This class action is being heard in the NSW Supreme Court because, as I understand it, the Queensland Supreme Court does not have provision for class actions.  Even so I confess I fail to understand why the NSW Court has jurisdiction to hear a claim for damages that occurred in Brisbane, alleging negligence by Queensland dam operators of a dam located in Queensland that lead to flooding in a Queensland river.  Perhaps the ‘representative plaintiff’, Rodriguez & Sons Pty Ltd is constituted in NSW?

In any event in Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater [2014] NSWSC 1565 the defendants sought to have the claim ‘struck out’ for various defects in the pleadings. Garling J in the NSW Supreme Court agreed (as did the plaintiffs’ lawyers) that the pleadings (that is the documents that set out the case against the defendant) would need to be ‘redone.  The judgment is very technical and deals with the law and rules of procedure rather than the law relating to the alleged negligence in the management of the Wivenhoe and Somerset dams.

The short answer is that the originating documents were struck out.  First the plaintiff had not addressed the relevant factors set out in the Civil Liability Act 2003 (Qld).  That section says:

(1) A person does not breach a duty to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)—

(a) the probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that creates the risk of harm.

The plaintiffs’ lawyers agreed that they need to ‘replead’ the case to address the concept of ‘risk of harm’ in this section.  Because that was agreed there is no discussion as to what the defect was but one can infer that they did not sufficiently identify the ‘risk of harm’ that the defendants SEQWATER, SUNWATER and the State of Queensland should have had in mind and without that ‘risk of harm’ being identified, they could not argue how s 9 applied to them   that is whether the claimed ‘risk of harm’ was one they should have taken precautions against and if so what a reasonable response would have required.

There were other objections that the judge did rule on.  The successful ones were that the plaintiff had identified nine relevant time periods during which decisions, which it alleged were negligent, but did not identify how those decisions caused or contributed to the ultimate damage.   The judge said the plaintiff had to identify for each period ‘the level of the dam which the plaintiff contends ought to have been the appropriate one’ at that time, so the defendant could identify how the various acts or omissions contributed to the ultimate damage.

Finally the plaintiff alleged the engineers were negligent in how they approached their task or judgments they made.  The judge said that ‘it is not correct to regard mental processes … as being capable of constituting a breach of duty’.  In other words the plaintiff could allege negligence in what the engineers did or did not do, but not for the thought processes that lead to those actions or omissions.    Accordingly the plaintiff would need to delete ‘those allegations which deal with states of mind, and limiting its claim for breach of duty to allegations of acting inappropriately or failing to act appropriately’.

One might think that was a victory for the defendants as the pleadings were struck out, but there were orders to allow them to re-plead the case in accordance with the judge’s directions by 13 February 2015.   Orders were also made to ensure the cases were prepared and the matter is listed for hearing, beginning on 18 July 2016.  There is no doubt a very long way to go and equally no doubt that there will be further ‘interlocutory judgments’ (ie judgments by the court on issues of practice and procedure to keep the case ‘on track’) between now and July 2016.

I have previously reported on the new 10/50 clearing rule in NSW.  This rule allows a property owner in a designated bushfire risk area to clear any vegetation within 10m of their home and any vegetation other than trees within 50m of their home (see ‘New laws to protect property from bushfires or to invite people into harm’s way? A tale of two cities’ May 30, 2014; ‘Changes to NSW Hazard Reduction rules’ November 15, 2013; “NSW bushfires spark a range of new laws” November 13, 2013 and ‘Damned if you do, damned if you don’t – what to do about personal hazard reduction‘ October 22, 2013).

As I noted in those posts there can be unintended consequences of these laws and as Victoria discovered it does allow people to use the laws to clear the land for reasons other than bushfire mitigation, eg to open up their view in a way that would not otherwise be allowed because of the competing priority to preserve vegetation (see Nillumbik Shire Council v Potter [2010] VCAT 669 discussed in the posts, above).

Another surprising result has now come out of NSW and I thank David, a regular reader of this blog for bringing this to my attention.  In Johnson v Hornsby Shire Council [2014] NSWLEC 1215 the applicant wanted to build a two story home on a block of land that contained valuable remnant Blue Gum Forest.   When the land had been subdivided (to create two building blocks where there had only been one) there was a restriction imposed on the use of the land ‘to preserve the remnant Blue Gum High Forest’ (see [7]).

The proposed development would have brought trees in that Forest within 10 metres of the home and the landowner would then have been able to rely on the 10/50 rule to clear those trees.   Hornsby Council refused the application to build the proposed home and the owner appealed to the Land and Environment Court.

The Court concluded that:

Granting consent to this proposal would allow more than half of the remnant Blue Gum High Forest in the Restricted Development Area, identified as a critically endangered ecological community pursuant to the Threatened Species Conservation Act 1995, to be lawfully removed. I am not satisfied that this represents a reasonable balance between the development of the newly created and approved allotment and the preservation of the remnant Blue Gum High Forest. For this reason, the proposal is refused.

The effect of the 10/50 rule is that a homeowner can clear trees up to 10 metres from the home regardless of their ecological value.  That they don’t need permission and that the rule overrides other consideration is the very essence of the rule (see Rural Fires Act 1997 (NSW) s 100R and Nillumbik Shire Council v Potter [2010] VCAT 669).  If the building had been approved that rule would have applied so now the rule was considered in a way that owners may not have anticipated, that is its application was a reason to refuse the development application.

People who object to being told what they can do on their own land in order to save themselves from themselves may have welcomed the 10/50 rule to allow them to take action without having to gain approval from the ‘nanny state’ but that rule would appear to have come back to bite these developers in a way that may not have been foreseen. Even so this is a victory for maintaining ecological values and demonstrates that fire prevention is not the only interest at stake when it comes to building in fire prone areas.

There has been moves to bring paramedics under the national health practitioner registration scheme.   At a meeting of the Australian health Workforce Ministerial council on 10 October 2014 the decision on whether or not paramedics should join the ranks of nationally registered health professionals was deferred (see letter from Dr Kim Hames, Western Australia’s Deputy Premier and Minister for Health to Paramedics Australasia and reproduced on their Facebook page.

I, with my colleague Ruth Townsend, have argued elsewhere why paramedic registration is a desirable outcome (see Why National Registration of Paramedics is Best by Townsend and Eburn; see also Eburn, M and Bendall, J ‘The provision of Ambulance Services in Australia: a legal argument for the national registration of paramedics’ (2010) 8(4) Australasian Journal of Paramedicine Article 4).

In the absence of a national scheme, Tasmania and South Australia have moved to limit who may call themselves a paramedic (see ‘Protecting the title of Paramedic (South Australia)’, October 2, 2014 and ‘Ambulance Service Amendment Act 2013 (Tas)’ January 24, 2014).   Victoria has announced that it, too, will move to regulate paramedic practice with a state based registration scheme (Denis Napthine, Premier of Victoria, ‘Protecting paramedics and the public’ 29 October 2014).   To that end the Department of Health has released an ‘exposure draft’ of the Paramedics Registration Bill 2014 (Vic).  The Department is calling for submissions on the Bill to be received by 15 December 2014.

The Bill is long (252 sections; 188 pages) but does not appear to contain anything too surprising.  It provides for the establishment of the Paramedics Board of Victoria that will set standards for paramedic registration; accredit education providers who are providing courses that are intended to lead to registration; maintain the register of paramedics and student paramedics, deal with issues of fitness to practice and professional standards, provide data for workforce planning and ‘regulate the advertising of paramedic services’ (s 7).

One of the functions of the Board will be ‘to facilitate the rigorous and responsive assessment of overseas-trained paramedics’ (s 4(2)(c); see also s 26(c) and (d) relating to accrediting overseas, but not interstate, education providers).  There is no similar provision for the assessment of inter-state paramedics.  It is possible that the Board will recognise qualifications and experience obtained interstate but there is in fact nothing in the Act that will, necessarily, assist interstate Paramedics to move to Victoria.  In the absence of national registration, registration in Victoria will also not assist paramedics to move from Victoria.

The Board will be made up of between 7 and 12 members but no more than ½ of the board, and not less than 1/3 must be paramedics.   Members are appointed by the Governor-in-Council on the recommendation of the Minister.  There is no provision for members to be elected from the ranks of the practising profession (s 8).

The Minister may set the policy direction of the Board (s 9).  The Board is to develop standards that must be met before a person can be registered as a paramedic but those standards must be approved by the Minister (ss 20-23).  The Board can also set Codes and Guidelines that apply to paramedic practice.  These Codes and Guidelines must be approved by the Minister if they relate to ‘qualifications, supervised practice, examinations for registration or the scope of practice of registered paramedics’ or ‘may have an adverse impact on the recruitment or supply of paramedics to the workforce’ (s 24).  That last point is of note as Ambulance Victoria will be the largest employer of paramedics in that state.

