definition of a “normal brigade activity”. Such an activity may be for the “prevention” of a bushfire (s 35A (a)), provides training for volunteers (s 35A (d)) and may “may reduce or remove a perceived threat to life or property” that would exist if the firefighters were not there. In particular s 35A(c) provides for hazard reduction work. It should be noted that it does not include work on private property where that work is being undertaken to comply with a notice given under section 33(1).

Section 33(1) provides that a local government may serve a notice on a landowner requiring him or her to take fire prevention measures. Where the landowner does not meet the requirements of the notice the local bushfire control officer may step in to do what has to be done and then bill the landowner for the expenses incurred.  The definition of “normal brigade activities” only excludes action taken to comply with that notice. Action taken to reduce bushfire hazard where no notice is been received is a “normal brigade activity” and is not excluded by s 35A(c).  Action taken where a notice has been received and where the appropriate steps have been followed is specifically authorised by s 33(4). Where action is required to comply with a local law, then again the local government may take steps to do what needs to be done and then bill the landowner (s 33(5b)).

Finally s 33(6) says:

A local government may, at the request of the owner or occupier of land within its district, carry out on the land, at the expense of the owner or occupier, any works for the removal or abatement of a fire danger…

The local government may use its resources, which include the bushfire brigade, to complete that work. Presumably most “controlled burns for landowners on private property” are conducted pursuant to this section and the local government charges for the use of fire brigade resources. What follows is that if the bushfire brigade is conducting these activities with appropriate authorisation then the members are clearly performing their duties as a volunteer firefighters. If they are conducting operations that are authorised by s 33 they are clearly representing the local government authority.

Even if firefighting is not authorised under s 33 it may be a “normal brigade activity” within the meaning of s 35A. If a landowner approached the bushfire brigade and asked them to come and help may agree to because they thought it was a useful training process that the landowner has asked them not as individuals but as members of the bushfire brigade and they are clearly turning out as part of that brigade.

The members might be on a “frolic of their own” if for example, a landowner contacted their neighbour, who happened to be the brigade captain, and asked if he could come and help with the burn. If the brigade captain said “sure and I’ll ask a couple of mates and will borrow the fire appliance” then it may be that that brigade captain is acting in a personal capacity. Whether the firefighters know that or not would depend on what they are told.   In that case it would be arguable that any liability would fall to the landowner on his behalf the fire prevention work is being done.

To return to the question asked which was could I “help clarify if volunteer bushfire brigade members are insured while undertaking controlled burns for land owners on private property”?

When the firefighters are performing a function that is a normal brigade activity within the meaning of s 35A or authorised under s 33 then clearly they are acting as the brigade. If they were somehow negligent and the fire damaged either the land owner’s property or a neighbouring property or injured someone, then any civil liability would attach to the local government authority that owns the brigade. The firefighters would not be liable because they are not acting in their own interest but as part of the local government’s brigade. Is not a question of insurance: if the local government has insurance in the insurance company will meet the liability, if they do not have insurance that they will need to meet the liability from their general revenue.

It is my view that in most cases conducting a hazard reduction burn on private property will be authorised under s 33 (either subsection (4), (5b) or (6)) and brigade members who are part of the team are clearly acting as a local government resource and should there be any liability it will fall to the local government not the firefighters. The question of insurance is not relevant.

NOTE: I have not attempted to discuss whether there would be liability, what constitutes negligence or any defences that might be available under the legislation because that was not the issue in the question. My conclusion only applies if there is liability without entering to into the debate of if and when liability might be established.

I’m asked this question by a NSW volunteer but let me jump to the conclusion – lights and sirens don’t give you any rights.  Now to the question:

I was told other vehicles must give way to emergency vehicles when under lights and sirens but I’ve also been told that if you’re under lights and sirens it does not give you the right-of-way. Of course you have to take care at all times but I’m interested in know what rights does the driver of an emergency services vehicles under lights and sirens have.

The relevant provisions of the Australian Road Rules (reproduced in NSW as the Road Rules 2014 (NSW) are rules 78, 79 and 306.

Rule 78 says:

(1) A driver must not move into the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.

Maximum penalty: 20 penalty units.

(2) If a driver is in the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm, the driver must move out of the path of the vehicle as soon as the driver can do so safely.

Maximum penalty: 20 penalty units.

(3) This rule applies to the driver despite any other rule of these Rules.

(See also Making way for emergency vehicles (May 18, 2015)).

Rule 79 says:

(1) A driver must give way to a police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.

Maximum penalty: 20 penalty units.

(2) This rule applies to the driver despite any other rule of these Rules that would otherwise require the driver of a police or emergency vehicle to give way to the driver.

Rule 306 we know well and it says:

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

(a) in the circumstances:

(i) the driver is taking reasonable care, and

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

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

Rules 78 and 79 don’t give the driver of the emergency vehicle any ‘rights’.  They impose an obligation upon other drivers and if they don’t honour that obligation they can be fined up to $2200 (a penalty unit, in NSW, is $110 Crimes Sentencing Procedure Act 1999 (NSW) s 17).   But that doesn’t give the driver of the emergency vehicle the right to run into them or to expect that a driver will give way.  A driver approaching a green traffic light may not have seen, heard, understood or been either willing or able to give way to an approaching fire appliance.  The fact that they are committing an offence does not justify either assuming they will or have given way – the driver of the appliance still has to stop and make sure it’s safe to proceed before doing so.

Rule 306 doesn’t give any ‘rights’ either; it does provide that if the circumstances set out apply, the driver has a defence if he or she is issued with an infringement notice for breaching one of the other road rules.  Remember offences such as dangerous driving causing death or injury and manslaughter are not dealt with in the road rules, so rule 306 has no application if a driver is charged with one of those offences (see Tragic outcome from RFS response (April 4, 2013)).  The rule and the expectation that drivers do drive under ‘response’ conditions will be relevant in deciding whether or not the driver was driving with ‘gross negligence’ (which is what is required for one of those offences) but it is just one relevant factor, it is not a ‘defence’.

Although it’s not a statement of the law a useful way to think about lights and sirens is, at best, they constitute a request to other drivers to make way for you.

PS after posting this, a commentator wrote, in response to an earlier post (see Red/blue lights but no siren? (November 29, 2015)) that ‘Emergency driving is a privilege, not a right…’.  That’s the gist of my answer here, distilled to 8 words!

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

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

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

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

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

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

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

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

So my questions are,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Discussion

We can now return to the questions asked.

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

Yes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Victorian Paramedics treating patients inside the A+E (June 12, 2015);
• Step aside – I’m a doctor (October 17, 2014); and
• Doctors delegating authority to carry drugs (August 20, 2014).

Today’s question comes from:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So the possible legal ramifications are:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fire Hydrant and Fire Plug Indicators

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

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

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

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

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

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

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

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

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

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

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

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

A volunteer officer with Ambulance Tasmania writes:

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

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

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

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

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

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

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

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

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

Section 16 says:

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

(2)      A volunteer ambulance officer–

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Let me then return to the questions:

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

This question comes from a NSW first aider who says:

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

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

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

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

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

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

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

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