I have previously reported on the case of United Firefighters Union of Australia (‘UFU’) v Country Fire Authority (‘CFA’) [2014] FCA 17 (February 12, 2014).   In that case the UFU sought to enforce the terms of the Enterprise Agreement that had been negotiated between the UFU and the CFA.   In my original post I said:

The case arose because the UFU and the CFA had negotiated an enterprise agreement to govern working conditions in the CFA. Central to the agreement was a commitment by the CFA ‘to employ 342 career firefighters over a six year period and to conduct a minimum of three recruitment courses in each year training at least 30 recruits each’ ([2]). The CFA did not comply with that obligation so the Union raised the matter as an industrial dispute, and there was further agreement about staff recruitment which again, the CFA failed to honour ([3]).

The CFA did not offer the Court any cogent explanation for its failure to conduct the recruitment courses as it had agreed, or for its failure to train the number of recruit firefighters as it had agreed. ([6]).

The UFU commenced proceedings to force the CFA to comply with the enterprise agreement. Notwithstanding this was a negotiated agreement, the CFA had an ‘apparent about face’ ([6]) and argued that it was not bound by the agreement or the obligation to employ more staff. The Court, in part, agreed, and that raises the constitutional issues.

In that original case the trial judge found that the CFA was a trading corporation, which is relevant because the Commonwealth can make laws with respect to ‘Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’ (Australian Constitution, s 51(xx)).  Even so the trial judge found that the enterprise agreement could not be enforced as it infringed the Melbourne Principal, that is a principle that the Commonwealth could not impose conditions upon a state that impinged the State’s capacity to act as a sovereign government, in particular:

… the government’s right to determine the number and identity of the persons whom it wishes to employ, the term of appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss with or without notice from its employment on redundancy grounds. An impairment of a State’s rights in these respects would, in our view, constitute an infringement of the implied limitation.

The terms of this agreement, according to the trial judge, did infringe Victoria’s rights to determine the number of employees and could not be enforced by the Commonwealth under the Fair Work Act 2009 (Cth).

All the parties appealed to the Full Federal Court, the CFA arguing that the trial judge was wrong to find that the CFA was a trading corporation, the UFU arguing the judge was wrong to find the Melbourne Principal applied and various claims by the CFA that were described (at [216]) as ‘a tit-for-tat manoeuvre having no particular strategic end beyond seeking to reduce the role of the UFU under the Agreement’.

The Full Federal Court handed down its decision in United Firefighters’ Union of Australia v Country Fire Authority [2015] FCAFC 1 on 8 January 2015.

The CFA is a trading corporation

The Full Federal Court (Perram, Robertson and Griffiths JJ) agreed with the trial judge’s assessment that the CFA was a trading corporation even though it is a statutory authority established for a public good. In essence the Full Federal Court went through all the arguments and the judge’s reasoning and found that the judge had made no mistakes. Rather than repeat the arguments and conclusions interested readers can read my summary of the trial judge’s findings in my original post – of United Firefighters Union of Australia (‘UFU’) v Country Fire Authority (‘CFA’) [2014] FCA 17 (February 12, 2014).

The Melbourne Principal

Where the Full Federal Court disagreed with the trial judge was on the application of the Melbourne Principal. The judges of the Full Court were of the view that the principal was a restriction that limited the ability of the Commonwealth to make laws or orders that restricted the sovereign rights of the States but did not apply where the states voluntarily agreed to those restrictions. In this case the CFA entered into a voluntary agreement with the UFU and enforcing that agreement did not infringe the principle.

The other issues were technical and as described by the judges, with no particular strategic end. They were not successful and I won’t report them in detail.

Conclusion

The court did not make final orders but required the parties to go away and draw up orders that reflected the court’s reasoning so the exact outcome is not known but the essence is that the CFA will be expected to honour the agreement it entered into.   This is reassuring as it does at require an organisation such as the CFA to take seriously the agreements it enters, rather than enter them, presumably in good faith or at least with the other side expecting that it’s in good faith, and then try to argue that the agreement they entered cannot be enforced against them. Regardless of the legal merits, such an approach is unsavoury. Here the Full Federal Court has found that the law does not allow the CFA a way to avoid the agreement it had voluntarily entered into.

This question comes from a fellow academic (but from a paramedic, rather than a law school). The question relates to paramedic ‘Clinical Practice Guidelines’ or CPGs.   My correspondent says:

I’m reading an article about developing CPGs for paramedics and the (UK) author states:

Presently, however, it is unclear whether adherence to guidelines confers immunity from liability or if non-adherence increases the likelihood of being found negligent if a patient suffers harm as a result because, in English law, guidelines carry little weight.  They are considered ‘hearsay’ evidence because, unlike an expert witness, they cannot be examined and cross examined.  However, it is worth noting that in the United States, legally validated guidelines  have been used as a complete defence in a malpractice claim”.

 From: Brown, G. (2000). Developing effective clinical practice guidelines for ambulance services. Pre-Hospital Immediate Care, 4, 136–140.

I’m not sure exactly what it entailed in ‘legally’ validating a guideline, but my primary question centres on the legal protection that is conferred on paramedics in Australia by the Clinical Practice Guidelines they work under.  In relation to the quote above, would the Australian context be more similar to the English or American one, or would it be quite different in some way?

This quote misuses the term ‘hearsay’ but I shall not go into that, other than to say a CPG is not ‘hearsay evidence’.

Adherence to guidelines will not ‘confer immunity from liability’. To put it in that way suggests that if you can point to compliance that is a defence and that is all there is to it.

In Australia the relevant law will be the law of negligence and the issue there is always what was the defendant’s duty and did they act reasonably in the circumstances. We can say with confidence that a paramedic owes a duty of care to their patient. How does the ‘reasonable paramedic’ act to ensure that they provide reasonable care? They can and must comply with their training and the directions from their employer, that is they adhere to the CPGs.

So compliance with the CPGs will be evidence and almost overwhelming evidence that the care provided was reasonable in the circumstances but it’s not guaranteed. For a start there may be a case where departure from the CPG is warranted, and this is where professional judgment comes in. An example could be situations where a decision is made to ‘load and go’ rather than stabilise at the scene because of danger, some conflicting priority, the hospital is across the road etc.   Mere departure will not necessarily prove negligence.   Equally rigidly adhering to the protocol will not disprove negligence if it was clear that the treatment was making the situation worse (as opposed to merely not making it better).

I disagree that guidelines carry little weight particularly in this context. Paramedics gain their authority to practice from their employer (see ‘What is a paramedic’s ‘authority to practice?’ (August 19, 2014)).    They have to comply with their employer’s directions so the guidelines define what it is they are to do in their practice. Guidelines can be more or less flexible. One might say ‘you should consider do x, y or z’ and all you need to do to comply is in fact ‘consider’ those things and chose to do them, or not do them, on good clinical reasons. Others are less a guideline and more a rule that say ‘you must do …’ and that leaves no room to move. In any event they define what a reasonable paramedic in the defendant’s position would have done.

One of the few cases alleging negligence by an Australian paramedic turned on the issue of the service’s protocols. In Ambulance Service of NSW v Worley [2006] NSWCA 102 the patient was given adrenaline as required by the treatment protocol but suffered a known, but rare adverse reaction). At trial the plaintiff alleged that the paramedic had been negligent as the protocol called for IV adrenaline if the patient was ‘in extremis’. It was alleged that this meant at the point of death and the paramedic did not consider whether the patient was at that stage, rather he relied on various observable symptoms related to BP, pulse and respiration rate; ‘it was accepted that the indications for administration of adrenaline were satisfied’ ([59]). At [64]-[65] Basten JA (with whom Tobias and McColl JJA agreed) said:

The trial judge found that Mr Page was negligent… The reasoning to this conclusion involved two stages. The first asked whether, properly understood, the protocol applied to Mr Worley and held that it did not. The second step asked whether the mode of administration of adrenaline “chosen” by Mr Page was reasonable and answered that it was not.

With respect, this reasoning is flawed. Mr Page did not “chose” the mode of administration, or the rate of administration. What he did was to apply Protocols 8 and 201, according to their terms. That course was in accordance with his training and the directions given by the Ambulance Service …

And, as a result, he could not be negligent unless he applied the wrong protocol or applied it in circumstances where it did not apply.   It should be noted that the trial judge had said:

… recruits to the Ambulance Service obtained seven weeks training where they learn the elements of anatomy, physiology, pathophysiology and pharmacology. There follows a nine-month period of training on probation on the job. His Honour continued at [147]:

“Each officer has a set of protocols. Each set is kept up to date. Each officer is required to follow the requirements of the protocols. There is no discretion to do otherwise. Each officer who attends a patient is required to sign a completed Patient Report Form. The form must list by number the protocols that apply.”

That may be different today with university qualified paramedics and the use of CPGs rather than protocols. As noted a ‘guideline’ may allow much more room for professional judgement and discretion than would be expected from a protocol, but I suspect nothing turns on that.   Just as the paramedic in this case was not negligent for applying the protocol, a paramedic will be able to rely on a CPG as evidence of reasonable care.

All of that assumes two things. First that the diagnosis is correct, that is that the paramedic not only followed a CPG but that he or she followed the right one. Rigid and complete adherence to the CPG for the treatment for asthma will be no defence if the person was suffering from anaphylactic shock unless it can be shown that the mistake was ‘reasonable’.

Equally it is assumed that the treatment is done reasonably. Administering a drug IV because that is what is called for is fine, but its no defence if the needle is punched through the vein and the drug is administered into the tissue instead.

Finally it is assumed that the CPG is itself reasonable and based on good science. In Worley’s case it was alleged that the ambulance service was negligent for maintaining a protocol that called for IV rather than IM adrenaline. The service was able to point to an ongoing scientific debate about the best route of administration, that they were aware of, following and contributing to the debate. The science had not come down definitively one way or the other so they were not negligent for adhering to IV administration. If the science had been concluded, maintaining an out of date protocol would have seen the service, but not the paramedic, liable for negligence.

Conclusion

Compliance with a CPG does not confer immunity and, whilst ‘non-adherence increases the likelihood of being found negligent if a patient suffers harm as a result’ it is also not definitive. The question is always ‘what was the reasonable response’.   A paramedic trained in accordance with a CPG and where the CPG represents best clinical practice would be expected to adhere to that and it would be evidence of reasonable practice.

CPGs do not have a standing as law, rather they are evidence, compelling evidence but only evidence, of what can be expected in the circumstances.

This question comes from a volunteer with the NSW RFS. I wrote my original answer late on 24 January 2015. I received a comment on that answer from RFSguy who drew my attention to section 21(2)(iii) of the Rural Fires Act (1987), a section I’d missed when drafting my first response (so lesson learned, don’t try to do this at midnight). This post is different from that original post as it incorporates that section and, at the end, reproduces the useful comment from RFSguy. The original question was::

I am an officer in an RFS brigade that shares borders with a FRNSW retained station. Recently whilst on our way to refuel our cat 1 at our local service station we came across an escaped (illegal) pile burn within the FRNSW Fire district. We attempted to advise Firecom of the incident so they could let FRNSW know about the incident and respond accordingly but due to poor radio reception in the area we were unable to make contact with Firecom.

There was an imminent risk of the fire burning onto neighbouring properties and potentially impacting on some sheds etc so I instructed my crew to extinguish the fire. We were initially greeted with significant hostility from the landowner, who only relented and allowed us access to the property and the use of his dam for water supply once I presented my authority card and advised him i had the authority to enter his property and use the water to put out the fire under the rural fires act.

Once the fire was extinguished we continued on to the service station, where I was able to get radio reception and advised Firecom of the incident. Upon returning to our station I was greeted by the captain of the local FRNSW station who was most unimpressed about how we had dealt with the incident, and accused us of “stealing” his jobs. He told us that our actions were in direct violation of the MOU between the services and that as a volunteer officer I had no authority to operate or use any of my powers under the rural fires act within FRNSW district without his express permission and that he would be taking the matter further.

As a result of this event I have the following questions I was hoping you could clarify.