Any registration requirement that may restrict the ‘recruitment or supply’ of paramedics, even if justified on clinical or community safety grounds, would have an impact on Victoria Ambulance (and others) to ensure that they have sufficient paramedics to meet their service needs and patient demand.   It is up to the Minister to ensure that the Victoria health service is able to provide a service to Victorians but having a requirement that he or she must approve registration standards that may affect his or her ability to secure a supply of employees is problematic.    These sections (ss 20-24) appear to mirror the provisions in the Health Practitioner Regulation National Law (Victoria) Act 2009 (Appendix; ss 11-15 and 38-40) which require health boards to refer standards, codes etc to the Ministerial council but those provisions, dealing with the registration of doctors, nurses and others, do not allow the Ministerial Council to reject the recommended standards or code if it would restrict the supply of registered professionals.

The Bill anticipates a number of types of registration.    There will be

• General registration (s 33-36);
• Provisional registration (ss 37-39);
• Limited registration (ss 40-47):
  • For postgraduate training or supervised practice (s 41);
  • For an area of need (s 42);
  • In the public interest (s 43);
  • For teaching or research (s 44);
• Non-practising registration (ss 48-51); and
• Student registration (ss 61-68).

Limited registration for an area of need may be problematic if the Minister (s 43(1)) identifies an area in Victoria where it is hard to recruit enough paramedics and so allows the Board to register people to practice in those areas even though they would not be allowed to practice in Melbourne.

There’s no guidance when registration of a person who is not eligible for general registration would be in the public interest (s 43) but one case could be allowing overseas or interstate paramedics to travel as part of visiting sporting teams, or as part of visiting defence forces, to provide paramedic services to the members of their team or service.

The Board will have the necessary powers to verify peoples qualifications and identity and to check on their history to ensure they are appropriate candidates for registration and there are detailed provisions on the steps required to become registered including obligations upon the Board to give people a chance to be heard if the Board is intending to refuse the application or impose conditions on the person’s registration (ss 52-60).  Apart from registration, the Minister may determine areas of practice that require special endorsement (s 21) and there are provision on how paramedics apply for that endorsement to engage in those areas of practice (ss 69-77).

Registered paramedics will have ongoing professional obligations, in particular there will be obligations to:

• Undertake continuing professional education (s 88);
• Hold professional indemnity insurance (s 89);
• Advise the Board of certain events such as being charged with a criminal offence (s 90);
• Advise the Board of any change in the paramedic’s principal place of practice (s 91);
• Report colleagues who have engaged in ‘reportable conduct’ (s 111).

Once the Act is in place it will be an offence for a person other than a registered paramedic to call themselves a paramedic or otherwise imply that they are a paramedic (s 96).  This will not apply to ‘visiting interstate paramedics’ who are people entitled to call themselves a paramedic in another state and who have travelled to Victoria for the purposes of providing interstate transport for a patient.  So a NSW or South Australian paramedic commits no offence if they drive their ambulance, marked with the word ‘paramedic’, into Victoria in order to collect or deliver a patient or as part of an interstate deployment to assist with an emergency in Victoria (s 96(4)).

There are then detailed provisions on receiving and dealing with complaints about a paramedics fitness to practice and allegations of unsatisfactory professional conduct.  Most of these will be dealt with by the Board or disciplinary committees but they may be referred to the Victorian Civil and Administrative Tribunal (VCAT) where the allegation is one of professional misconduct or the paramedic asks that the matter be referred to VCAT.

As one would expect there are detailed provisions to allow the Board, on receipt of a notification to undertake a preliminary assessment, if necessary take urgent action to cancel or restrict a paramedic’s right to practice, arrange assessments as to the paramedics health or competence, to conduct investigations and to ultimately make decisions.  There are also provisions to ensure the paramedic has the right ot be heard and represented during these proceedings (ss 109-189).

The remaining parts of the Bill deal with

• Finance (ss 190-193)
• Information and privacy (ss 194-211);
• General matters including protection from liability for members of the Board and investigators and the various powers of investigators (ss 212-246);
• Transitional provisions to allow the change from the current unregulated system to the new Act, eg to allow current paramedics to get registered (ss 247-249); and
• Amendments to other Acts such as the Ambulance Services Act 1986 (Vic) that will be necessary to allow the new Act to operate (ss 250-252).

The most interesting thing, in my view, is that the Bill infers a coming right to private practice.  Under the current Ambulance Services Act 1986 (Vic) it is an offence to use the word ‘ambulance service’ so as to limply some connection with Ambulance Victoria or to use the word ‘ambulance’ on a vehicle that is not operated by Ambulance Victoria (s 39) (remembering that ‘Ambulance Victoria’ is a generic name that captures all the various ambulance services listed in Schedule 1 to the Act (ss 3 definition of ‘Ambulance Victoria’ and Schedule 1)).  Under the Non-Emergency Patient Transport Act 2003 (Vic) there is a licensing scheme for the providers of non-emergency patient transport services.  There is no scheme in place to licence private providers of emergency ambulance services.

Notwithstanding this there are suggestions in the Bill that private emergency ambulance services are intended.  First registered paramedics must hold professional indemnity insurance.  This is new as currently all paramedics must be employed in order to practice as it is their employer who determines their scope of practice and has the necessary authority to carry and use drugs.   As they are employees it is their employer, and most often that will be Ambulance Victoria, that will be liable for any negligence.  An obligation to carry personal insurance implies that they will be acting on their own, independent scope of practice.

Next the Bill deals wth the conduct of business that provide paramedic services; for example the Board may ‘prohibit [a] person from carrying on a business providing paramedic services’ (s 100).  It is an offence to conduct that business during the period of any prohibition (s 102).   It is an offence to advertise a business that provides paramedic services in a way that is false and misleading (s 98) but it is not an offence to provide that sort of business or to advertise it in a way that is not misleading and deceptive.  As has been noted above a paramedic must report to the Board if certain events occur.  These events include (at s 90(3)):

(iv) the paramedic’s right to practise at a hospital or another facility from which health services are provided is withdrawn or restricted because of the paramedic’s conduct, professional performance or health; or

(v) the paramedic’s billing privileges are withdrawn or restricted under the Human Services (Medicare) Act 1973 of the Commonwealth because of the paramedic’s conduct, professional performance or health;

Finally the paramedic must notify the Board if there ‘any change in the paramedic’s principal place of practice’ (s 91) not just in his or her employer.

To the best of my knowledge and belief, paramedics do not have ‘billing privileges’ under the Human Services (Medicare) Act 1973 (Cth) but it is clearly anticipated that this may happen.  Equally if one can, unless prohibited, conduct and advertise a business that provides paramedic services and conduct practice from ‘another facility from which health services are provided’ (s 90(3)(iv); emphasis added) and that is not restricted to a government or public facility (see s 3, definition of ‘health service’).   This is consistent with registration, if one is going to be registered then community safety is maintained through the registration and disciplinary provision and with professional indemnity insurance to provide redress in the case of negligence, the need to restrict paramedics to employment and in particular employment by Ambulance Victoria is lost.    It is a surprise as the Bill is not put forward as a Bill to open the door to private emergency paramedic providers and it does not expressly do so, but in my view it does open the door, by implication, for private providers of paramedic services (provided they don’t suggest they’re part of Ambulance Victoria, so they can’t put ‘ambulance’ on their car, but they could be ‘Event Paramedics’ or the like).   If the Bill (if passed) does not directly lead to a private industry in this area, it will certainly increase pressure to allow that industry to develop.

Who knows, perhaps Victoria see this a way to move from the provider of paramedic services to the industry regulator?

In Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales [2014] ACTCA 45 the ACT Court of Appeal has upheld the verdict in favour of NSW arising out of the 2003 Canberra bushfires.   The judgment extends for some 280 pages and my summary is 14 pages so  too long for a normal post here; rather I’ve uploaded that summary as a pdf file which you can access here – ACT Court of Appeal upholds verdict in favour of NSW.  For those that want to jump to the end, my conclusions are:

In Electro Optic Systems Pty Ltd v The State of New South Wales; West & West v The State of New South Wales [2012] ACTSC 184 Higgins CJ found:

• That the state of NSW through the Rural Fire Service and National Parks and Wildlife Service owed the plaintiffs a duty of care;
• The defendant via the Incident Controllers did not act as a reasonable fire service;
• Their failure allowed the fire to spread and damaged the plaintiff’s property; but
• The defendants were, however protected, by the operation of
  1. the Civil Liability Act 2002 (NSW) s 43; and
  2. the Rural Fires Act 1997(NSW) s 128.
• The Rural Fire Service did not owe a duty to warn residents of the ACT regarding the fire; and
• The Civil Liability Act 2002 (NSW) s 43A was not relevant as it had come into force after the date of the fires.

According to the ACT Court of Appeal Higgins CJ was wrong in nearly every respect.  He made findings of fact that were ‘inconsistent’ ([453]) with the evidence, he overlooked relevant law ([484]), his reasoning depended upon a ‘mischaracterisation of the case that was being put’ and he applied legal principles that had been rejected by the High Court as representing the law in Australia ([176]).

The court of appeal held:

• That the state of NSW through the Rural Fire Service and National Parks and Wildlife Service did not owe the plaintiffs a duty of care;
• The defendant via the Incident Controllers did act as a reasonable fire service;
• Their failure, if there was one, was not the cause of the plaintiffs’ damage; but
• If there had been negligence, the defendants would have been protected, by the operation of:
  1. the Civil Liability Act 2002 (NSW) s 43A; and
  2. the Rural Fires Act 1997(NSW) s 128.
• The Rural Fire Service did not owe a duty to warn residents of the ACT regarding the fire; and
• The Civil Liability Act 2002 (NSW) s 43 was not relevant as this was not a case involving an alleged breach of statutory duty.