1) Were our actions contrary to the MOU between the services? I would think common sense would say that if are in a fire truck and come across a fire you should stop to put it out. I certainly would not be annoyed if FRNSW took the same actions my crew took if they came across a fire within RFD.

2) Under the circumstances outlined above am I able to use my powers under the rural fires act within FRNSW fire district or do I need express permission from FRNSW?

3) If I am not allowed to use my powers under the Rural Fires Act without permission of FRNSW, have I now exposed myself to any legal risks or disciplinary action as a result of using my powers under that act to gain access to the property and use the water in the landowners dam?

Any clarification you can provide on the above or anything else you think relevant would be appreciated.

I can’t comment on the MOU as I don’t have access to it and I understand that there are MOU’s between the services at local rather than state level so there may be differences across the state.

I do note however that NSW RFS Service Standard 2.3.2 Assistance to Other Agencies (v 2, 10 October 2013) says, at [2.3]:

At an incident that would normally be under the control of another combat agency, members of the NSW RFS may, in the absence of that agency, take any reasonable urgently needed actions within their capability to safely protect people and things that people value until that agency arrives and takes control.

Political reality

The RFS and FRNSW are both state run fire agencies. They are established by the state to provide a service to the community. I can’t imagine the Minister or the community would tolerate anyone saying ‘I didn’t put the fire out, even though I was an officer with a fire service, commanding a trained crew with an equipped appliance, because it wasn’t ‘our’ job’.     Putting it that way I think demonstrates the fallacy of the idea that any service ‘owns’ the job.   Modern day emergency management is meant to reflect an ‘all hazards, all agencies’ approach that should avoid ‘turf wars’. Let us then consider the legislation.

The legislation

The Rural Fire Service (RFS) is established by the Rural Fires Act 1997 (NSW). One of the objects of the Act is to provide ‘for the protection of persons from injury or death, and property from damage, arising from fires’ (s 3(c)). To this end the RFS is to ‘provide rural fire services’ in proclaimed rural fire districts (ss 6 and 9(1)(a)) and to assist the other emergency services, including Fire and Rescue NSW (FRNSW) (s 9(1)(b)). Officers of brigades are given significant powers in order to perform their duties and to take effective measures to control fires; this includes a power to enter premises (s 23).

Section 21(2) says:

An officer of a rural fire brigade or group of rural fire brigades may exercise a function conferred or imposed on the officer:…

(a) at a fire, incident or other emergency in the rural fire district for which the brigade or group was formed, or

(b) at a place outside that rural fire district:

(i) with the approval of the Commissioner or of the fire control officer for the rural fire district in which the place is located, or

(ii) in accordance with a bush fire management plan or in circumstances prescribed by the regulations, or

(iii) within a fire district-with the approval of an officer of Fire and Rescue NSW.

It follows that, prima facie, an officer of the RFS does need express permission from FRNSW before they exercise their powers (s 21(2)(iii)).

RFSguy has added “Now (ii) refers to a plan made under s52 where a BFMC has to prepare a plan- the BFMC includes all local agencies.”  I can’t access the particular BFM plan, but the Bushfire Coordinating Committee Policy No 2/2006 Management of Bushfire Operations (http://www.rfs.nsw.gov.au/__data/assets/pdf_file/0010/9586/Policy-2-2006-Management-of-Bush-Fire-Operations.pdf) provides guidance for Bushfire Management Committees.  It says:

Any fire fighting authority may make the first response to a bush fire. This responding fire fighting authority will take immediate steps to advise the land manager and relevant fire fighting authority in whose area the fire is burning, or will advise in accordance with any Memorandum of Understanding or Mutual Aid Agreement, of action being taken.

For each local area there should be a local emergency management plan prepared by the Local Emergency Management Committee (State Emergency and Rescue Management Act 1989 (NSW) ss 27-32).   A function of the Committee is to ‘ facilitate local level emergency management capability through inter-agency co-ordination, co-operation and information sharing arrangements’ (s 29(1A)(e)).

Common law

Anyone can extinguish a fire if they can. There is no need for specific legal authority (Stephens v Stephens (1970) 92 WN(NSW) 810).

The common law of necessity has allowed interference with private property to act in the public interest since the 1500s. If the fire was posing a risk to community assets, a town or infrastructure, the common law could be relied upon to justify entering the land to act in the public interest. In 2008 Chief Justice Gleeson, along with Justices Gummow, Kirby and Hayne said:

The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire-fighters, police and ambulance officers will often invoke application of that principle. (Kuru v State of New South Wales [2008] HCA 26, [40]).

Necessity is a defence to both crimes and torts.

Application

We can now return to the questions asked:

1) Were our actions contrary to the MOU between the services?

I can’t answer that as I can’t access the MOU but it appears that the actions were consistent with RFS Service Standard 2.3.2 Assistance to Other Agencies. The actions would also appear to be consistent with the intention of any local bushfire management plan and one would expect, the local emergency management plan.

I would think common sense would say that if are in a fire truck and come across a fire you should stop to put it out. I certainly would not be annoyed if FRNSW took the same actions my crew took if they came across a fire within RFD.

I agree and as noted above, no-one from the Community to the Minister would be impressed with a response of ‘we didn’t put the fire out because it was in a fire district, not a rural fire district’. Also, as noted above, you don’t need specific authority to extinguish a fire so taking action to extinguish the fire is not exercising powers under the Rural Fires Act or any other Act.

2) Under the circumstances outlined above am I able to use my powers under the rural fires act within FRNSW fire district or do I need express permission from FRNSW?

There is room for ambiguity here as the RFS is to provide fire services within a rural fire district but, as noted, ‘An officer of a rural fire brigade or group of rural fire brigades may enter any premises for the purpose of exercising any function conferred or imposed on the officer by or under this Act’ (s 23).   It is a function of the RFS to protect people and property from damage by fire (s 3(c)). Further, ‘An officer of a rural fire brigade or group of rural fire brigades may for the purpose of controlling or suppressing a fire: (a) take and use without any payment any water from any source on any land…’ (s 26(1)). None of these provisions refer to a fire burning within a rural fire district.

Section 21(2)(iii) however, does say that the approval of FRNSW is required but that approval does not need to come from the local captain but can be delivered by standing arrangements between the services reflected in a local MOU, Bushfire Management Plan or Local Emergency Management Plan.

3) If I am not allowed to use my powers under the Rural Fires Act without permission of FRNSW, have I now exposed myself to any legal risks or disciplinary action as a result of using my powers under that act to gain access to the property and use the water in the landowners dam?

Arguably, you didn’t use your powers.

‘We were initially greeted with significant hostility from the landowner, who only relented and allowed us access to the property and the use of his dam for water supply once I presented my authority card and advised him i had the authority to enter his property and use the water to put out the fire under the Rural Fires Act’

The landowner ‘allowed’ access and if one is allowed in there is no problem. But we can infer that the landowner believed he or she had no choice. If it is accepted that there was an exercise of the powers granted by the Act then one could argue that without express approval under s 21(2)(iii) the action was not authorised. In the circumstances described however no court would be interested in the application on the basis that there was no harm done. If you had physically restrained the landowner and broken locks to enter the situation may have been different. The outcome would depend on the circumstances but the provisions of the Rural Fires Act and the common law of ‘necessity’ would appear to provide ample defence.

See also ‘Entering private land to fight a bushfire in NSW‘ (June 16, 2013).

RFSguy’s comments

I acknowledge that my original post was incomplete and I than RFSguy for his comment, which I set out here.

Michael, how about S21?

“(2) An officer of a rural fire brigade or group of rural fire brigades may exercise a function conferred or imposed on the officer:

(a) at a fire, incident or other emergency in the rural fire district for which the brigade or group was formed, or

(b) at a place outside that rural fire district:

(i) with the approval of the Commissioner or of the fire control officer for the rural fire district in which the place is located, or

(ii) in accordance with a bush fire management plan or in circumstances prescribed by the regulations, or

(iii) within a fire district-with the approval of an officer of Fire and Rescue NSW.”

Now (ii) refers to a plan made under s52 where a BFMC has to prepare a plan- the BFMC includes all local agencies.

The standard wording of the plan says “Any firefighting authority may make first response to any reported fire on any land.”

The key word may be “reported,” but I’d suggest that the intent is more about ensuring that anyone can put out any fire they need to.

I hope that volunteers understand that they can get this sort of answer from their local office, or failing that, from RFS HQ.

This question came from regular correspondent, Dodge, who asks for my ‘…input into this article that has appeared in the UK press – Ian Johnston, ‘Ambulance staff told to leave patients at A&E departments if they have not been admitted after 45 minutes’, The Independent (Online) 18 January 2015.

Dodge says:

To my way of thinking if something went wrong and the receiving hospital was not willing to accept care for whatever reason would this be considered abandonment and if anything happened to the patient who would be held responsible.

The question of ‘abandonment’ has come up in an earlier post (see Physical restraint of patients by paramedics (February 14, 2014)). I said there:

Abandonment is not a term that I am familiar with in Australian law but I have heard of it in US law (see Curt Varone, Fire Law Blog: Abandonment Issue Raised in Asiana Crash Case) but even there it does not sound like a well accepted principle.

‘Abandonment’ is still not a term that arises in Australian law so I will address this question based on the principles of negligence law and as if this article were referring to Australia rather than the UK.

Let me assume that in any case a patient is seen by the relevant triage nurse or other health professional. I assume that where the paramedics arrive at hospital with a patient in cardiac arrest or needing urgent resuscitation they are not left for 45 minutes. If they are that is a bigger issue for the health service and not one I’m addressing here.   I assume here that the person is seen and having determined their injuries are not life threatening they are then left on the ambulance bed in the company of the treating paramedics.   If that’s the case then one has to ask both ‘what is the reasonable response’ and ‘what is the professional role of paramedics?’

If paramedics are unskilled automatons, whose only job is to provide care in accordance with pre-set protocols but to exercise no judgement, then it may be appropriate to require them to wait until a real health professional can take over. But surely that is not the case.

If paramedics are members of the professional health team then they can and should be able to make informed clinical decisions (for a related discussion see‘Transport everyone or act as a professional? A question for paramedics’ (6 May 2013) and ‘Do paramedics have to transport everyone?‘ (February 3, 2014)).  So the first decision they need to make is are they, by their presence, advancing the patient’s interests in a clinically significant way.   If, for example, the patient is being given IV medication, is being monitored and will get worse if they are left alone, then it would seem reasonable for the paramedics to stay and continue to provide that care. If, on the other hand, the person fell during sport and has been transported as there is a question mark over whether they have sprained or fractured their ankle, then one might make a clinical decision that they could wait on the waiting room chairs as well as on the stretcher and they don’t need a paramedic to talk to them and bring them a cup of tea, when other patients who have made their own way to hospital do not get such a service. In that case it may be reasonable to put the patient on the chair, let the triage nurse know and go.

The question is always about duty and what does one’s duty require. A paramedic owes a duty of care to the person in their care, the ambulance service may owe a duty of care to a person that then rings triple zero but individual paramedics do not. How the reasonable ambulance service responds to that call requires consideration of the resources available, no emergency service can be resourced to meet every contingency so there will be occasions where demand exceeds supply. What this means is that there is a certain amount of ‘first come first served’.   Where a person is being treated by a paramedic that paramedic has a duty to act in their interest. They cannot just leave them because other people are ringing for an ambulance. There is no way of knowing whether the next patient is in a worse, or better, condition than the patient already being treated.

Because of that I would suggest that a blanket rule – leave your patient after 45 minutes, could not be reasonable. But a rule that says ‘you can leave your patient at the hospital if there is no value in staying in order to reasonably free up resources for others’ would be fine.

Naturally any ambulance service that wanted to implement such a rule would need, as always, to think about in what circumstances is it ok to leave the person and that, in turn requires a risk assessment (see Wyong Shire v Shirt (1980) 146 CLR 40 (Mason J)). Questions like what might happen if they are left? How likely is any adverse event? (And remember we’re talking about a person being left in a hospital and presumably the hospital has some system in place to reassess a triage assessment of people waiting in the waiting room). What are the conflicting obligations? (This raises the obligations to others who need an ambulance).

To answer the question ‘if anything happened to the patient who would be held responsible?’ requires consideration of what it is that happens and who could do something about it.   If the person is left in reasonable condition but then deteriorates then the issue would also be, as it would be with anyone who is waiting but gets worse, what system did the hospital have in place to monitor people before they get seen and to reassess their triage? If the issue is that the person needs paramedic care and the delay is because there is a high demand on the hospital’s resources, then the issue will be that the person approached the health system that started their care, and one part of the health system (the ambulance service) can’t abandon them because another part (the hospital) is busy, or worse, to make the political point that A&E departments are overwhelmed or inefficient.

Conclusion

The tort of abandonment is not part of Australian law. The issue will be judged by the law of negligence. A rule that says ‘leave your patient after 45 minutes’ could not meet the test of ‘reasonableness’ required by law as it in no way invites consideration of the particular circumstances. A rule that says patient’s may be left in particular circumstances and identifies issues of risk and clinical practice, could well be ‘reasonable’.

Who would be responsible if something went wrong would, as it always must, depend on the facts and what it is that went wrong. An adverse event however does not prove negligence even if the risk of that event was foreseen.

This question comes from a volunteer with the RFS who tells me:

Over the last 2 days there has been a very heated debate on social media about the wearing of seatbelts in RFS vehicles.  The last few comments are starting to debate the applicability of NSW Road Rules Reg 267 (5).  The full thread can be found here [link to RFS Facebook page].

The exemption seems to be quite explicit but the RFS SOP is more restrictive and that in doing so, is compliant with the relevant Acts underpinning it.  Common sense aside (i.e. if available, why wouldn’t you wear a seat belt?), if tested, what would you consider to be the likely outcome of weighing the different rules, laws, guidelines etc against each other.  I would imagine that WHS would also need to be taken into consideration.

The link that I was given was to private group on Facebook and as I’m not a member of that group I was not able to read the discussion or any part of it; so I will do my best to infer the issues.

The starting point is the Road Rules 2014 (NSW) (and yes I note they are now the Road Rules 2014, not the Road Rules 2008 to which I have previously referred. The new version came into force on 1 December 2014). Rule 267 is headed ‘Exemptions from wearing seatbelts’. Subrule 5 says:

(5) A person is exempt from wearing a seatbelt if:

(a) the person is a passenger in or on a police or emergency vehicle, and

(b) either:

(i) if the vehicle has 2 or more rows of seats-the person is not in the front row of seats or there is not a seating position available for the person in another row of seats, or

(ii) if the vehicle is a police vehicle and has a caged, or other secured, area designed for the carriage of passengers-the person occupies a seating position in that area.

We can note, firstly, that s 5(b)(ii) is not relevant, as we’re not talking about a police car.

To gain the exemption first the person must be a passenger in an ‘emergency vehicle’. An emergency vehicle is a vehicle driven by an emergency worker. An emergency worker includes:

a member of a fire or rescue service operated by a NSW Government agency, a member of the State Emergency Service or a member of a fire brigade (however referred to) or rescue service of the Commonwealth or another State or territory, providing transport in the course of an emergency … (Road Rules 2014 (NSW), Dictionary, definition of ‘emergency worker’)

The NSW Rural Fire Service is a fire service operated by NSW Government agency but the transport has to be ‘in the course of an emergency’. I have previously noted that the definition of ‘emergency’ for the purposes of this rule cannot be the same as the definition used in the State Emergency and Rescue Management Act (see NSW SES Emergency and Senior Emergency Officers, and the police – Part 2 (July 15, 2014)).   Without clarifying what ‘emergency’ means, we can infer that responding to a fire call is an emergency, going to the shops, a training exercise, or the local school fete is not.   If it’s not an emergency, the exemption does not apply.

If it is an emergency the exemption applies but if the vehicle has 2 or more rows of seats, the passenger

1. must not be in the front row of seats or
2. if they are in the front row, there is nowhere in any other row where they could seat (ie all the other seats are taken).

It should also be noted that the exemption applies to the passenger, it does not say it applies to the driver.

All of this makes sense given the variety of circumstances where this exemption can apply. Remember it applies to police and emergency vehicles, so it’s relevant to a police vehicle with a prisoner, an ambulance with a patient, a fire truck where fire crews are putting on BA, or the like. In all those circumstances there would appear to be no need to exempt the driver from the obligation to wear their seatbealt but the passengers may be different.

So let us assume that the passenger is exempt. He or she is only exempt for the purposes of the Road Rules, so they do not get a traffic infringement notice for the failure.   Naturally the Road Rules take precedence over a Rural Fire Service SOP but only if one can’t comply with both. In short the RFS can impose a restriction that is tougher than the Road Rules but they can’t give an exemption that isn’t in the Rules. So the RFS can, despite regulation 267(5) say that they require all passengers to wear a seat belt. What they cannot do is say that a passenger does not have to wear a seat belt in circumstances where reg 267(5) does not apply.

The first question therefore was

The exemption seems to be quite explicit but the RFS SOP is more restrictive … if tested, what would you consider to be the likely outcome of weighing the different rules, laws, guidelines etc against each other?

An SOP that is more restrictive than the regulation is no problem. The passenger who fails to wear their seatbelt but who complies with the regulation would still have a defence against a traffic ticket, but could be subject to internal discipline for failing to comply with the RFS SOP.

If there were an accident and the passenger were injured, he or she may seek compensation under the Motor Accidents Compensation Act 1999 (NSW). That Act says that there must be a finding of contributory negligence if the injured person was ‘at the time of the motor accident, not wearing a seat belt when required by law to do so’ (s 138(2(c)). If regulation 267(5) applies, then the passenger in an emergency vehicle is not required by law to wear a seat belt so this automatic finding of contributory negligence will not apply.

Finally then there is the issue of Work Health and Safety. It is well know that a Person Conducting a Business or Undertaking (the PCBU) but take reasonable steps to ensure the health and safety of workers and those affected by their work. What is reasonable requires a consideration of:

(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. (Work Health and Safety Act 2011 (NSW) s 18).

We understand that wearing a seat belt is designed to reduce the risk of injury in the event of a collision but there may be good reasons to exempt a passenger. A paramedic doing CPR in the back of an ambulance cannot reasonably wear a seat belt.   Prisoners in police wagons are not issued with a seat belt. Fire fighters in modern urban appliances may have seats that allow them to sit in them with their BA but that may not be true for RFS village firefighters. All sorts of circumstances can be imagined.

The presence of regulation 267(5) says that the passenger does not commit an offence under that regulation, not that they don’t have to wear a seat belt for other reasons. As noted the RFS can have an SOP that is more restrictive than the regulation and they may well take that action because, considering all of the factors above, that the benefit of not wearing the belt exceeds the risk.   The exemption for fire fighters does not exempt the RFS from the need to do a risk assessment under the WHS Act.

For the purposes of the WHS legislation a volunteer is a ‘worker’ and must comply with the duties that are imposed upon a worker. These include a duty to ‘ comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act’ (Work Health and Safety Act 2011 (NSW) s 28). Failure to comply may lead to criminal prosecution.

If the RFS have directed that seat belts are to be worn despite regulation 267(5) a fire fighter who fails to wear his or her seat belt may well have a defence to a traffic infringement notice, but that regulation would not provide a defence to an action under the WHS Act.

Conclusion

To come back to the question asked ‘if tested, what would you consider to be the likely outcome of weighing the different rules, laws, guidelines etc against each other?’  The effect of reg 267(5) is to exempt a passenger in some circumstances from the need to comply with the other rules that require a person to wear a seat belt. It does not exempt the RFS to do a risk assessment on the practice and to take steps to ensure the safety of workers including volunteers. If their response is to require fire fighters to wear a seat belt even though reg 267(5) says they don’t have to, the fire fighters have to comply both to meet their obligation to comply with the service’s directives (Rural Fires Regulation 2013 (NSW) Reg 13) and to meet their obligation to ‘ comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act’ (Work Health and Safety Act 2011 (NSW) s 28).

I have been away for a week, so I’m now catching up on questions and stories. The first relates to a story that appeared in the West Australian (Daniel Emerson, ‘State can’t afford to adopt bushfire rules’ West Australian (Online), 16 January 2015).

The gist of the story is that the West Australian government is intending to impose fire mitigation obligations upon private land owners, but they will not impose similar obligations upon state agencies. The article starts with:

Emergency Services Minister Joe Francis says the State cannot afford to “bind the Crown” to the same bushfire mitigation rules faced by private landowners.

Some legal history

Historically legislation was made by the monarch on the advice of the Parliament. Legislation used to begin:

‘BE it enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and the Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same…’ (see for example, City of Perth Parking Facilities Act 1958 (WA)).

To make a law, the Bill has to pass through both houses of Parliament (except in Queensland where there is only one house) and then receive Royal Assent. In England, Royal Assent is given by the Queen, in Australia her assent is given by her representative; the Governor at state level and the Governor-General for the national parliament.   By convention, the Queen, the Governors and the Governor-General act on, and only on, the advice of their ministers. This means that they will never refuse to assent to an Act that has been passed by the relevant parliament.   To reflect that modern legislation no longer has the archaic introduction but the situation still remains that as a matter of legal history, the parliament recommends to the monarch that he or she should make a law and they then do so.

Again as a matter of history, it was said ‘the Crown can do no wrong’ so one could not sue or prosecute the monarch and the monarch was not bound by the laws that he or she made unless they specifically said that they were. Today the Crown is much more than the monarch, it is the whole of government made up of the ministers and the government departments. They all represent, and are captured by the phrase, ‘the Crown’.

It is now possible to sue the Crown as if it were a natural person (see Crown Suits Act 1947 (WA)) but it’s still the case that an Act of Parliament does not bind the Crown unless it specifically says that it does, so see, for example, the Animal Welfare Act 2002 (WA) s 4 which says ‘This Act binds the Crown in right of the State and, so far as the legislative power of Parliament permits, in all its other capacities’.

This story

This story is that with proposed amendments to emergency management legislation in particular with respect to a landholders’ obligations to mitigate risk, the parliament will not ‘bind’ the Crown.   In that case although a private landholder may have an obligation to mitigate a risk, an entity that is part of the Crown, that entity will not have the same obligation.

As the story says, the Crown is in a different position to a private landholder. The Crown owns ‘2.5 million’ square kilometres of land. Some will neighbour infrastructure and valuable private land, but other areas are remote. The Crown also has to manage land for a variety of reasons including maintaining bio-diversity and heritage values, which may conflict with hazard mitigation practices.

The fact that the Crown is different to private interests is reflected in other areas of law. When considering the application of tort law to the Crown in Stuart v Kirkland-Veenstra [2009] HCA 15, Crennan and Kiefell JJ said, at [129]:

In principle a public authority exercising statutory powers should not be regarded by the common law any differently from a citizen. It should not be considered to have an obligation to act. But the position of a public authority is not the same as that of a citizen and the rule of equality is not regarded as wholly applicable. It has public functions and it has statutory powers which the citizen does not.

Also in the field of tort law, when considering how the Crown should respond to a risk, the Civil Liability Act 2002 (WA) s 5W says:

The following principles apply in determining whether a public body or officer has a duty of care or has breached a duty of care in proceedings in relation to a claim to which this Part applies —

(a) the functions required to be exercised by the public body or officer are limited by the financial and other resources that are reasonably available to the public body or officer for the purpose of exercising those functions;

(b) the general allocation of those resources by the public body or officer is not open to challenge;

(c) the functions required to be exercised by the public body or officer are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate);

(d) the public body or officer may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.

As the Minister says, ‘”If you wanted to force every government agency to address their entire risk, it would cost billions, if not trillions, of dollars”’ and is inconsistent with the above provisions as it does not take into account all the competing obligations that governments have that others may not.

Conclusion

I haven’t seen the draft legislation and I’m not trying to argue that the Crown should not be bound but in this post I’ve tried to put the discussion into an historical context and to argue that it is certainly not unusual for the Crown not to be bound by legislation, and to have different obligations to private citizens. What is the appropriate policy response here, however, is another matter.

This question comes from a volunteer with Surf Life Saving NSW who asks:

I am not in Emergency Services however I am a volunteer for Surf Life Saving NSW. I am interested in your views with respect to WHS PPE for our role.