The text in bold represent the two areas where the judges of appeal agreed with the trial judge.

The two incident controllers involved in this case had to make calls in a very short space of time.  They had to make decisions in the uncertain world of firefighting where events are fast paced, information difficult to obtain and where the outcomes can and did mean the difference between life and death and significant losses.

Higgins CJ heard the longest, most complex case in ACT history.  There is no doubt that hearing all that evidence, trying to understand the arguments of counsel and working through masses of documents must be very difficult.  Like the incident controller, a judge may be offered advice and assistance from others but the ultimate decisions are his and his alone.  Having said that, these cases were filed three years after the fires but not resolved until 10 years after the fires.  During that time the judge heard 80 days of evidence and reserved his decision from November 2011 (Louis Andrews and Megan Doherty, ‘Fire litigation ends for ACT’, Canberra Times, September 20, 2012) to 17 December 2012 – unlike the incident controllers who had hours to make their decision, Higgins CJ had over a year!  Higgins CJ found that the actions of those incident controllers were not ‘reasonable’.  The ACT Court of Appeal, in turn, found that Higgins CJ was wrong in nearly every respect.

The Sydney Morning Herald (31 October 2014, 10.48am) is reporting that the appeal to the ACT Court of Appeal regarding the 2003 Canberra fires has been dismissed.  The result is that the decision in favour of the State of New South Wales in Electro Optic Systems Pty Ltd v The State of New South Wales; West & West v The State of New South Wales [2012] ACTSC 184, stands.   (See my commentary ‘Judgment in the litigation arising from the Canberra fires of 2003 – updated 19 December 2012‘).

The Court has not yet published its reasons but, according to the report, ‘Chief Justice Helen Murrell said the decision would be published on the court’s webpage on Friday morning.’   I will post my analysis of the judgement sometime early next week.

This is a long answer – a correspondent writes and says:

I am both a staff member and volunteer with NSW SES.   Since last year all the SES pool vehicles have been marked-up in the SES “wave” Battenberg striping plus fitted with Roof-mounted light bars and a siren system. These cars also include reflective vests, triangles. Torch. First aid kit and Flood Rescue “throw bags”.

My concern is that these vehicles are being driven by generally clerical staff wearing official uniform. Some staff do have a previous emergency service background but that’s a minority. The SES does require staff to complete driver authorisation and most are certified as “bronze” which is the lowest level.   SES has provided staff with the opportunity to complete first aid training and most have. If any staff have received any flood rescue training or “Drive Operational Vehicles” training it has been mainly attained as a volunteer of the service.

My question to you is, if a SES staff member comes across a road accident or flood rescue situation, is there any legal obligation on the staff member to do anything regarding provision of a service? I know there would be a moral expectation to do something and I’m sure the community would have the same expectation too. If I was injured in an accident and I saw an emergency service drive past I’d be rather unhappy. I did come across a MVA last year, in a marked SES pool vehicle, that occurred in front of me so I activated the red & blues, protected the scene with my vehicle and commenced first-aid assistance. I was glad I was in the vehicle that had the appropriate equipment to render assistance.

If the attempted rescue by a staff member was unsuccessful or even “botched”, would the staff member be protected by the Good Samaritan’s Act or Civil liabilities Act?

I have read your paper of November 2003 in The Australian Journal of Emergency Management (‘Protecting Volunteers?’ (2003) 18(4) Australian Journal of Emergency Management 7-11) and I wonder if the contents are still applicable.

Strangely enough someone else raised the very same question the day before I got this email so it is clearly an issue of concern across the NSW SES.

First some assumptions or perhaps inferences from the facts.  The reference is to ‘pool vehicles’ so I infer that they are the collection of vehicles at the relevant HQ that are available as needed.  They are not issued to individual members to drive to and from work in order to allow them to respond out of hours.   It follows, if that is correct, that the ‘generally clerical staff wearing official uniform’ who are driving these vehicles are doing so as some aspect of their work requires them to travel from A to B.  They are being driven during the hours of, and as part of their work.

I can understand why the SES would choose to mark up the pool vehicles and equip them with emergency warning lights.  As pool vehicles they could be used by anyone and that allows them to be used during an emergency response.  Having some vehicles that are not so marked, and then can’t be effectively used during an emergency response would be expensive duplication.  Let us assume therefore that the decision to ‘mark up’ all the pool vehicles as emergency vehicles is reasonable.  (It might be different if a person was being issued with a ‘company’ car for their exclusive use or as part of a salary package, in which case one could question why it would be ‘marked up’ if the person did not have a field role in an emergency but, as I say, I infer that is not the situation we are discussing).

So we have the situation where a person who may be described as ‘clerical staff’, who has to travel for work, is required to drive a marked SES vehicle that contains some emergency response equipment including a first aid kit and Flood rescue ‘throw bags’ but this person, we assume, has not been trained as a flood rescue operator or in first aid nor have they been endorsed to operate the vehicle under emergency driving conditions (ie with lights activated and seeking right of way from other drivers: Road Rules 2008 (NSW) regs78, 79 and 306).  They come across an emergency, let’s start with a car accident with persons injured; what are their legal obligations.

As a general principle was can say there is no duty to rescue and in this regard the state authorities are in no different position to the general public (Stuart v Kirkland-Veenstra [2009] HCA 15) but that statement is misleading in its simplicity.  As Crennan and Kieffel 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. Some powers might be effective to avert or minimise a risk of harm to particular persons or their property, but the statute might not oblige their use. The relevant concern of the common law is whether a public authority might nevertheless be considered to be under a duty of care which obliges it to exercise its powers in a particular way.

So the general principle is that a public authority is in the same position as a citizen but the very statute that creates the organisation may well change that position and the common law may impose a duty to act in accordance with the statutory powers.    As noted in an earlier post (‘Queensland Fire and Rescue not liable after factory fire’ 3 October 2014) ‘The issue however, of if and when a fire brigade owes a duty of care remains unclear and must be determined on a case by case basis’.   That will be true for the other emergency services including the SES.

Let us think of the SES. The SES is one of the State’s emergency services.  It has a number of functions set out in the State Emergency Service Act 1989 (NSW) s 8.  These include:

(aa)        to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis…

(d)          as directed by the State Emergency Operations Controller, to deal with an emergency where no other agency has lawful authority to assume command of the emergency operation…

(e)          to carry out, by accredited SES units, rescue operations allocated by the State Rescue Board… [and]

(g)          to assist, at their request, members of the NSW Police Force, Fire and Rescue NSW, the NSW Rural Fire Service or the Ambulance Service of NSW in dealing with any incident or emergency…

None of these give rise to a statutory duty to assist in these circumstances.  I shall return to flood rescue shortly but looking at the car accident, there is no direction by the State Emergency Operations Controller and there is an other agency with lawful authority to assume command (in this case the police unless there is a risk of fire) so that authority exists, even if they are not yet on scene.  Nor is this an example of conducting a rescue allocated by the State Rescue Board or assisting the other services, at their request.   Of course the function under s 8(g) could arise if the SES member came upon an accident and one of the other emergency services was present and they did ask for assistance – eg if a police officer said – ‘park your car there and activate the warning lights so others know we’re here’.

Again assuming that is not the case, that is the SES member is the first member of any of the emergency services on scene, then there is no clear statutory obligation to assist.  The Act does not say that the SES is there to manage any emergency when no-one else is present.  I don’t think therefore there is any statutory obligation to stop and assist.  But in Electro Optics and West v NSW [2012] ACTSC 184, Higgins CJ was uncomfortable with the idea that the emergency services owed no duty of care.  He said (at [311]):

Similarly, whilst it would not be just or reasonable to impose a general duty upon persons to rescue another in distress, a distinction may be observed in the role of those who, by profession, training or statutory role assume and hold out a preparedness to respond to those in distress. For example, police, lifeguards, medical practitioners and, relevantly, fire fighters.

To that list could be included members of the SES.  That judgement is subject to criticism (by me) see ‘Judgment in the litigation arising from the Canberra fires of 2003 – updated 19 December 2012’) but his rejection of the English case of Capital and Counties v Hampshire Council [1997] QB 2004 has found support in the Queensland Supreme Court (Hamcor Pty Ltd & Anor v State of Qld & Ors [2014] QSC 224; see (‘Queensland Fire and Rescue not liable after factory fire’ 3 October 2014).

We know that in Woods v Lowns [1996] Aust Torts Reports 81-376 a doctor was successfully sued for not providing assistance to a person when asked to do so when he was at work but not otherwise engaged seeing patients.  In a similar way, a person in a marked SES vehicle and wearing a uniform who sees an accident is at work and, at least in the circumstances we’re assuming here, not otherwise engaged in emergency work.   A member of the SES who sees an accident is at the scene and can see that people may need assistance, and even those involved in the accident don’t need assistance, other drivers need to be warned of the danger.  There may be a duty to ‘make an assessment of the situation, including the nature of any injuries and needs of persons involved, and render assistance, by way of first aid, when the practitioner is physically able to do so’ (Medical Board of Australia v Dekker [2013] WASAT 182).  That is quite a different position than say the Rural Fire Service that is fighting fires across the State and making decisions about the allocation of scarce resources and making decisions that necessarily might forsake some properties to save others.   It’s easier to consider that a member in the first case has an obligation to at least stop and see what the situation requires, even though a fire brigade in the latter case does not owe anyone a legal duty (see Warragamba Winery v NSW [2012] NSWSC 701).

So is there a legal duty to stop?  The answer is not crystal clear but I don’t think any of the factors that lend weight to saying a fire brigade has no duty to an individual to respond or protect their property when managing a response to bushfires apply here.

Think then of the practical solution.  Consider you are a parent of Patrick Woods and you send for a doctor to assist your critically ill son and the doctor refuses to come.  What do you do?  You do what Mrs Woods did and vow to bring that doctor’s conduct to light.   But what if the doctor had turned up but done no more than reassure the concerned parents that the paramedics were doing the best that could be done and everyone, including the doctor, would be of most assistance by getting out of their way.   I suspect most people would say ‘thank you for coming’.   In our case I think my correspondent has got it right when they say:

… there would be a moral expectation to do something and I’m sure the community would have the same expectation too. If I was injured in an accident and I saw an emergency service drive past I’d be rather unhappy .

And the person who is ‘unhappy’ is the one that’s going to write to the Commissioner or consider taking legal action.  But if you stop, ring triple zero and activate the red/blue warning lights everyone’s going to appreciate your effort.

From a risk perspective, if the outcome you want to avoid is responding to a litany of complaint and criticism and both personal and institutional grief, you stop.   As for the law it’s virtually impossible to imagine legal consequences from stopping (discussed in more detail below) but there are developing precedents to the effect that there could be legal consequences for not doing so.

The next part of the question is:

If the attempted rescue by a staff member was unsuccessful or even “botched”, would the staff member be protected by the Good Samaritan’s Act or Civil liabilities Act?

There are two possibly relevant provisions in the Civil Liability Act 2002 (NSW).  They are Part 8 (ss 55-58) dealing with Good Samaritans and (usually in the emergency service context) Part 9 (ss 59-66) dealing with ‘volunteers’.   In our context the people involved are not volunteers but employees of the SES so Part 9 will not be relevant.  The Civil Liability Act 2002 (NSW) s 57 says:

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

A ‘good samaritan’ is ‘a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured’ (Civil Liability Act 2002 (NSW) s 56).   A member of the clerical staff may be a good Samaritan but they are of course being paid and they are being paid by the emergency services.  I’m sure however, if they were acting ‘in good faith’ a court could be willing to extend the concept to them, but the issue will probably not arise.  It will not arise because, as an employee fo the SES they would be entitled to protection under the State Emergency Service Act 1989 (NSW) s 25.  That section says:

(1) A matter or thing done by:

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

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

The SES consists of ‘the Commissioner, Deputy Commissioner and other staff of the Service’ and the volunteer members (State Emergency Service Act 1989 (NSW) s 7).  A member of staff, including ‘clerical staff wearing official uniform’ is a member of the SES.   A person who fails to stop for fear of legal liability or because they think they won’t be able to help is not acting in good faith.  A person who does stop and makes a decision and makes an honest effort to assist, is.   As noted above stopping at a car accident may not ‘exercising the functions’ of the SES as there is no specific function that is called upon.  If a court took that view then s 25 may not apply but then one would look to the Civil Liability Act.

A court may, in some circumstances, want to find that none of those provisions apply.  Assume that a staff member really overreaches themselves and does something stupid and dangerous and makes a patient’s condition worse.  A court may want to avoid both the SES Act and the Civil Liability Act to ensure that the injured person has a legal remedy.  The Court could find that the person was not ‘exercising the functions’ set out in s 8 (see above) and that the person is not a good Samaritan as they are performing the tasks of their employer, that is they are at work and not acting without expectation of payment or other reward.  If that happened the staff member would still be protected this time by the doctrine of vicarious liability that says that where a person is negligent in the course of their employment, it is the employer (in this case the state of NSW) that must wear that liability.  It would not be to the point that the person is employed as a clerical worker and not a field officer, the whole discussion above is premised on the fact that they are travelling in a marked SES vehicle, for SES work, in SES uniform.  If they get out of the car they are clearly representing the SES and it’s in the SES’ interest that they do; not only for reputational reasons but, for the reasons described above, the legal risks involved in not stopping are greater than stopping.  I don’t think there is any doubt that the SES would be vicariously liable for any alleged default in their actions at the scene.

Even if there is a duty to stop it does not impose a duty to be anything other than what you are.  If the person is not trained in first aid or traffic management then they are not trained.  They can only be expected to do what is reasonable in the circumstances which may be no more than make an assessment and ring triple zero to report what they have observed. Given there are red/blue lights on the car it may be prudent to turn them on too.  The SES, however, also has to act reasonably and it may, or perhaps should, recognise that putting people on the road in these cars does give rise to these issues and the ‘reasonable’ emergency service may well take steps to ensure that any member who is going to drive a vehicle marked up like this is trained in first aid or at least has some instruction on what they should do in the circumstances.    If that’s the case and if the person is unable to take action that would have saved a life because they were not equipped by the employer, then it is the employer, and not the person involved who would be negligent.

As for a flood rescue, the situation is somewhat different as responding to flood is a clear function of the SES.  Accordingly the argument that there is an obligation to do something, even if the only ‘thing’ is to stop and report the situation and warn others to stay away from harm, is much clearer.  Equally in that situation the application of s 25 cannot be questioned. The staff member who seeing people in need of flood rescue and who therefore stops the car, activates the lights and calls for help, is performing a function under the Act.

In Gibson v Chief Constable of Strathclyde Police (Unreported, Court of Sessions, Scotland, 26 February 1999) the defendant was liable when two police officers observed a bridge had been washed away.  They parked their patrol car on the south side of the (former) bridge and activated their lights warning drivers in both direction of the danger.  They put cones and barriers on the south side and asked for police on the north side to be notified.  Eventually the police left the scene but no action had been taken on the north side and the plaintiff drove into the river.

The Chief Constable was negligent for not having the appropriate procedures in place to ensure that when the incident was reported someone went to the north side to put up barriers, but also for the negligence of the officers who drove away without confirming that the north side had been marked off and by leaving they removed the only warning for drivers approaching from the north, that something was amiss.

In our context, and given the SES is the combat agency for floods and storms and is to ‘to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods…’ etc failure by even a clerical officer to stop and activate the warning lights if they were aware of flood waters across a road would be negligence for which the SES would be liable.

Conclusion

The issue of what steps should be taken by non-operational staff in marked emergency vehicles is one of classic risk assessment.  Consider the possible outcomes, their likelihood and what can be done to mitigate the risk.    What is the probability that these people will come across some emergency in the course of their driving?  I suggest it would be reasonably high and compounded by the fact that they are in an SES vehicle these things may be brought to their attention, that is we may see something by the side of the road and we’re not sure what it is so we keep going, but if you’re in an SES vehicle, someone may actually come out and flag you down.   So the probability is reasonably high.

What are the possible outcomes?

1. You don’t stop. The reputational risk to the SES is very high and although the law is not clear it is at least arguable that there is a legal duty to stop. Even if there is not there is a reasonable risk that one will have to deal with complaints to the Commissioner, the press, the Minister and possible court action.
2. If you do stop there is some risk of legal action for any mistake made but that is remote. Remember that Dr Lowns was sued for not going to an emergency, no-one’s been sued for going.  Even if there were action, the member could rely on the SES Act, the Civil Liability Act and vicarious liability.  The chances of being personally liable only arise in the most extreme case of deliberate misconduct.
3. If you do stop you don’t have to be what you are not. A member cannot be expected to perform as a paramedic or flood rescue technician if that is not what they are; but the SES may be expected not to put people in emergency cars without some basic training.  Failure to do so is to expose them, and others to risk.

So what’s the solution?  Without thinking this through in detail it would seem prudent that the SES should:

1. Explain to its drivers what it expects. I would hope that is a statement that if they see an emergency they are expected to stop and do what they can to help.  That may be no more than activating the warning lights and ringing for help and if that’s all that they can do it’s better than nothing.
2. The staff should be trained so they know how to turn the beacons on and how to ring for help.
3. As a volunteer we’re required to be trained in Induction, First Aid and Operate Communications Equipment before we can turn out. There may be industrial issues involved but an appropriate response may be to train anyone who’s going to drive a marked car in, at least, first aid.  What sort of training should be given would require a risk assessment based on the Work Health and Safety Act 2011 (NSW).

Finally, I’ve looked back over my 2003 paper and can’t see that there have been any significant changes except so the principles discussed there are still of general application.

That’s the heading of an article in the Canberra Times of 26 October.   The gist of the story is that ACT Fire and Rescue were attending a very significant fire in central Canberra when the Commissioner of the Emergency Services Agency arrived on science and questioned the superintendent (who one can infer was the incident controller but that language is not used in the paper) ‘about the placement of the Bronto [aerial firefighting platform] as firefighters worked to bring the fire under control.