It is accepted in the official documents that eye / vision damage is likely from ‘doing patrols’ without protective eye wear.

Under WHS PPE regs should vision protection therefore be supplied consistent with the act? That is how it looks to my untrained eye.

I am happy to accept that Surf Life Savers’ are providing an emergency service even if they are not part of a state operated agency, so in my view my correspondent is in an emergency service!

The Work Health and Safety Act 2011 (NSW) imposes various obligations on a Person Conducting a Business or Undertaking (a PCBU).   For the purposes of the Act an employee of a PCBU includes a volunteer so any organisation that has any paid employees must take reasonable care to protect the health and safety of everyone, employees and volunteers (see ss 7 “meaning of ‘worker’” and 19 “Primary Duty of Care”).

A volunteer association is not a PCBU (s 5(7)).  A volunteer association is “a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.”   This is the first hurdle, is a surf club a PCBU?  If no-one is employed by the local club that club may be a volunteer association in which case the local club is not required to meet the demands of the Act.   Surf Life Saving NSW on the other hand will be a PCBU.  The corporate structure set out at http://www.surflifesaving.com.au/about/organisational-structure-and-corporate-governance.pdf.   The 2013-2014 Annual report says (at p 18):

Surf Life Saving NSW’s workforce comprises 67 skilled and professional employees who support the work of our volunteers throughout NSW

But does a volunteer surf life saver volunteer for SLSNSW or their local club. In other words what is the relationship between the clubs and SLSNSW?  At http://www.surflifesaving.com.au/about/what-we-do they say:,

Surf Life Saving supports our 75,000 volunteer members in a variety of ways. We assist clubs and members in recruitment and retention, membership reporting and statistics and a range of member protection initiatives.

They do not say that the clubs are members, rather each volunteer life saver is a member.  I don’t think there could be any serious claim that life savers are not volunteers for SLSNSW, affiliated to a particular club, but very much part of the state body.

It follows that SLSNSW is a PCBU and must, according to s 19:

ensure, so far as is reasonably practicable, the health and safety of:

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person,

Remember that a ‘worker’ includes a volunteer.

The Work Health and Safety Regulation 2011 (NSW) reg 36 gives legal effect to the traditional hierarchy of controls.  that regulation says, emphasis added:

(1) …

(2) …

(3) The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following:

(a) substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk,

(b) isolating the hazard from any person exposed to it,

(c) implementing engineering controls.

(4) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls.

(5) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment.

The risk that we are considering here is damage to a volunteer’s eyes or vision whilst doing patrols, presumably from exposure to the sun.    Surf Life Saving can’t substitute the risk ie replace the sun, nor can they fully isolate a person.  They can provide some sun shelters but even they won’t work as life savers still have to look across the water which will be reflecting the sun.    Equally engineering controls, such as building shelters won’t remove the risk nor will administrative controls.  In short it is a fundamental part of a surf life saver’s work that they are on the beach when it’s sunny and even if they do not have to spend their entire patrol standing in the sun, they do have to be exposed to it both directly and by reflection.   It follows that the remaining control is ‘suitable personal protective equipment’ ie sunglasses.

I have been provided with the Surf Life Saving Australia Australia policy on ‘Sun Safety’ which says, inter alia, ‘It is the responsibility of all SLSA members to use all protective equipment provided (hats, uniforms, sunscreen, shade structures, sunglasses etc) …’  The policy refers to “Sunglasses – 100% UV resistant conforming to Australian Standard 1067 (as labelled on the swing tag) ‐ having side protection from the sun’s rays, but which do NOT obscure peripheral vision” as part of ‘Sun Sense Protection’.   The policy also says:

SLSA and affiliates will strongly encourage the use of:‐

i. sufficient shelter for patrols using either natural, or artificial shelters

ii. patrol hats, shirts and shorts to conform with the standards above

iii. broad‐spectrum water‐resistant SPF 30+sunscreen and sunglasses for all activities.

(I do not think, in the circumstances, it would be sufficient to ‘strongly encourage the use of’ the various protective items such as shade shelters, uniform and sunscreen.  The use of that equipment should be required). Finally the policy says:

In accordance with SLSA’s Patrol Uniform Policy, it is mandatory that patrol members wear the patrol uniforms provided at all times, except in a rescue situation or where conditions do not permit.

Without going into details on the uniform we are all familiar with the surf lifesaving uniform of the long sleeved shirts and broad brimmed hats.  I infer from this that they are supplied and not purchased by members.   So if that’s correct the inference is that Surf Life Saving NSW provides the uniform, but not sunglasses to its members even though the risk has been identified.

With respect to providing sunglasses, the issue would be whether that was ‘reasonably practicable’ which, pursuant to s 18, requires consideration of:

(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.

The SLSA policy identifies the risk from the sun including that ‘UVR has been shown to cause eye damage, which includes cataracts and pterygium. This damage may start in childhood’.  It would seem that the likelihood of the risk (eye damage) occurring is high, the degree of harm is significant, the PCBU clearly knows of the risk, there are few ways of eliminating the risk given the task at hand, there are ways to eliminate the risk (discussed above) so then the question would be ‘is the cost of issuing sunglasses grossly disproportionate to the risk?’    I don’t know how much it would cost to include sunglasses in the uniform issue but it’s hard to imagine it would be so much as to be ‘grossly disproportionate to the risk’.   If that is correct then yes, SLSA, SLSNSW and local clubs, if they too are a PCBU, would be in breach of their primary duty for not including sunglasses in the member’s uniform issue.

Without being a life saver I would imagine there is another reason to issue sunglasses.  Life Savers are required to observe people swimming in the ocean. Their capacity to do so will be affected by reflected sunlight, in short, I imagine it’s harder to see people without sunglasses to reduce the glare off the ocean.  It follows then that in order to perform the task at hand, life savers would need sunglasses in order to be able to see.  If that is correct failure to issue them may be evidence of negligence if a person drowns but could not be observed because life savers had not been issued with a relatively cheap and obvious piece of kit to allow them to do their job.  Even if it’s not negligence, a coroner may not be impressed if a volunteer says ‘I couldn’t see them because of the glare and SLSA or SLSNSW hadn’t given us any sunglasses’.

One might say that volunteers should provide their own; they are the one’s volunteering to work in the sun, they should have them for their normal activities and we all like different types.  Some of us, like me, wear prescription sunglasses so issued ones would have to be of the nature that fit over normal prescription glasses.   All of that may be relevant to the question of what is ‘reasonably practical’ but I don’t think wold be sufficient to relieve SLSNSW of the duty to at least have a supply in case members forget their glasses or for whatever reason don’t have them.

Thank you to regular correspondent Dodge for bringing this story to my attention. The story is being reported in the NT News and relates to an accident involving an Aviation Rescue and Fire Fighting (ARFF) appliance that was involved in a fatal road accident when proceeding to assist the Northern Territory Fire and Rescue Service (see Sarah Crawford, Airservices Australia to face legal action after 2011 fatal fire truck accident in Darwin’ NT News (Online), 14 January 2015).

As the paper reports this prosecution comes 18 months after a coroner’s inquiry into the accident and you can read the coroner’s findings online.   The coroner , Mr Greg Cavanagh, said (at [9]):

… this fatal collision that claimed three lives was allowed to occur because of major shortcomings in the policies, operating procedures and training protocols of Airservices Australia. It appears to me that since their main business is to operate at the airport, staff were ill equipped to drive the ultra large fire vehicle in emergency conditions, at speed, with lights and sirens, on a public road. This was completely unacceptable in circumstances where they were required to do so, albeit rarely, as a result of a Memorandum of Understanding with the NT Fire Services. Tragically it took three deaths to expose the failings in their systems.

In short there was an MOU between Airservices Australia and the NT Fire Service to provide mutual assistance to each other, but this was the first time that ARFF had been asked to respond to support the civilian fire service. The fire in question was a large fire that had engaged all the NT Fire and Rescue resources so they called on ARFF to assist. It was expected that the airport fire appliances would be able to get close to the fire and use their high volume cannon to get a very large amount of water onto the fire.

Unfortunately that did not happen, as the coroner said (at [33]):

Clearly Airservices would have been able to offer much needed assistance had the crew of the Fire Tender been able to complete their journey. As it happened, the fatal collision they were involved in prevented them attending Wishart Road and in fact, diverted the resources of NTFRS to the scene of the accident.

The driver gave evidence that it was common knowledge that as he was driving an emergency vehicle he had ‘right of way’ including at a red light. He travelled through a red light and in evidence said (at [40]) ‘he was not even aware of whether or not he was proceeding through a red light since he had right of way regardless’. He could not recall any specific training to the effect that as the driver of an ARFF appliance he was exempt the operation of the relevant road rules.

All the crew of the appliance saw the oncoming vehicle but thought it would give way and they proceeded through the red light.   The collision occurred with the oncoming car travelling between 80 and 100km/h whilst the fire appliance was travelling around 48km/h. Three people in the Toyota were killed; there was one survivor.

The coroner found that the following factors contributed to the accident:

1. The unusual shape and colour of the ARFF fire tender meant that other driver’s may not have recognised that it was an emergency service vehicle;
2. Although they were activated, other drivers did not hear the siren and the warning lights were not easy to see (perhaps they are designed to be seen by pilots rather than car drivers?)
3. There was a significant blind spot caused by the appliances ‘A pillar’.

Importantly in the context of this story:

4. Driver training was inadequate for using these ultra-heavy appliances on a public road;
5. Airservices Australia had given no directions on instructions on how to approach an intersection and ‘red light’ when travelling on a public road; and
6. ‘the failure of Airservices to adequately train its staff meant that Mr Norris and his crew were all of the view that other drivers would recognise the Fire Tender as an emergency vehicle, and that affected their ability to judge the actions’ of the oncoming driver.

It’s that background that puts the NT News story into context. As we’re told, Airservices Australia is being prosecuted for breaches of the Occupational Health and Safety (Commonwealth ­Employment) Act 1991 (Cth) (now repealed).   Sections 16 and 17 of that Act (at least when it was made) required an employer to ‘take all reasonably practicable steps to protect the health and safety at work of the employer’s employees’ and to ensure that others ‘are not exposed to risk to their health or safety arising from the conduct of the employer’s undertaking’. The equivalent provisions are now in found in section 19 of the Work Health and Safety Act 2011 (Cth).

The essence of the prosecution will be that Airservices Australia did not take the necessary measures when it failed to train its staff on how to operate their very large, specialised vehicles in an environment that was outside their normal operating area, that is on a public street instead of an airport.

Legal issues

The appropriate defendant

The two significant legal issues to note are first that there is no suggestion that the driver is the subject of this prosecution. (He may however have been prosecuted for a traffic offence, but I have no information on that, and if that was dealt with by way of traffic infringement notice or by a plea of guilty there would be no easy to locate public record of that prosecution). The coroner said (at [71]):

This accident is not the fault of Jack Norris [the driver of the appliance] or his crew. I have no doubt that had Mr Norris been given the appropriate instruction by way of training protocols, the accident would not have occurred. Had he been trained, for example, to slow down to a speed of 20 kilometres, he and his crew would have had more time to assess the Triton as a hazard and more time to stop to avoid a collision. In failing to address those issues, Airservices has not only let down the community, and particularly the family and friends of those who have died, but also its own employees, who are clearly still deeply affected by this accident.

That finding does not bind either the police or Comcare, they could chose to prosecute the driver but it may move, nonetheless, to reassure the driver’s of emergency vehicles.

Since modern work health and safety legislation was expanded to treat volunteers as workers, volunteers have reported concern that they will be prosecuted.   Whilst this driver was not a volunteer, all emergency service personnel, whether volunteer or career should be reassured that prosecution under work health and safety legislation is not automatic and a tragic outcome does not expose everyone to liability.

Exemption from the Australian Road Rules

The other issue was the question of whether or not the ARFF appliance had any exemption under the Australian Road Rules. As I have noted elsewhere on this blog, the Road Rules have a consistent provision that says that the driver of an emergency vehicle if exempt the application of the road rules provided that they are taking reasonable care and it is reasonable that the rule should not apply (see Traffic Regulations (NT) Schedule 3, clause 306).   What varies from State to State and Territory is the definition of ‘emergency vehicle’.