The paper says:

ACT law strictly limits the commissioner’s operational role and, in many cases, his power to issue directions to service chiefs on how they should respond to emergencies like the Sydney Building fire.

The relevant law is the Emergencies Act 2004 (ACT).  This Act is unique in Australia (and reflects the Territories small size) as it brings four emergency services; ACT Fire and Rescue, the ACT Rural Fire Service, ACT Ambulance and the State Emergency Service, under a single agency, the Emergency Services Agency, which is under the management of the Commissioner.  A Chief Officer is appointed for each service.   All of the Chief Officers have extensive powers to deal with an emergency under their control (s 34) and the Chief Officers of the two fire brigades are given further powers to deal with fires (ss 67 (fires in built up areas) and 68 (rural fires)).

The Commissioner ‘is responsible for the overall strategic direction and management of the emergency services’ (s 8).   During an emergency the Commissioner ‘may direct a chief officer to undertake response or recovery operations in relation to the emergency’ but he or she may not ‘direct the chief officer to undertake an operation in a particular way’ (s 8A).    Although the Act does not refer to ‘command’ and ‘control’ this section reflects that distinction: the Commissioner can assign a task to any of the Chief Officers (control) but it is up to the Chief Officer to determine how they will perform that task (command).

The paper does not say that the Commissioner was directing the superintendent but rather was asking questions.  One does not need lawful authority to ask a question: ‘The power of inquiry, of asking questions, is a power which every individual citizen possesses… (Clough v Leahy (1904) 2 CLR 139 (Griffith CJ)) so anyone could have asked the superintendent whether or not the Bronto was appropriately deployed.  Whether the superintendent would have chosen to answer, may well depend on whether the questioner was the Commissioner of the ACT Emergency Services Agency, one of the firefighters or a bystander, but anyone can, and more importantly, should ask questions if there is a perceived issue.

Failure to ask, because of concern about the chain of command, can lead to tragic outcomes.  If a subordinate sees a problem but fails to ask his or her superior ‘do you think that’s ok’ or a superior, even without lawful authority to give directions, fails to ask then mistakes may be made or continued.    Any sensible learning organisation would encourage anyone in the chain of command to speak up if they perceive that a mistake is being made.  The 2009 Victorian Bushfires Royal Commission was critical of the actions of the various Chief Officers for not asking questions of their incident controllers (see 2009 Victorian Bushfires Royal Commission, Final Report, Vol II, [2.3]).  Whilst the ESA Commissioner is in a different position to the officers in charge of Victoria’s response in 2009, it remains the case that if he or she observed something or wanted to make inquiries, either so he or she could better understand the response in order to report to the Minister, or to raise an issue with the incident controller, it would be remiss not to do so.  One can rest assured that any inquiry into a poor outcome would look unkindly on any Commissioner (or any fire fighter) who said ‘I thought that the Bronto was in the wrong place and not being used effectively but I didn’t say anything as the Act didn’t allow me to give directions’!

There is a clear distinction between giving directions on how a job is to be done; and asking questions.  Anyone should be prepared to ask questions if they think there is a safety or efficiency issue (ie that it wold be safer, or more effective, to take a different approach).  No incident controller should think that they have all the answers and having another person ask a question should at least flag that there may be an issue that needs to be considered.  Having a culture that discourages anyone from asking a question will only lead to tragedy.  The Commissioner, asking questions, was not a breach of the Emergencies Act 2004 (ACT) and is consistent with the Work Health and Safety Act 2011 (ACT), the Commissioner’s responsibility to report to the Minister and the common law.

Readers of this blog who are current undergraduate or post-graduate students may be interested in this essay contest sponsored by by the International Federation of Red Cross and Red Crescent Societies (IFRC), the American Society of International Law Disaster Law Interest Group (ASIL DLIG), the International Disaster Law Project (IDL) of the Universities of Bologna, Scuola Superiore Sant’Anna, Roma Tre and Uninettuno, with support from the International Institute of Humanitarian Law.

The contest invites students from anywhere in the world to submit an 5 000 to 10 000 word essay (including footnotes) that represents creative thinking and analysis about disaster law in a comparative and/or international perspective.  The closing date is 30 January 2015.  More details can be found in these attached documents:

• Flyer-Essay contest
• Announcement disaster law essay contest

Any of my blog subscribers want to talk about their idea for an essay, do feel free to get in touch via email to michael.eburn(at)anu.edu.au (substituting @ for (at) in that address).

I wish anyone who chooses to enter the very best.

Michael.

I was asked this question by a Queensland SES volunteer (though I have edited the text somewhat):

Accepting that the power to appoint includes the power to revoke that appointment of an SES volunteer the how might the phrase ‘“only if satisfied the person has the appropriate abilities to bean SES member” in Fire and Emergency Services Act 1990 (Qld) s 132 be qualified or clarified?

It’s true that were an Act gives a person, such as the SES Commissioner, the power to appoint a person to an office also gives them the power to revoke that appointment (Acts Interpretation Act 1954 (Qld) s 25).

Section 132 of the Fire and Emergency Services Act 1990 (Qld) says:

(1) The SES consists of the persons appointed by the commissioner as SES members.

(2) The commissioner may appoint a person as an SES member only if satisfied the person has the appropriate abilities to be an SES member.

The reference to appropriate abilities means that the commissioner does not have to accept every application for membership.  There is little room to challenge that where the person is an applicant, rather than a member.  There is no right to be a member and no loss by not being denied a right to join.  A person who applied to join the SES and whose application was rejected would have little if any grounds to challenge that decision or to argue that they did have the ‘appropriate abilities’.  It is a matter for the Commissioner.

The case is different if the Commissioner, acting on the power in the Acts Interpretation Act, moved to revoke an appointment.   Interestingly the Act has significant details on how the Commissioner must act when seeking to discipline members of the Queensland Fire and Emergency Service (see ss 30-33) but these do not appear to apply to the SES.

In any event before seeking to revoke a person’s appointment, either for disciplinary grounds or because they no longer have ‘the appropriate abilities to be an SES member’ he or she would have to give them natural justice, ie the commissioner would have to notify the member why he or she thought action should be taken and allow them the chance to make submissions to the effect that their appointment should not be revoked (see Castle v Director General State Emergency Service [2008] NSWCA 231.  In Castle the NSW Court of Appeal confirmed that a volunteer unit controller was entitled to natural justice when the then Director General moved to close the unit and necessarily cancel the Unit Controller’s appointment.  The Controller argued that he should have been given the opportunity to make submissions to the Director General as to steps he could take to rebuild the membership, Basten JA held that ‘in the present case, that where the decision to revoke the appointment was based upon the deregistration of the unit, the applicant was entitled to respond to the reasons for deregistering the unit…’)

It’s impossible to make any prediction on what the Commissioner may consider ‘appropriate abilities’ but one can imagine it would include a person who’s appointment was going to be terminated as he or she had an injury or disability that meant they could no longer function, but that would be a hard call given the volunteer nature of the SES.  Even if a person could not perform active rescue duties there are likely to be many other roles that they could perform.

So, in any summary, the Commissioner could revoke a persons appointment if they no longer had ‘appropriate abilities’ but he or she would have to give them a chance to be heard before that decision was made.  What would constitute a lack of ‘appropriate abilities’ would be a matter for the Commissioner but given the nature of the SES it’s hard if not impossible to predict what would be sufficient grounds to make that finding.

This question comes from a volunteer with St John Ambulance (NSW) who asks:

I am a St John Ambulance volunteer and also work for a private pre-hospital care service provider here in NSW.

Quite a few times in my career with the private sector as well as on duty with St John I have been in situations where people have attempted to take over or keep me from providing treatment to a patient by proclaiming: “I am a doctor/nurse”.

This has happened in different scenarios for example, coming across an accident and a person in scrubs and with hospital ID to a loud proclamation from a friend of a patient at a party or even just a bystander on a soccer field.

Neither my company nor St John have a clear policy to deal with this nor as far as I understand has any other service. Even ASNSW (upon asking) seem to deal with this case by case.

My question to you would be if there is any legal writings on this scenario at all? You can generally have a good guess at who is actually a doctor/nurse and who isn’t, based on their behaviour but I myself have never been a particular fan of handing over the care of a patient to someone who I cannot identify clearly.

Also I wonder if there are any consequences for those who show up and claim to be health care professionals but aren’t?

There are some important first principles here.  The first is that doctors or the medical profession don’t ‘own’ health care, others such as nurses, paramedics and first aiders don’t practice their art at the direction of, or with the permission of doctors (see earlier discussions in ‘Doctors delegating authority to carry drugs’ (20 August 2014) and ‘What is a paramedic’s ‘authority to practice’?’ (19 August 2014)).

Second no-one ‘owns’ the patient.  The issue must always be what is in the patient’s best interests or who is best able to provide the care that the person needs.

Let me then turn to the law and let me assume the patient cannot consent (because if they could consent they could chose who they wanted to accept care from).  The case about treating those who cannot consent is In Re F [1990] 2 AC 1 where Lord Goff said (emphasis added):

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

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

If there is a person who is unconscious, anyone can help and commits no battery if they do help but not if their intervention is officious that is ‘another more appropriate person is available and willing to act’.  That begs the question of who is the more appropriate person and I would suggest that is not necessarily a doctor.