One can understand why the ARFF firefighters may have thought they were exempt. They would be familiar with seeing NT fire appliances relying on the exemption and would no doubt, and reasonably, look at their own appliance and consider that it, too is a fire appliance or emergency vehicle. That is all understandable but is not how the law works; the law does not (but could) have a functional definition, such as ‘an emergency vehicle is a vehicle used for fighting fires or transporting the sick or injured’ but it doesn’t. Rather the law in the NT and other jurisdictions refers to who is using or controlling the vehicle. In the Northern Territory and emergency vehicle is defined in the Traffic Regulations (NT) cl 3, as:

(a) the property of the Territory and in the control of the Police Force of the Northern Territory; or

(b) the property of the Territory and in the control of the Northern Territory Fire and Rescue Service, within the meaning of the Fire and Emergency Act; or

(c) the property of the Territory and in the control of a member, under section 45 of the Emergency Management Act, of the Northern Territory Emergency Service and being used for the purposes of that Act; or

(ca) an ambulance; or

(d) the property of, or being used for the purposes of, the AFP and in the control of the AFP; or

(e) authorized as an emergency vehicle under subregulation (4).

(What is an ambulance, however, is not defined see ‘Road rules, flashing lights and remote WA‘ (November 26, 2014) and the comments to that post, and note that like WA, there is no ambulance service legislation in the NT).

Subregulation 4 allows the ‘Registrar [to]… authorise a person, or a member of a class of persons, to use a vehicle or a type of vehicle as an emergency vehicle’.

ARFF are not listed in the regulation so they did not enjoy the exemption. According to the coroner they did, after this accident, move to get the appropriate authorisation but, in the coroner’s view (at [75]), the failure to consider whether or not there was an exemption reflected:

… a general failure to ensure that policies and procedures relating to emergency driving were up to standard and a failure to focus on the issues relating to driving on public roads.

Why bother?

Why bother with this prosecution? The accident happened in 2011 and according to the Coroner (at [76]):

… Airservices Australia has responded to this tragedy in a thoughtful, thorough and determined way. The management of that organisation have been humble and willing to admit the mistakes that were made and the need for improvement. The gravity with which they view their task is reflected in the number of excellent and detailed reports commissioned on their behalf and then provided without hesitation to the inquest and interested parties. That suggests to me that the reforms I heard about in this inquest will be fully implemented…

Airservices has implemented better training and protocols for driving on a public street, and John Killeen, the operator of ‘Ambulance Visibility’ blog and a follower and contributor to this blog, was engaged to advice ARFF on improving the visibility of their appliances.

It would seem that prosecuting Airservices will not force them to change but will take money from their budget bottom line (unlike civil liability which can be covered by insurance).   Like all criminal punishment however, the fine is not meant to just deter Airservices Australia but to reinforce to other agencies, public and private, of the obligation to take reasonable steps to ensure safety at work.

No doubt Airservices Australia will bring evidence of the actions it has taken to show that it appreciates the errors that were made and that they are now complying with their legal and moral obligations and the court that has to impose a sentence for the failures will take that into account in due course.

An interesting question from an CFS volunteer:

At the recent fires in South Australia CFS volunteers with Facebook accounts would have made many posts and commentary, pictures and even video of what was going on around them.

CFS have a policy in place for managing social media, which seems sensible and seeks to ensure that inappropriate material of any kind is not associated with CFS. So far so good. However it states in 3.5 of the policy that all images video or sketches made at incidents becomes the property of the CFS.

CFS also has an SOP of Photographic /Video recording of Incidents. A copy of this is attached.

During recent fire fighting activity, Volunteers were paged several times with messages saying “Be advised any vision taken by CFS Volunteers is NOT to be posted onto Social Media or provided to any Media outlet as per SOP 12.1 and 12.2“
(SOP 12.1 refers to providing information, pictures or footage to media outlets such as newspapers and TV stations).

My questions are;
1 Does CFS have the legal right to claim that all images and video made at an incident by volunteers are the property of the CFS?
2 Even if images and video are in fact owned by CFS, does this entitle CFS to prohibit uploading to Facebook or Twitter?

Your views on these two questions would be appreciated by a considerable number of fellow volunteers!

I have previously answered a similar question from a volunteer with NSW RFS – see ‘Taking photos whilst on duty with the NSW RFS – amended’ (October 26, 2013) and but there are differences and further information that has come to hand, but still readers should also consider that post as part of this answer.

The first issue is to identify who owns the photo. The Country Fire Service’s Social Media Policy says (December 2012, at [3.5]) says “All images/footage taken by staff or volunteers attending a CFS incident or event in a CFS capacity becomes the property of CFS regardless of whose equipment is used.”

Commonwealth law prevails over an inconsistent state law (Australian Constitution s 109).  The Social Media Policy does not even enjoy the status of a state law so it can not prevail over the provisions of the Copyright Act 1968 (Cth).

The Copyright Act 1968 (Cth) says that a person who creates a work, like a photo, owns it (s 35(1)). The exception to this rule is that if you produce the work as part of your employment, so if you were employed by the CFS as a photographer, then the employer owns the copyright in the photo (s 35(6)).

The Act also says that copyright in material that is created first published under the ‘direction or control’ of a State or the Commonwealth government belongs to that government (ss 176-178).   The CFS is part of the government of South Australia so the State of South Australia will own the copyright of photos created or published under its ‘direction or control’.   This will raise the question of what does ‘direction or control’ mean?

In Copyright Agency Limited v State of New South Wales [2007] FCAFC 80, Emmett J said (at [125]) that the provisions referring to ‘direction or control’:

… must involve the concept of the Crown bringing about the making of the work. It does not extend to the Crown laying down how a work is to be made, if a citizen chooses to make a work, without having any obligation to do so.

Finkelstein J said (at [186]):

… where the Crown has power to require a work to come into existence, the work is made under the “direction” of the Crown. If the Crown has dominion over the execution of the work then it is made under its “control”. The assumption that underlies each concept (direction and control) is the existence of a relationship between the Crown and the author that authorises the Crown to give the direction or exercise the control as the case may be. That authority may be found in statute, including regulations made under a statute, contract or elsewhere. But, whatever its source may be, the authority must exist.

If a fire fighter is asked to take a photo of something for CFS use, for example it is observed that there is something that may help identify the cause of the fire or be useful for training and a senior officer, seeing that a firefighter has a camera says ‘take a photo of that, we’ll have a look at that in more detail later’, that would be taking the photo at the ‘direction’ of the CFS and therefore of the State.  Equally a person who is the volunteer media officer or photographer is taking the photo for the CFS.

Control is more problematic.  Members place themselves under the control of the CFS and are acting on their direction as they respond to a fire, but if they stop and take a photo along the way are they taking the photo under the ‘control’ of the CFS?  I would think not.  The CFS is not given instructions on how photographs are to be taken. The CFS gives instructions on how to fight fires, use PPE etc but not the art of photography, and it is not the case that the various SOPs or Social Media Policy say that photos are not to be taken.

The Service’s Standard Operating Procedure, SOP 12.2 – Photographic/Video Recording of Incidents, says:

SACFS Personnel may take photographs or video at an Incident for the following:

- SACFS Incident and Investigation Reports;

- SACFS Brigade, Group and Regional Training Purposes;

- SAPOL, including Major Crash Investigation Section;

- SAMFS Fire Cause Investigation Section;

- SACFS Corporate Communications Unit for training purposes;

- SACFS Promotions Unit for its website.

Taking a photo with the intention of using it for those purposes may be taking a photo under the ‘direction or control’ of the CFS, but photos may also be taken for other purposes.    People who volunteer to act as fire fighters may well want to take photos of the scene, and their colleagues, and the fire truck, to record their memories and that they were there.  To suggest that the CFS owns the photos on their phone seems a step too far.   If they did they could insist that you hand over the photos and the CFS could use them as they see fit (subject to the obligation to acknowledge you as the photographer (Copyright Act 1968 (Cth) Part IX, Moral Rights).   One can see the CFS’ concern – they don’t want those photos circulated on the web where it may cause any number of problems – but their legitimate desire to limit the use of the photos does not convert to ownership.

So, the short, first part of the answer is if you took the photo, and it was not done as part of your employment, as part of your volunteer role (eg as a volunteer photographer) or with the intention of using it for one of the purposes listed in SOP 12.2, you own the photo.

That is not the end of the matter.  The next thing to consider is does the CFS have a photo policy and my correspondent has identified that they do: SOP 12.2 – Photographic/Video Recording of Incidents and SOP 12.1 – Engaging the Media.  SOP 12.1 says ‘Photographic or videotape material will not be released directly to the media, any other website or electronic medium’.  SOP 12.2 says ‘Photographs or video material taken by SACFS Personnel at an Incident will not be used on any other website or any other electronic medium’.

The CFS may not own the photo but members of the CFS agree to be bound by its rules and to be part of the organisation.  If taking, or more importantly, using the photo is contrary to service policy, the member could expect to face disciplinary action which could, in extreme cases, include exclusion from the service (Fire and Emergency Services Act 2005 (SA) s 70 and Fire and Emergency Services Regulations 2005 (SA) reg 22).

Conclusion

The questions I was asked were:

1. Does CFS have the legal right to claim that all images and video made at an incident by volunteers are the property of the CFS? and
2. Even if images and video are in fact owned by CFS, does this entitle CFS to prohibit uploading to Facebook or Twitter?

My answers are:

1. If the photo is made by an employee of the CFS as part of their duties, or by a volunteer under the ‘direction or control’ of the CFS, then yes; but if the photo is taken by a member for their personal use, then ‘no’.
2. If the images are owned by the CFS then definitely ‘yes’ but in my view the answer is ‘yes’ even if they are not owned by the CFS. More importantly the CFS may not be able to stop the member posting the photo but they could take disciplinary action against the member.

For further information see: http://www.copyright.org.au/find-an-answer/browse-by-what-you-do/photographers/

A colleague has asked me this question:

I’ve just arrived at the in-laws’ place in Victoria (just up the road from the recent fires) and the father-in-law has hit me with a legal question. His next door neighbour has refused to cut the grass on his property, meaning there is waist high grass across 3 acres directly adjoining the in-laws’ place. The in-laws’ house is about 7 metres from the fence. As you can imagine, they are a little concerned about the fire risk, as is the Council (the Council has served him with three notices telling him to cut the grass or else but he’s still refused and the Council’s ‘or else’ turns out to be ‘oh dear’).

Question for my learned friend – if a fire started and swept across the land, burning down the in-laws‘ place or one of the other adjoining houses, would the landholder be liable, even if he was not responsible for the fire starting?

The answer to that is ‘probably not’ and the better defendant would be the council.  To justify that answer will require some detail and history.

If we go back to the rule in Rylands v Fletcher (1868) LR 3 HL 330 it said that a landowner is liable for anything dangerous that they ‘collect and keep’ on their property and that escapes and damages their neighbours’ property.   Rylands v Fletcher was about water (a dam leaked) but it could have applied to fire, but one had to ‘bring and keep’ the fire.  A fire that starts naturally is not the landowners’ fire that is not a fire that they brought onto the land, so the rule did not apply.

More importantly in Sparke v Osborne (1908) 7 CLR 51 it was held that the rule did not apply to prickly pear so that the defendant was not liable for the spread of the weed from his property to another.  According to Griffith CJ (at p 57) the trial judge (that is the judge that heard the case at first instance, and whose decision was the subject of the appeal):

… was of opinion that, in any case in which a man allows plants growing on his land to overhang his neighbour’s land, that is a nuisance, and that the neighbour may either abate the nuisance or bring an action, if damage is caused to him, and he thought that it made no difference whether the vegetation in question was a natural growth or had been planted, whether it was valuable property or a noxious weed. The· mere allowing it to overhang was in his opinion wrongful, and actionable if followed by damage.

If that opinion was correct one can see the analogy, that is the neighbour has allowed the grass to grow and although that grass may not ‘overhang’ it will create a nuisance and poses a risk to the property of my colleague’s in-laws, and would be ‘actionable if followed by damage’ such as allowing fire to spread.