If the person is at a public event where the St John Ambulance is in attendance and contracted to provide the health care services, then the St John staff are the appropriate people to help.  An off duty doctor or paramedic, or nurse has no right to insist that they hand over care to them and why would they want to?  They would then get ‘stuck’ with the person, what are they going to do with them?  Assume the person giving care is a paramedic with their ambulance, a doctor isn’t going to want to have to drive the person to hospital; they need to go by ambulance so the ambulance officer is the appropriate person.  A position made even clearer by the fact that the state ambulance service is the authority established to provide that purpose (see, for an earlier discussion of the relationship between a doctor and the ambulance service, my article ‘Doctors, the Duty to Rescue and the Ambulance Service‘, (1999) 10 Current Therapeutics 92-95).

Equally however, if a person with first aid training comes across a scene and sees people caring for the injured and the person appears to be a doctor, then they could stop you providing care – just as if you are on St John duty a doctor has no right to push you aside; if a doctor is treating an accident victim, you have no right to push them aside.   In short it is not the case that a doctor always is, or is not, the more appropriate person to provide care.  It will depend entirely on the circumstances, eg if there is an off duty first aider and an off duty doctor at a car accident then one might expect the doctor to take charge; it would be different if the doctor was off duty at a public event and St John were the contracted first aid providers, and very different if the issue is between a doctor and an ‘on duty’ NSW Ambulance paramedic.

The NSW ambulance paramedic would be in a different position by virtue of the role of the ambulance service and the provisions of s 67J of the Health Services Act 1997 (NSW) which says:

A person must not intentionally obstruct or hinder an ambulance officer when the ambulance officer is providing or attempting to provide ambulance services to another person or persons.

In Western Australia two St John Ambulance officers (remembering that St John provide the ambulance service in that state) attended a call to a person collapsed in a medical centre carpark.   On arrival one of the doctors was attending to the patient.  In a complaint under the Equal Opportunity Act 1984 (WA) (Zangari and St John Ambulance Service [2010] WASAT 6 (25 January 2010)):

Dr Zangari [said] that on 6 July 2006, the ambulance officers, as employees of SJA, discriminated against her on the grounds of her race when they provided ambulance services to her. She says they dismissed her, ignored her and were rude to her. She relies on an inference that there is no other reasonable basis to explain the ambulance officers’ actions, other than that they had a stereotypical view of who they were dealing with and their stereotypical view was based on race. She says they therefore treated her less favourably than they would have treated someone who was not Italian, and it would seem, particularly a doctor who was not an Italian.

The State Administrative Tribunal of Western Australia found that the Doctor did not have standing to bring the complaint as St John was not providing a service to her, but to the person in need.  That’s the technical legal answer but there are some interesting observations relevant to our discussion.

First (at [187]) the tribunal said: ‘Dr Zangari seems to argue that she is in a special position with SJA because she is a medical practitioner. We agree she should be treated with respect and regard should be had for her status as a medical practitioner. But it does not put her in a special or different position when considering the nature of her connection with SJA.’  The Doctor was not a ‘conduit’ between the patient or St John, she was just a bystander who happened to be a doctor.  She argued that part of the relationship is that she arranged for the ambulance to be called to ‘have the patient attended to under her supervision and transported to hospital’.  The tribunal rejected the idea that the paramedics would treat the patient ‘under her supervision’.

The Tribunal went on to say:

190         … It was acknowledged and we find that on arrival, the ambulance officers are entitled, if not required, to take charge of the situation; which is what the ambulance officers correctly did on arrival at the surgery; they have the primary conduct of patient care and in this case, Ms Howell was the attending paramedic and also the primary person in charge: (see [5] of Ms Howell’s witness statement). The medical practitioner takes a step back once an ambulance arrives, allowing the ambulance officers to attend to the patient and provide what is needed. We have found that this did not happen in this case. The patient becomes SJA’s patient and for the purposes of the particular incident is no longer the medical practitioner’s patient, regardless of the physical location of the patient. For ambulance officers, patient care is their first priority and we find that when the ambulance officers went to the surgery, Mr L was their first priority and they were primarily focused on him and his needs, and accordingly, devoted their attention and skills to him.

191         The role of the medical practitioner is to provide patient and other pertinent information and medical or other assistance if required, by the ambulance officers. It would be good practice if the medical practitioner does what they can to facilitate patient diagnosis and care by the ambulance officers. It would certainly be pertinent and helpful for a doctor present at the scene to identify themselves as such, particularly if they are the patient’s treating doctor. There is no stated policy document or procedure (of which we are aware) that requires ambulance officers to seek out or engage the assistance of a medical practitioner if they are called to provide assistance at a doctor’s surgery (as was the case here), or indeed at any place where a medical practitioner is present. It might be common sense to do so, but it is a discretion exercisable by the ambulance officers based on their appraisal of the situation they are attending and on the needs of the patient, and on the ability of the patient to provide the required information.

192         We have found, on the facts, that the ambulance officers did not require information or assistance from Dr Zangari because they gathered adequate and appropriate information from the patient as was the correct procedure in this particular situation; in the third, fourth and fifth allegations, Dr Zangari is critical of the ambulance officers for not ‘engaging’ her ‘assistance’ at various times throughout the period they were attending to Mr L in the car park. But she offers no detail of what ‘assistance’ she could have given or should have been allowed to give nor does she explain how the ambulance officers, acting on a priority one callout, could have ‘engaged her assistance’. The ambulance officers did not require assistance from Dr Zangari as they concluded either that they did not need any assistance or that Dr Zangari was incapable of providing any sensible assistance because she was emotive and panic­striken. Dr Zangari did not provide any convincing evidence of what assistance she could have provided to the ambulance officers or Mr L if requested by the ambulance officers…

That’s not a binding precedent but it appears to be a sensible approach, whether the person providing care is a St John volunteer at a public event or a paramedic responding to a triple zero call.

Having said that no-one should stand mute if the person giving care is going to make a mistake.  A doctor should intervene if the first aider or paramedic is going to harm the patient and equally a paramedic or first aider should intervene if a person who claims to be a doctor is clearly going to harm the patient.  Professional modesty should not stand in the way of protecting a person against poor care.

Are any consequences for those who show up and claim to be health care professionals but aren’t?  Absolutely.  A person who steps out of the crowd in order to assist may want to rely on the good Samaritan provisions in the Civil Liability Act 2002 (NSW).  Section 57 says:

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

Section 58(3) goes onto say (emphasis added):

This Part does not confer protection from personal liability on a person in respect of any act or omission done or made while the person is impersonating a health care or emergency services worker or a police officer or is otherwise falsely representing that the person has skills or expertise in connection with the rendering of emergency assistance.

If they are sued then, as the High Court said in Rogers v Whitaker (1992) 175 CLR 479 ‘The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill’.   So if a person claims to be a medical practitioner and they are not, they get no protection from s 57 and if they were sued the question would be ‘did they act as the reasonable medical practitioner’ because that is the skill they ‘professed’ to have.

A fire fighter in South Australia asked me this:

My query relates to the South Australian Fire and Emergency Services Act and Regs. Within the act, the Chief Officer of the CFS is empowered to impose penalty on CFS volunteer members (Div 6 sec 70 (12)) based on “reasonable grounds”.

This sounds fairly loose and subjective and I dont think there is anything else in the act which sheds light on what “reasonable grounds” may be. It appears to give the CO a free hand to do anything he likes unless there is a  review mechanism available outside of the CFS

Should the Chief Officer pursue an action against a volunteer individual “unreasonably”, are there any general appeal grounds outside of the CFS, for instance can the Ombudsman review the Chief Officers decision, is this possibly covered within the jurisdiction of the State Admin appeal or any other body?

The relevant section is, as my correspondent has noted, in the Fire and Emergency Services Act 2005 (SA) s 70, subsections 11 and 12.  These subsections says:

(11)        The Chief Officer may, on reasonable grounds—

(a) demote a person who holds a particular rank in SACFS;

(b) disqualify a person from holding a rank in SACFS;

(c) disqualify a person from membership of SACFS;

(d) exercise any other disciplinary power in accordance with the regulations.

(12)        Before taking action against a person under subsection (11), the Chief Officer must give the person a reasonable opportunity to appear before the Chief Officer (either personally or through his or her representative) and to make submissions in relation to the proposed course of action.

Subsection 12 is in effect a statement that natural justice must be applied (see also Castle v Director General State Emergency Service [2008] NSWCA 231).  Natural justice requires that a person is given the opportunity to address an impartial decision maker before a decision is made and to make submissions as to whether, in this case, there are ‘reasonable grounds’ upon which the decision maker can act, and if there are, what action he or she should take.   The decision must be made by an impartial person so if the person appointed to make the decision, whether the Chief Officer or his or her delegate, is not, or might not be seen to be, impartial, they should step aside to allow someone else to make the decision (see the ICAC report into the ‘NSW State Emergency Service – allegations concerning SES Commissioner (Operation Dewar)’).

The question then is, “what are ‘reasonable grounds’”?  To have a requirement for ‘reasonable grounds’ is to say that he decision cannot be made on a whim; it does not give the Chief Officer ‘a free hand to do anything he likes’ rather he or she has to have ‘reasons’ for that decision.