Griffith CJ found that the trial judge was wrong.  The Chief Justice said (at p 59)

It seems to me that the only principle applicable to such cases is … that if a man by the active use of his land injures his neighbour’s land and so deprives him of the natural advantages that he would have derived from his land but for the conduct of the defendant, the defendant is liable, but that he is not liable for mere non-feasance.

Non-feasance is simply not doing anything.  Allowing the grass to grow is non-feasance, it is an omission to clear the land rather than ‘active use’ of the land.

Barton J said that the defendant:

… had not interfered with the growth. It was nature and not his act which was responsible for what happened. That, it seems to me, is a very difficult case for the plaintiff to get over.

Higgins J said:

I know of no duty imposed by the British common law-apart from such statutory duty as Parliament may impose on a landowner to do anything with his land, or with what naturally grows on his land, in the interests of either his neighbour or himself. If he use the land, he must so use it as not thereby to injure his neighbours… But if he leave it unused, and if thereby his neighbours suffer, he is not responsible. So long as he does nothing with it, he is safe. It is not he who injures the neighbour. It is Nature; and he is not responsible for Nature’s doings.

O’Conner and Isaacs JJ all agree that there was no duty to prevent, or liability for, the spread of the weed to the neighbouring property.

In the facts I have been given, the neighbour has declined to mow the grass and it has been allowed to grow naturally.  There would appear to be no common law duty to mitigate the risk to the neighbour.  Here readers may refer to the issue that arises in tort law about ‘reasonable foreseeability’ that is people are told that there is a duty to avoid harm that is ‘reasonably foreseeable’ but the courts have long moved away from such a simple test as that would impose duties on all people to do all manner of things as any damage that can be imagined is foreseeable provided it is not ‘far fetched or fanciful’ (Wyong Shire Council v Shirt (1980) 146 CLR 40, [13]).  As has been noted in this blog, cases against the fire services, doctors, police, neighbours etc all require more than mere foreseeability.   What more has been described by various terms such as ‘proximity’ or whether it is ‘fair, just and reasonable to impose a duty.  Over time all those concepts have lost favour and today the courts look at all the ‘salient features’ of the relationship between the parties.  Without going through those features (they are discussed in the post ‘Distributing warnings via Facebook and potential legal liability’ (November 16, 2014) and other posts in this blog) it is unlikely that any duty would be found today.

One might object that Sparke v Osborne was decided in 1908 and times and expectations have changed, but in Stannard v Gore [2014] 1 QB 1 the English Court of Appeal again affirmed no such duty. In that case it was alleged that fire spread from one shop to another due to the untidy condition of the shop where the fire started.

Rylands v Fletcher is no longer part of the law in Australia (Burnie Port Authority v General Jones (1994) 179 CLR 520) but in my view that doesn’t change the relevance of the cases discussed, above, when it comes to the question of whether there is a duty to take action to ameliorate the risk caused by growing grass.

With the demise of Rylands v Fletcher, there remains a duty to take care to protect a neighbour from fire or other dangerous hazard that a landowner brings onto the land (Burnie Port Authority v General Jones (1994) 179 CLR 520) but in this scenario we’re talking about a situation where the landowner is ‘not responsible for the fire starting’.  In the opinion of Windeyer J, there is a person has ‘… a duty to exercise reasonable care when there is a fire upon his land (although not started or continued by him or for him), of which he knows or ought to know, if by the exercise of reasonable care it can be rendered harmless or its danger to his neighbours diminished’ (Hargrave v Goldman (1963) 110 CLR 40).  That duty only applies when a fire has started and is not referring to some duty to mitigate the hazard before the event: ‘… the oft quoted phrase ‘if you own the fuel, you own the fire’ … is not reflected in the law’. (For a detailed discussion, see ‘Landholders duty of care for fire and other hazards’ (March 22, 2014)).

It is my view that there is no common law duty that would see the neighbour liable in the event that fire spread; but what about statute?  This story is in Victoria so we look at the Country Fire Authority Act 1958 (Vic).  That does not impose any general obligation on property owners to reduce grass or hazards (compare that to the Rural Fires Act 1997 (NSW) s 63, which imposes a duty on a landowner to take ‘any other practicable steps to prevent the occurrence of bush fires on, and to minimise the danger of the spread of a bush fire’).

In Victoria a landowner must comply with a fire prevention notice that has been served by, amongst others, ‘the fire prevention officer of a municipal council’ (ss 41 and 41D).    We are told that ‘the Council has served him with three notices telling him to cut the grass’ and without knowing the details, and without studying the Local Government Act 1989 (Vic), the Environment Protection Act 1970 (Vic) or any other Act to find other notices that these could be, I will infer that the notices were fire prevention notices under the CFA Act.   Failure to comply with a fire prevention notice is a criminal offence punishable by a fine of 120 penalty units or imprisonment for 12 months, or both (s 41D).   A penalty unit is $147.61 (see http://www.legalaid.vic.gov.au/find-legal-answers/fines-and-infringements/penalty-units) so the maximum fine is $17 713.20.

Just because a person has been served with a notice and has not complied with it, it does not follow that they will be liable for any damage that would have been avoided had they complied with the notice.  This would be an action for a breach of a statutory, rather than common law, duty.  To succeed the plaintiff would have to show that it was the parliament’s intention that the statute was to give a private right of action.  Imposing a criminal penalty suggests that was not intended, the Parliament has provided how this rule is to be enforced, by criminal sanction, not civil liability.

It is my view therefore that not only would the landowner be under no common law duty, there is not statutory duty (at least not under the CFA Act) that would allow an action for damages should a fire spread from one property to the next due to the uncut grass.

The Council, however, is in a different position.  In Pyrenees Shire Council v Day (1998) 192 CLR 33 the defendant council was aware of a defect in a chimney.  They served a notice on the owner requiring that the defect be rectified but took no further action.  The property was destroyed when new owners, unaware of the defect, used the chimney and caused a fire in the roof.

The council was liable as it had begun to take action, in this case under the Local Government Act 1958 (Vic), to deal with the issue.  It had served a notice so was well aware of the problem.  The Council had statutory powers to resolve the issue, given noncompliance the council could have arranged rectification work and billed the owner.  No-one else had the power to deal with the issue.  The new owner was vulnerable in that no amount of inspection would have revealed the defect and the council did not advise that the property was the subject of a notice when they made the normal enquiries that a prudent purchaser makes before buying a property.  In effect after serving the notice the council did nothing more.

To come to the current facts, where a fire prevention notice has been served and not complied with the council may request the CFA to conduct the necessary ‘fire prevention work’ (s 42(1)).  The work is to be paid for by the owner (s 42(2)).

If there was an action against the council alleging negligence, a court has to consider all of competing demands on the council’s resource and all of the other things that the council has to do, when deciding whether or not the council’s actions were reasonable in the circumstances (Wrongs Act 1958 (Vic) s 83).  Council may argue that there were other properties that were posing a greater risk so they were getting attention first, or there were other risks from other hazards in the council area.  That’s all fine but the only thing the council has to do here is ask the CFA to do the work, the council doesn’t have to do it, and bill the landowner so the council doesn’t have to pay for it.   Either way it’s not a major drain on council’s time or assets.  The power to issue notices and to enforce them is not some general power that can be applied to fire and other risks, it is a power specifically allowing councils to address this very risk, just as it was in Pyrenees Shire Council v Day.

Time is also not on council’s side.  If one served a notice and two days later a fire occurred, there would have been no opportunity to comply or to enforce compliance.  Here the council has served three notices – so they’ve had time to consider the problem, identify non-compliance but have still failed to escalate the issue.  They could have served an infringement notice (in effect an on the spot fine; s 41E) to try to drive home the need for compliance but I would infer they have not done that either.

Conclusion

The question was:

… if a fire started and swept across the land, burning down the in-laws‘ place or one of the other adjoining houses, would the landholder be liable, even if he was not responsible for the fire starting?

A legal action always depends on the particular facts so one can never say ‘never’ but such a case would be difficult and I would suggest against the weight of authority.

On the other hand, given the council has served three notices, has the statutory power and authority to take action, and the council’s ‘or else’ has turned out to be no more than ‘oh dear’ I would suggest an action against the council, should a fire sweep ‘across the land, burning down the in-laws‘ place or one of the other adjoining houses’ would have much better prospects.

I have previously reported that the ACT Court of Appeal upheld the decision of the Supreme Court to dismiss all claims against NSW over its response to the fires that started on 8 January 2003 and burned into Canberra on 18 January 2003 (‘ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires, (November 3, 2014)).

An appeal to the Court of Appeal is the final step unless someone seeks to take the matter to the High Court of Australia.   An appeal to the High Court is not a ‘right’, rather a party needs to persuade the court that there is a legal issue that demands the Court’s attention – that is the Court needs to grant ‘leave’ to allow a party to appeal. The ABC has reported that one of the litigants in this matter, Wayne West, has decided not to pursue an application for leave to appeal to the High Court – ‘Canberra 2003 bushfires victim gives up fight for damages from NSW Government’ ABC Online, 29 November 2014. (I apologise for the delay in reporting this, but I’m catching up on news from the summer break – see also ‘Further legal ruling affecting ‘Doctors as ‘good Samaritans’ – do I have to stop?’ (January 3, 2015)). There’s never been any suggestion that the other litigant, QBE Insurance, would seek to take the matter to the High Court so I think it’s safe to say that the litigation over these fires has now, finally, been resolved.

If that is the case then the final outcome was that the ACT paid some money to settle the matter even though they settled on the basis that there was a ‘verdict for the defendant’ (‘Canberra bushfire litigation settles against the ACT’ (September 20, 2012)).  The State of NSW was found to have been negligent by the Supreme Court, but was not liable because of provisions that protect the fire services from liability for acts performed in good faith.   The finding of negligence was set aside by the Court of Appeal with the result that NSW was exonerated from any legal blame for the fires or their consequences.

SkyNews is reporting that seven South Australian firefighters have been injured in the course of their duties dealing with the current fire emergency (‘Firefighters injured fighting SA bushfire’ SkyNews Online, 3 January 2015),  Our thoughts are with those firefighters but it is reassuring to know that South Australia has arrangements in place to provide the equivalent of workers compensation for injured volunteer firefighters.

The Workers Rehabilitation and Compensation Act 1986 (SA) s 103A provides that the government of South Australia is the presumed employer of some ‘prescribed’ volunteers and that they are, therefore, entitled to workers compensation.   The Workers Rehabilitation and Compensation Regulations 2010 (SA)  Reg 17 says that, for the purposes of s 103A, volunteer firefighters, that is a member of the Country Fire Service, are deemed employees of the State. As a deemed employee the volunteer is entitled to weekly payments based on the wages or income they would earn if they were self employed or employed. If the volunteer was not employed compensation is based on what they ‘would have received if he or she had been working in employment for which he or she was reasonably fitted’ (s 103A(2)(b)(ii)).

Ian Mannix from the ABC has ‘tweeted’

SA has community fund for CFS volunteers who lose their lives, or are injured or lost their homes. Donate http://www.cfsfoundation.org.au “

According to the CFS Foundation web site, the Foundation:

… provides vital financial support for the brave volunteer firefighters of the CFS, and their families, should they come to harm in the line of duty.

The Foundation provides support with:

Immediate Need

Support for CFS volunteers and their famlly through providing emergency transport from the ‘line of fire’, day-to-day living expenses for family members, and assistance so the volunteer can return to active service within the CFS.

Permanent incapacity

To assist in life needs by providing specialised equipment to support; communications, home and transport modification and vocational retraining.

Fallen in Action

At the passing of a CFS volunteer in the line of duty, help with funeral costs, support and financial counselling to the partners, and education assistance to their dependents.

CFS Volunteer Fund

A financial resource for families of volunteers who are severely injured or killed whilst performing their duties, will be developed through a corpus to be held in trust.

Presumably the Foundation perceives that such needs are not sufficiently met by workers compensation scheme so this scheme is intended to ‘top up’ the benefits provided by the State (House Of Assembly, Estimates Committee B, Thursday 21 June 2012, p 123, the Hon. J.M. Rankine, Minister for Police, Emergency Services, Multicultural Affairs, Correctional Services and Road Safety).