In George v Rockett (1990) 170 CLR 104 the High Court had to consider what ‘reasonable grounds’ meant when considering whether or not a Magistrate had reasonable grounds to issue a search warrant.  In a unanimous judgment the Court (Mason CJ., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said (at [8]) ‘When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person… That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers.’

To put that in our context, the Act doesn’t say that the Chief Officer must have ‘reasonable grounds’ to believe some fact is true, but he or she may only act upon ‘reasonable grounds’ that is he or she must have some reason to make the decision; he or she must be aware of, or be satisfied that there are facts which are sufficient to show that their action was warranted by those facts.  So if the allegation was that the person had acted in a way that was improper, whether deliberately, negligently or because they are incompetent, then the decision maker would have to be able to identify what he or she believed had happened and why that justifies the action taken.

As the High Court noted the requirement for reasonable grounds opens the decision to judicial review.  If the power was a power to dismiss for any reason that the Chief Officer decided then there could be no review, the Chief Officer could do what he or she liked.  As there has to be reasonable grounds though, there can be review under the relevant Administrative Review processes in the State (for South Australia see the Legal Services Commission of South Australia, ‘South Australian Ombudsman’ and ‘State Administrative Appeals’’).

Ultimately because the Chief Officer is making a decision according to law, a court of law (in South Australia, the Supreme Court) could be called upon to review the decision (see South Australia Legal Services Commission of South Australia ‘Judicial Review’ and Supreme Court Civil Rules 2006, rr 199-201).  The judge’s task would be to determine whether there were ‘reasonable grounds’ for the decision not whether he or she would have made the same decision.   The question for the judge would be ‘did the decision maker have some reasons, some evidence to establish the facts upon which he or she relied and some reason for making the decision he or she made?’  If the answer to that is ‘yes’ then the decision would be expected to stand.

I received this from a Victorian paramedic:

We’ve recently been having a discussion on informed consent. Not, as you would think on treatment consent, rather financial consent.

Our question is: are there any obligations on an ambulance paramedic to provide information to a patient/relative on the financial implications of their transport to hospital?

All ambulance services charge in some form or another, and we believe that it would be an interesting situation for a patient to receive a bill then argue they weren’t adequately informed about the costs of their treatment and transport – and thus refuse to pay. At the extreme this could even been brought further back to the call taker stage – where a number of services now charge for turning up. Should despatchers advise callers that the call out fee for ambulance assessment is $x?

This question is not unreasonable and recently a caller to Sydney radio station complained about receiving an ambulance bill in just these circumstances, though he was given very little support from Ray Hadley – you can hear the phone call at http://www.2gb.com/article/ray-hadley-refusal-pay-ambulance#.VC5K0SmSzBc.

According to the Australian Consumer Law (set out as Schedule 2 to the Competition and Consumer Act 2010 (Cth)) ‘unsolicited services means services supplied to a person without any request made by the person or on his or her behalf’ (s 2). A person must not assert a right to be paid for unsolicited services (s 40). Further a term of a standard contract that is ‘unfair’ is void (s 23).

If a person rings for an ambulance they are clearly making a request for that service, as they would be if someone rings on their behalf, eg when a friend says ‘you’re not well, do you want me to call an ambulance for you’. Often a person will not ring an ambulance for themselves, either they are not capable of doing so or, even if they are competent, someone else rings without their knowledge.

Consider, for example, a shopkeeper who sees an accident outside his or her store and who immediately rings triple zero without the consent or knowledge of the people involved in the accident. A person who was involved in the accident may have some minor injuries including a laceration on the arm. They are approached by a paramedic who asks ‘Are you OK?’ The person says ‘yes’ but the paramedic offers to check them out. They do an examination, perhaps take a BP and pulse and put a bandage on the cut and say ‘You’re OK, no need to go to hospital, we’ll leave you to it’. That person later receives a bill for Emergency attendance fees – no transport $481.00’ (see http://www.ambulance.vic.gov.au/About-Us/Fees.html). In this scenario, they didn’t ring for an ambulance or even ask for the service, but a paramedic was on scene, offered to check them out. Most people would feel some moral pressure to accept what appears to be an offer of concern from a uniformed member of Australia’s most trusted profession. But they may take a different view if they were told ‘Do you want me to check you out, but it will cost $481 if I do?’

Ethically one would have to say there is an obligation to warn a person that the service they are about to engage attracts a fee but there are no doubt difficulties with that. One would not want to discourage a person from receiving care that they actually needed just because they couldn’t afford to pay for it, and one would hope that an ambulance service would not pursue recovery from a truly indigent person who needed their services. Equally there are problems with asking the call taker to advise the caller of ambulance fees, the caller may not be the person who needs the service and one would not want to discourage people calling an ambulance when they need it or when someone else needs it.

Legally, it is unlikely that the Australian Consumer Law would apply. An ambulance service I would suggest, is not engaged in trade or commerce (but see ‘United Firefighters Union of Australia (‘UFU’) v Country Fire Authority (‘CFA’) [2014] FCA 17 (31 January 2014) and the discussion on why the CFA was found to be engaging in ‘trade’ when providing road crash services; it’s certainly not impossible that they are engaged in trade and commerce) and the right to payment is not because of any alleged contract but because of an operation of law. If we limit our discussion to Victoria then the Secretary of the Department of Health may set fees that an ambulance service may charge (Ambulance Services Act 1986 (Vic) s 10(5)) and the ambulance service must comply with the Secretary’s direction (s 10(6)). An ambulance service (remembering Ambulance Service Victoria is a umbrella title covering a number of separate ambulance services; ss 3 and 23, Schedule 1) may charge reasonable fees for the provision of its services (s 16) and by implication what is a reasonable fee is a fee that complies with the Secretary’s direction under s 10.  So this is not an issue of contract (and therefore the provision regarding an unfair contract term can’t apply) and the fee is charged because the Act says it may, or even given s 10(6), must be charged.

Although I don’t think the Consumer Law would apply, given the amount involved will be relatively small  and well within the jurisdiction of a small claims court or tribunal, I’d suggest to someone seeking advice in the circumstances I’ve described above, that they may like to go before the relevant tribunal (in Canberra that would be the Australian Capital Territory Civil and Administrative Tribunal) and seek an order to the effect the imposition of the fee is ‘unfair’ and should not be enforced. These small tribunals are relatively cheap, act with informality and try to do justice between the parties rather than focus on the letter of the law; a tribunal member may well be attracted to the idea that the fee is unfair and could with some imagination I’m sure, find that they had jurisdiction and authority to refuse to enforce the debt even if an appeal court might say that this was not a correct application of the law.   On the other hand, if the person had been in a life threatening situation and the paramedics saved their life, I don’t think any tribunal member would be attracted to the argument that there was any unfairness, particularly if because of the patient’s condition the paramedics couldn’t explain there was a fee even if they wanted to, and no doubt would have provided the service in any event rather than leave the poor patient to die.   In those circumstances, if the person really couldn’t pay one would try to negotiate with the ambulance service to reduce or waive the fee, or accept payment by instalments.  If the patient had the means to pay but simply didn’t want to then I think Ray Hadley’s approach, above, is probably appropriate.

In Hamcor Pty Ltd & Anor v State of Qld & Ors [2014] QSC 224 (Dalton J) the State of Queensland was sued over the response by Queensland Fire and Rescue (as it was) to a factory fire in August 2005. .

The Facts

A fire broke out at the plaintiff’s chemical factory just after 10pm on 25 August 2005.  The Queensland Fire and Rescue Service (QFRS) responded promptly.  The response, the subject of the litigation, was that the QFRS poured a very large quantity of water onto the fire.  This water mixed with the chemicals and ran off the property causing a hazardous materials incident.  Much of the water soaked into the land with the effect that the land became dangerously contaminated.  The plaintiff was required to clear up the contamination, a clean-up that cost in excess of $9 million, much more than the land was worth.

The plaintiffs’ complaint (at [3]) was that:

…  it was negligent to attempt to extinguish this fire with water: chemical fires cannot be extinguished with water. It was said by the plaintiffs that the proper approach to the fire on this site was to simply let it burn itself out whilst being vigilant to extinguish any spread of the fire outside the site. It is pleaded, that without the vast quantities of water applied in an attempt to extinguish the fire, the cost of remediation of the land would have been far less than it is.

It was argued that instead of water, the QFRS should have used foam to try and control the fire.  The judge (at [44]) said that she was:

… satisfied that the need for foam was recognised … as early as it reasonably could have been. Further, I find that there was no chance of transporting a sufficient quantity of foam to the site in time to use it in this window of opportunity… Further, I am satisfied … that there was no point in trying to extinguish the fire with foam after about 10.35 or 10.40 pm. By this time the Northern building was well alight, the blaze was of such a size that it was most unlikely that enough foam could have been obtained to use it effectively. As well, it was impossible by that stage to use foam. For foam to be effective in extinguishing a fire, it must be applied to the seat of the fire, and it was not safe to go close enough to this fire to do so.