At the time of writing this dangerous bushfires are burning in Victoria and South Australia. In South Australia, the Police Commissioner has declared that the fires constitute a ‘major emergency’ (‘Adelaide Hills facing most dangerous fire day since Ash Wednesday, CFS says’ ABC Online, 3 January 2015).

South Australia has a graduated scale of emergencies. An event may be a ‘major incident’, a ‘major emergency’ or a ‘disaster’ (Emergency Management Act 2004 (SA) ss 22-24).   The Police Commissioner, in his or her role as ‘State Coordinator’ (s 14) may declare that an event is a ‘major emergency’ in accordance with guidelines published by the State Emergency Management Committee (s 21).   Whilst the declaration remains in force,

… State Co-ordinator must take any necessary action to implement the State Emergency Management Plan and cause such response and recovery operations to be carried out as he or she thinks appropriate. (s 25).

The State Coordinator is given various emergency powers that reflect or a similar to the powers that a fire or emergency service has when dealing with a ‘normal’ emergency (see Fire and Emergency Services Act 2005 (SA) s 42 (Metropolitan Fire Service; s 97 (Country Fire Service); s 118 State Emergency Service).

The State Coordinator will also be able to direct the recovery operations (s 27). That section says that the State Coordinator may give those directions ‘at any time after the declaration of a … major emergency…’ so the implication is that this power continues even after the declaration is withdrawn or lapses.

It is an offence to fail to ‘comply with a requirement or direction of the State Co-ordinator or of an authorised officer …’. The maximum penalty is a fine of $20 000 for a person or $75 000 for a company.   An authorised officer is a police officer or a person appointed by the State Coordinator (either personally or a member of a group) as an authorised officer (ss 3 and 17).

Conclusion

Although the fire services remain responsible for fire fighting, it is now the case that the State Coordinator, not the CFS Chief Officer, who is responsible for coordinating the emergency response to these fires.

Welcome to 2015. This is the first blog of the year but it’s reporting on a case that was decided last year and I thank Geoff and ‘nwa’ for drawing this case to my attention.

I have previously reported on the case of Dr Dekker in Western Australia (see `Improper professional conduct when a doctor fails to render assistance at a motor vehicle accident’ (November 28, 2013)). On 27 April 2002, around 6.15pm, Dr Dekker was stopped at an intersection when another car, travelling at an excessive speed, veered towards her. Dr Dekker moved out of the way and the other car passed behind her, left the road and rolled into a ditch.   Dr Dekker could infer that there had been an accident and that people may need care but she did not try to assess the injured, rather she drove to the local police station to report the matter. At the time of the accident it was dark and Dr Dekker had no torch, first aid kit or mobile phone.

Dr Dekker was originally convicted of causing the accident but her conviction was set aside on appeal (Dekker v State Of Western Australia [2009] WASCA 72). Dr Dekker was also charged with, and found guilty of, improper professional conduct for failing to stop and render assistance at the accident (Medical Board of Australia v Dekker [2013] WASAT 182).  Dr Dekker appealed that decision and now some 12 years after the event, the finding of improper professional conduct has also been set aside (Dekker v Medical Board of Australia [2014] WASCA 216 (21 November 2014)).

This case was an appeal from the decision of the State Administrative Tribunal that was made up of 4 members, a legal member, two medical practitioners and a lay member. At [23] the Supreme Court IMartin CJ, Newnes and Murphy JJA) said (at [23]):

The Tribunal said that the test for ‘improper conduct’ was conduct falling short of ‘infamous conduct’, but nevertheless conduct ‘which would reasonably be regarded as improper by professional colleagues of good repute and competency’.

The Court accepted that this was the relevant legal test ([40]). The issue on appeal was whether or not the Medical Board had led sufficient evidence to prove the allegation.   Because of that this case is really more about procedure rather than what can be expected of a doctor at an accident, and that is a matter that will be subject to further comment below.

No specific duty to aid at a car accident

The Tribunal had come to the conclusion that a doctor has a specific duty to stop at a car accident.   The Supreme Court rejected that conclusion. At [79] they said:

The duty, as formulated, arises without regard to the mental state of the doctor, the circumstances in which the doctor is, or may be, aware that a motor vehicle accident has occurred in his or her vicinity, and the circumstances of the accident. The duty as formulated would apply, for example, to a medical practitioner who lacked mental capacity or, for example, was affected by alcohol (eg, a doctor who has been drinking and takes a cab on the way home at the end of a long social evening). The duty would apply even if there were other emergency services on their way or already in attendance. It would apply irrespective of whether the doctor has other medical commitments (eg, if the doctor were on his or her way to perform an urgent operation). It would also apply irrespective of other, non-medical, commitments that the doctor may have (eg, a doctor on the way to a court to give evidence in answer to a subpoena). The duty as formulated would also require performance irrespective of the location of the accident. Thus, it would apply equally in a remote location in the bush where there is no town and no ready access to police or other emergency services, as in a city where the occupants of the vehicle or passers-by may be readily in a position to contact police or ambulance services. It would also require the doctor to attend where, in the circumstances in which the doctor is made aware of the accident or possible accident, it would appear that any injury would be minor.

Given the myriad and unforeseeable circumstances that can arise it is not possible for a general obligation to exist. (Here is it interesting to note that the Court’s reasoning is similar to the reasons of the dissenting judge, Mahoney JA, in Lowns V Woods (1996). Aust. Torts. Reps ¶81-376).

Critically for the Supreme Court was the question of proof. Although there were two medical practitioners on the Tribunal, it was not open to them to decide what ethical duties were owed by doctors based on their own opinion:

For there to be any relevant professional duty to that effect where improper conduct is alleged, it would need to be an ethical obligation generally accepted within the medical profession in 2002. A finding of a specific duty not generally accepted within the medical profession in 2002 would not be relevant, in that it would be tantamount to a ‘personal opinion’ held by the members of the Tribunal as to the standard of behaviour required.

Accordingly the Tribunal could not find that there was some specific duty relating to car accidents and doctors without their being evidence led by the Medical Board, and open to challenge by Dr Dekker, as to the nature and scope of that duty.

The court found that the Tribunals finding that there was a specific duty was an error of law both because there is no such duty and because they found that there was a duty without any evidence to support that conclusion.

Conduct ‘which would reasonably be regarded as improper by professional colleagues of good repute and competency’

In the absence of some specific duty, Dr Dekker would still be guilt of improper professional conduct if her conduct ‘would reasonably be regarded as improper by professional colleagues of good repute and competency’. That is a question of fact, not law, that is the issue is not what the law says but what professional colleagues whould say. The non-medical members of the Tribunal (the judge and the lay member) could not reach a conclusion on that matter without the benefit of expert evidence.

There may be some issues that the medical members could form a conclusion on as the matter is uncontroversial. A Tribunal might be able to accept the advice from the two medical members that a sexual relationship between doctor and patient is ‘regarded as improper by professional colleagues of good repute and competency’ but this case was not of that type.

The Court said (at [90]):

In this case, a finding of fact by the non-medical members that the appellant’s conduct would be regarded as improper by professional colleagues of good repute and competency generally was made in the absence of any expert evidence to that effect… [and] there was no identifiable knowledge or experience which the medical members were themselves drawing on to form their own conclusory opinion beyond what they understood to flow from a general duty or norm to care for the sick. If the medical members merely had a personal conviction that the appellant’s conduct was improper, that was insufficient.

She could and should have done something

Even if there was some obligation to act, there has to have been something Dr Dekker could have done. The Tribunal found that Dr Dekker could have illuminated the scene with her car headlights. The Court again found that this conclusion was made without evidence and (at [97]):

In the absence of any evidence of the topography of the location and the position of the other vehicle, there was no basis on either the agreed or otherwise found facts to infer that there was ‘no reason’ that the appellant could not have used the headlights of her car to illuminate sufficiently the other vehicle for the purpose of rendering medical assistance. The Tribunal thereby erred in law.

Dr Dekker claimed that she was in a ‘state of shock’, ‘petrified’ and ‘freaked out’ as a result of the incident. No-one called evidence as to what that might mean or what effect that may have had on her performance. The Board did not seek to argue that her capacity to drive to the police station, or call the police to describe her behavior, to argue that she could have helped. The Court said (at [125]):

… any conclusory finding of improper conduct would have depended upon a finding of fact that the appellant was physically able to render medical assistance. The onus was on the Medical Board to prove that fact. Presumably evidence as to the practitioner’s state could have been led from the passenger in her vehicle or from the police to whom she reported the incident.

In the absence of that evidence there was no basis to reach the conclusion that she was ‘physically able to render medical assistance’.

Discussion

As noted above, this case is really about procedure. The errors of law were based on the Tribunal reaching various conclusions without having received relevant evidence to allow those conclusions to be draw. As a result this is not a binding precedent on what is or is not a doctor’s duty in a particular case or in general. It would be open to the Medical Board, in another case, to lead evidence of the type that they did not lead here, so they could lead evidence as to what reputable practitioners expect and whether or not the profession expects doctors to always stop and render assistance at an accident.

With respect to a general duty to assist, the Court did identify how difficult it would be to formulate such a duty and as noted, that was similar to the dissenting opinion in the NSW case of Woods v Lowns.   Woods v Lowns was a case dependant on its particular facts including that the doctor was at work ready, willing and able to see patients and the doctor made various admissions as to what would be expected of a practitioner and what he could have done had he been called. That case turned on the question of whether or not the girl who went for the doctor went to the right house; she said she asked the doctor to attend and he denied ever being asked. The trial judge preferred her evidence to his.   In the Court of Appeal the majority upheld the trial judge’s conclusions that in the unique circumstances of that case there was a duty to attend, but how far that precedent extends is still unclear as there have been no further cases, until this case, on the question of a doctor’s duty to assist a stranger in an emergency.   This case has again moved back to the position that there is no general duty to aid a stranger. As noted above, however, it would remain open, in a future case, for the Medical Board to lead expert evidence as to what the profession would expect from a member in a particular case and a doctor who is able, but refuses to assist in an emergency, could still be subject to professional condemnation.

Road Traffic Act 1974 (WA) s 54

Although it was not raised in this case, the Road Traffic Act imposes obligations upon drivers involved in incidents that cause death or injury. A driver ‘involved in an incident occasioning bodily harm to another person … must stop immediately after the occurrence of the incident and for as long as is necessary [and] … must ensure that each victim receives all the assistance, including medical aid, that is necessary and practicable in the circumstances.’

Dr Dekker was not ‘involved’ in an accident with the other vehicle but she was, in my view, involved in an ‘incident’. She didn’t stop; she drove to the police station. She did not render assistance but by attending the police station she ensured that the victims received the necessary assistance.

Even if she was guilty of an offence under this section (and in all the circumstances I can’t believe she was guilty) that would not render her guilty of improper professional conduct as a medical practitioner. In an earlier case dealing with advertising, the Queensland Supreme Court had said:

… that in order to justify an adverse finding against a medical practitioner it was not sufficient merely to prove that he had breached one or more by-laws … It was necessary to prove that his conduct amounted to ‘misconduct in a professional respect’. (Dekker v Medical Board Of Australia [2014] WASCA 216, [57] citing Medical Board of Queensland v Cooke [1992] 2 Qd R 608, 616).

Conclusion

My correspondent ‘naw’ in a comment on my earlier post said that the outcome of this case was that ‘Common sense prevails…’ I’m not sure where ‘common sense’ points. The community probably does expect medical practitioners to assist in a sudden emergency but due allowance ahs to be given when the practitioners are involved in the event, not mere passers-by.

This case has not, ultimately, delivered binding conclusions on what can or should be expected from a practitioner but has affirmed that where there is an allegation that the doctor’s conduct, in the circumstances, was deserving of professional condemnation, it is up to the complainant to lead evidence as to what is expected by the profession and also to lead evidence as to what the respondent practitioner could and should have done.

The biggest criticism of this case is the time it has taken. In April 2002 Dr Dekker was involved in a near miss accident and she has spent 12 years responding to allegations that she was at fault both criminally and professionally. A justice system that takes 12 years and two trips to the Court of Appeal may be thorough, but it is inefficient and traumatic for all involved.   This delay was commented on by the Supreme Court (at [128]) and was one of the reasons given by the Court for making a final order to dismiss the allegation against Dr Dekker, rather than referring the matter back to the Tribunal for a new hearing that would, in effect, ‘enable the Medical Board to have another opportunity to ‘improve’ its case’ ([126]).

The end result is that (absent any appeal to the High Court), Dr Dekker can now walk away from that accident with a clear record.

The WordPress.com stats helper monkeys prepared a 2014 annual report for this blog.

Here’s an excerpt:

The Louvre Museum has 8.5 million visitors per year. This blog was viewed about 100,000 times in 2014. If it were an exhibit at the Louvre Museum, it would take about 4 days for that many people to see it.

Click here to see the complete report.

Since I began writing this blog, back on the 29th January 2009, the amount of interest, and number of followers has grown. In that time I’ve made 360 posts and there are now more than 1300 people following this blog via the blog site, LinkedIn, Twitter and Facebook.

Now many of my Facebook friends are long-term friends and family who, perhaps, have no interest in Emergency services law; and others have become ‘friends’ to access the blog but perhaps have little interest in the latest achievements of my kids.

In order to separate the personal from the professional I have set up a new Facebook Page – Australian Emergency Law (https://www.facebook.com/EburnM).   From today, this blog will be distributed via this professional face book page rather than my personal page. If you want to keep accessing the blog, please go to Australian Emergency Law and ‘like’ that page.  I anticipate that this page may also be another way for people to comment on, and ask questions about ,the relevant law and so continue the discussion.

Apart from Facebook, there are other ways to follow the blog.

1. Bookmark the blog main page at https://emergencylaw.wordpress.com/;
2. From the main site (https://emergencylaw.wordpress.com/)
   1. sign up for RSS feeds for posts and/or comments; or
   2. subscribe via your email address to receive immediate delivery of each new post;
3. Follow my twitter account – @EburnM – but a word about twitter – I put the blog out on twitter because WordPress lets me do it, but I don’t actually use twitter on a regular basis. People have tried to ask questions or comment on posts via twitter, but most of the time I don’t see those and so won’t respond, but please don’t take it personally; or
4. Join my LinkedIn connections – https://www.linkedin.com/profile/view?id=56117807

I thank everyone for your interest in the blog and look forward to continuing the discussion in 2015.

I wish all the followers of this blog a very Merry Christmas and Happy New Year and for those that are members of the emergency services, I also wish that you have a peaceful and quite festive season and are able to spend time with your families and loved ones and not out responding to floods, storms, fires, accidents and other trauma.

I have previously reported on the settlement of the 2009 Victorian Bushfires class action (see ‘Black Saturday bushfire survivors secure $500 million in Australia’s largest class action payout’ (July 15, 2014)).   A class action is brought by a representative plaintiff on behalf of people who suffered losses in the same event, as such it can affect the legal rights of people who are not actively engaged in the litigation.  To ensure that those people’s rights are properly considered, settlement of a class action must be approved by the Court.  In Matthews v AusNet Electricity Services Pty Ltd & Ors [2014] VSC 663 Justice Osborn of the Supreme Court of Victoria approved the settlement.

The terms of the settlement are that SPI Ausnet will pay $378.6 million, UAM (which was the defendant responsible for powerline inspections) will pay $12.5 million and the State of Victoria, on behalf of the CFA, police and land management agencies will pay $103.6 million.    The damages are to be distributed among 5847 claimants (which includes claims by insurers to recover amounts that they paid out under insurance policies).    The money will be used to pay the legal fees ($60 million) and then to meet claims for damages; 3/8, will be used to meet claims for personal injury or death and 5/8, will be used to meet claims for property damage and economic losses.   The state’s contribution will go to the personal injuries and death claims only.    It was estimated that personal injury claimants would receive about 70% of their total claims, and those claiming for property and economic losses would obtain about 33% of their total claims.  When taking into account insurance the average claimant would actually obtain about 2/3 (66%) of their total losses. Whilst these figures were necessarily ‘broad brush’ and unlikely to reflect final outcomes, in particular as no-one is really the ‘average’ it was accepted that there had been conscientious modelling by the parties to determine the likely outcomes for claimants.

Osborn J was not determining the legal issues between the parties but he gave a detailed consideration of the issues raised.  You can read my summary of the judgment here: Matthews v AusNet.  For those that don’t want to read the detailed summary, my conclusions and thoughts are set out below.

Commentary

This post cannot do justice to the judgement that runs for some 442 paragraphs plus appendices, but it does I think raise some interesting issues.  The ABC reports (‘Black Saturday class action: Judge approves $494m Kilmore East bushfire settlement’, ABC Online, 23 December 2014) that the plaintiff:

Ms Matthews said the settlement brings “an element of relief and a sense of comfort” and will help ease the financial struggles of the victims of the fire.

But she said power companies like SP Ausnet must heed the finding.

“I’m really hopeful that the evidence that was presented at the trial will encourage all the parties involved to renew and review their standards of operation,” she said.

“And [I] would like to say that the electricity companies, whether it be SP Ausnet or the newly-branded Ausnet Industries, need to take into account the rationale behind this record breaking class action settlement and they need to do everything they can to stop another avoidable disaster from destroying so many lives.”

I’m afraid to say I suspect Ms Matthews is unduly hopeful.  This is a settlement it is not a judgement. It is being made as a commercial assessment, by both sides, as to their risks in litigation.  There is no ‘finding’ (and to the extent I’ve reported findings, above, it was that the plaintiff’s case had real problems).  No-one can really believe that companies like Ausnet ‘need to do everything they can to stop another avoidable disaster from destroying so many lives’ because the obvious ‘everything’ is to not have an electricity grid, but no community will tolerate that (see ‘Bushfires; the price we pay for electricity’ (May 20, 2014)).

What this shows, in my view, is that there has to be a better way.  As Osborn J says, apart from 208 sitting days ([10]), there were ([24]):

(a)          … 26 pre-trial directions hearings; and

(b)          34 pre-trial applications;

(c)           60 major evidentiary and procedural rulings were made by the judge;

(d)          evidence was ultimately heard from 40 expert and 60 lay witnesses;

(e)          some 22,466 documents were loaded onto the electronic court book;

(f)           some 10,364 documents were tendered in evidence; and

(g)          in excess of 20,300 pages of transcript were generated in the course of the trial.

The plaintiff’s legal costs were $60 million.  Add to that the costs of providing the court, the costs of each defendant and no doubt costs that each member of the class met that will not be recovered just in putting together the details of what they lost.  Apart from these legal proceedings, the 2009 Victorian Bushfires Royal Commission

■ held 26 community consultations

■ received almost 1,700 public submissions

■ conducted 155 days of hearings—including eight days of regional hearings and 23 days examining the 173 fire-related deaths, the hearings for which were attended by more than 450 family members and friends of the deceased

■ heard from 434 witnesses, including 100 lay witnesses and two panels of expert witnesses

■ received 31 submissions from counsel assisting and 107 submissions in response from interested parties

■ webstreamed the hearings live

■ produced 53 internal research papers

■ prepared and released one discussion paper

■ prepared one information paper

■ generated over 20,767 pages of transcript

■ received more than 1,000 exhibits into evidence—encompassing nearly 17,000 documents, photos, maps, and audiovisual and other material

■ issued five practice notes

■ produced two interim reports and this final report

■ filed over 98,000 documents in its electronic data management system 2009 Victorian Bushfires Royal Commission Final Report Volume 4, [1])

And cost $40 million (2009 Victorian Bushfires Royal Commission Final Report Volume 4, [4.3]) – $20 million LESS than the plaintiff’s costs in bringing this case to court!  There has also been other litigation over these fires that has settled; see Further settlement of Black Saturday claims (May 17, 2012) and Thomas v Powercor – First Black Saturday case to settle (December 5, 2011).

Despite all the money spent on legal costs (putting aside the actual damages paid) there has been no definitive determination of legal rights and obligations (given all the cases settled) and as the evidence in Matthews v AusNet Electricity Services Pty Ltd & Ors shows, even if there is consensus as to the cause of the fire (failure of electrical assets) there is no consensus yet on what could or should have been done to prevent that fire or what can be done to prevent future fires.

Further, as noted here despite the $500 million payout, the claimants are not receiving the total cost of their losses.  The solution is not to suggest that people need to take responsibility and insure against such losses as, in this case, some 5000 claims were by insurance companies.  Much of these damages paid out here will be transferring money from those that insure the defendant to those that insure the claimants.

Worse than the money being wasted is the trauma experienced by those that have to keep reliving events and being subject to rigorous legal scrutiny and judgement (see ‘ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires’ (November 3, 2014)).   Whilst I’m sure the royal commissioners, judges and counsel will all believe in their contribution to community safety and allowing every one, and every view to be heard and tested, I am left with an uncomfortable feeling that little has been added.  In Canberra there was the original McLeod Inquiry followed by the lengthy coroner’s inquiry and inquest, with several trips to the Supreme Court, and finally litigation in the ACT Supreme Court and then Court of Appeal.  In terms of ‘learning lessons’ was anything really learned beyond the McLeod Inquiry – (see Ignatious Cha, Learning Lessons from Fires: A Study of Post-Disaster Inquiries in the 2003 Canberra Fires (2013, Unpublished Individual Research Project, Fenner School of Environment and Society, Australian National University)?

Anyone who thinks that, following the various inquiries into fires going back to 1939 and including inquiries into the 1983 Ash Wednesday fires, the 2003 fire season and now the 2009 fires we now have reached a stage where we understand fires and can, and will ‘do everything they can to stop another avoidable disaster from destroying so many lives” is bound to be disappointed.  Given the Australian climate, landscape and choices we make about where and how to live, another fire event is inevitable.

Given that bushfire and other natural hazards are inevitable, a new way of reviewing these events to identify causes, potential action to mitigate risk and to spread the risk of losses must be found.

Following my previous post – (Changes at the top (December 19, 2014)) I see that the Canberra Times has reported on the resignation of the ACT Chief Officer (Urban Fire) – Christopher Knaus, ‘Fire chief accused ESA commissioner of bullying and then quit months later‘ Canberra Times (Online) 19 December 2014.  The story reports:

ACT Fire and Rescue chief officer Paul Swain lodged a bullying complaint against his own boss, Emergency Services Commissioner Dominic Lane, in the middle of this year.

The allegations were formally investigated and found to be unsubstantiated in an independent process which was subsequently reviewed by WorkSafe ACT.

But the fact Mr Swain even made the formal complaint, regardless of its veracity, has raised concerns that a seemingly fractious relationship existed between two of the ACT’s most critical emergency services officers.

Mr Swain quit the agency early this month, leaving Canberra’s urban firefighters without a permanent chief officer at the start of summer.

In a follow up story, it is reported that the newly appointed ‘Emergency Services Minister Joy Burch has reiterated her support for the ACT Emergency Services Agency’ – Megan Gorrey, ‘Joy Burch backs ACT Emergency Services Agency after claims of senior leadership ructions‘ Camberra Times (Online) 22 December 2014.

The ABC is reporting changes at the top level in both Queensland and South Australian emergency services.

The Commissioner of Queensland’s Fire and Emergency Service, Lee Johnson is to take immediate leave to be replaced by Police assistant commissioner Katarina Carroll as interim fire commissioner.  The move follows a report that found the QFES ‘is a hostile workplace for women and is ill-equipped to deal with accusation of sexual harassment and bullying’ (‘Queensland Fire and Emergency Service a hostile workplace for women, report finds’ ABC Online 19 December 2014)

In South Australia, the chief executive positions for the State Emergency Service, Metropolitan Fire Service, Country Fire Service and marine rescue operations are to abolished and replaced with a commissioner who will lead all of South Australia’s emergency services.  According to the report, agencies are to retain their individual identities but ‘back room’ functions will be consolidated (‘Sole commissioner to lead SA emergency services after positions scrapped’ ABC Online, 19 December 2014).