Water was also going to be ineffective.  ‘It was the unanimous expert opinion that there was no point in applying water to extinguish the fire’ ([66]).   Although water was not going to extinguish a fire this hot and fuelled by chemicals, it was reasonable to use water to protect a large LPG tank, solvent tank, and unaffected office building to prevent them being involved in the fire.   Even so, the Incident Controller who was in charge from 11pm to 8am the next day, arranged for ‘massive quantities of water’ to be ‘applied on and around the fire’ ([2]). The IC could not explain his reasons for applying water or the objective he was trying to achieve.   The Court found (at [73]):

There was no such specific aim or objective here, other than a general, and I find misplaced, view that water applied in high volume to buildings which were well alight would somehow cool and limit the fire.

The reasonable and really only practical response was to protect the surrounding structures, which they did, and otherwise allow the fire to burn itself out.   Despite the amount of water that poured onto the fire, that is in effect what happened: ‘One of the things the conference of experts agreed upon was that the fire reached a point of control, but it was not … brought under control’ ([87]).

The Court found, therefore that the response, of pouring massive amounts of water onto the fire, was not a reasonable response to the fire, but that of course, is not the end of the matter.  As is well known, to establish negligence the plaintiff has to establish that the defendant

1. Owed the defendant a duty of care;
2. That the defendants actions (or omissions) were not reasonable in the circumstances and
3. That failure caused the plaintiff’s losses.

The judge’s findings of facts (discussed above) established only point 2, above, ie the response was not ‘reasonable’ in the circumstances.  We can now turn to the areas of interest to this blog, the judges’ rulings on the law.

Duty of care

I have discussed before that the general line of authority suggests that the fire services do not owe a duty of care to individuals due to their broader obligations to the community (see for example, ‘Further discussion on the fire brigades ‘duty of care’’ (15 August 2012)).  The starting point for this argument has been Capital and Counties v Hampshire Council [1997] QB 2004 where the UK Court of Appeal said:

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

In this case Dalton J rejected the principal from Capital and Counties.  She relied on the decision of the High Court of Australia in Ardouin v Board of Fire Commissioners (NSW) (1963-1964) 109 CLR 105.  This case involved an accident between a motorcycle and a fire appliance proceeding on the way to a fire.  The gist of the case was that the ‘good faith’ protection clause did not apply when driving a vehicle on the road as that was not exercising any special power.  On its face that would seem to have no application here but Her Honour noted (at [134]) that during the course of their judgment Justices Kitto and Taylor

… made quite lengthy and considered observations which expressly, and by necessary implication, state that a fire brigade is under a common law duty to those whose interests it might harm when exercising its fire-fighting functions.

Further a clause like s 46 of the Fire Brigades Act 1909 (NSW) (see now Fire Brigades Act 1989 (NSW) s 78 or Fire and Emergency Services Act 1990 (Qld) s 153B) which say that a person or brigade is not liable for acts done in good faith can only have application if they would otherwise be liable, and they would only be liable if there was a duty of care owed.   Dalton J was able to point a Scottish case (Burnett v Grampian Fire and Rescue Service [2007] S.L.T. 61) that had come to a different conclusion to the English court in Capital and Counties and she went through a detailed analysis of the reasoning in Capital and Counties (which I won’t try to summarise) to reach the conclusion that she should not accept Capital and Counties as representing the law in Australia.

Dalton J went on to say that even if Capital and Counties did reflect the law in Australia, this case came within that part of the decision, that if the brigade had not turned up and just let the building burn (given they were always going to be a total loss) the plaintiff would have been better off.  Either way the plaintiff was going to lose the factory, because of the brigades’ actions not only was the factory lost but the land was contaminated and rendered unusable until $9 million worth of remediation action was carried out.

Given that, in his view, Capital and Counties does not represent the law in Australia, Dalton J had to consider whether she should find a duty of care.  She said that she would because:

• The damage to the plaintiff’s property was foreseeable and in fact QFRS were clearly aware of the risk and did take action to try to contain the water run off and did seek scientific advice on the contamination ([168]); and
• Although the QFRS were not in control of the fire they were in control of the response , that is the situation was one ‘where the QFRS had control, responsibility and expertise, and the plaintiffs were reliant or dependent on that’ ([173]).

Accordingly Dalton J came to the conclusion that:

… the first defendant [the State of Queensland on behalf of QFRS] owed a duty to the plaintiffs to take reasonable care not to damage their property when acting to combat a fire and hazardous materials emergency on the plaintiffs’ land.

Breach

As noted above, Dalton J was of the view that QFRS breached its duty of care to the plaintiff.  She said (at [182]):

 In my view the QFRS breached its duty to the plaintiffs in applying large amounts of water to areas of the plaintiffs’ land other than the LPG cylinders and solvent tank, and other than the firewall and drums under, and in front of, the awning.

Damage

The next step was to determine of the negligence of the QFRS caused the plaintiffs damage.  This was complex as not all of the actions of the QFRS were unreasonable.  In particular spraying water onto the LPG and Solvent tanks and the office was reasonable.  Had the QFRS acted ‘reasonably’ there would have been water in the area with resultant contamination, how much worse it was the judge could not determine.  There was also issues about the factory itself and the precautions that were, or were not, in place to capture water and chemicals that may have run off in any event.

The judge was critical of the evidence led to establish the damage that occurred, but would not have occurred, had the QFRS response been ‘reasonable’ and she made no finding on how much the State would be liable for had the plaintiffs won.

A verdict for the defendant

The judge did not fully address the issue of damage as she did not need to because, even though she found that the QFRS did owe a duty of care and their response did not meet the legal test of ‘reasonableness’ she found there was no liability – why not?

Civil Liability Act 2003 (Qld) s 36.

This section says:

(1) This section applies to a proceeding that is based on an alleged wrongful exercise of or failure to exercise a function of a public or other authority.

(2) For the purposes of the proceeding, an act or omission of the authority does not constitute a wrongful exercise or failure unless the act or omission was in the circumstances so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.

(This section is similar to the Civil Liability Act 2002 (NSW) s 43, to which I will return in the discussion, below).

The QFRS argued that the decision to douse the area with water was not ‘so unreasonable that no [fire fighting authority] could properly consider the act or omission to be a reasonable exercise of its functions’ and as such they were protected by s 36. Dalton J rejected that as she said s 36 did not apply.  If it did apply it would have been a defence as, apart from the Incident Controller, there were many senior fire fighters at the scene.  Had the decision of the IC been so unreasonable that no other firefighter would think it was a reasonable action, they would have raised that, and they did not.  Accordingly, although the decision was ‘negligent’ it did not reach the ‘gross negligence’ threshold required to take it outside s 36 (see [211]).

So why did s 36 not apply?  This was because, in Dalton J’s opinion, the section only applied where the allegation was a breach of statutory duty, that is where is it alleged that a statute, like the Fire and Emergency Services Act 1990 (Qld) required the service to do, or not do, something and the alleged fault lay in failing to comply with that statutory obligation.   Her Honour’s reasoning is technical and depends on a distinction that perhaps only lawyers can see between a breach of a common law duty and a statutory duty; but s 36 is headed ‘Proceedings against public or other authorities based on breach of statutory duty’ and the proceeding in this case did not depend upon some statutory obligation to take action but a common law action based on the close relationship between the plaintiff and defendant, that is when:

… the QFRS attended the plaintiffs’ land and began exercising its statutory powers to protect against fire and hazardous materials emergency there was sufficient closeness and directness in the relationship between it and the plaintiffs, as owners of the property which was on fire and which was the source of, and vulnerable to, the hazardous materials in question, to establish a common law duty …

It was failure to meet the standard required by the common law duty, not because of an obligation said to arise in the statute, that was the basis of the cause of action and so s 36 did not apply.  If, however, s 36 was relevant then it would have provided a defence (see [197]).

Fire and Rescue Service Act 1990 (Qld) s 129.

This was the defence that worked.  This section said:

 No matter or thing done or omitted to be done by any person pursuant to this Act or bona fide and without negligence for the purposes of this Act subjects that person to any liability

Dalton J agreed that section had two tests.  It should be read as:

• No matter or thing done or omitted to be done by any person pursuant to this Act subjects that person to any liability; and
• No matter or thing done or omitted to be done by any person bona fide and without negligence for the purposes of this Act subjects that person to any liability. (See [212]-[214]).

The court found that the State of Queensland is a legal ‘person’ so the section could apply ([224]).  A critical issue was whether the relevant actions of the QFRS were done ‘pursuant’ to the Act or ‘for the purposes of the Act’.  If they were acting ‘for the purposes of the Act’ then s 129 would provide no defence as the acts, although bona fide, they were negligent.

Her Honour found however that the actions of the QFRS were done pursuant to the Act that is the fire fighters were exercising their powers under s 53 of the Act that sets out the powers of an authorised officer in a dangerous situation.  Although the section does not say an authorised officer may put water on a fire, it does say the officer ‘may take any reasonable measure— (a) to protect persons, property or the environment from danger…’   The plaintiff argued that the finding that the actions of the IC were not reasonable meant that he was not acting pursuant to s 53 which only allowed ‘reasonable action’.   With some complex reasoning, Her Honour found that the use of the word ‘reasonable’ in s 53 had a different meaning to the use of the word in negligence law.  Here the word related to action by ‘authority to act of the executive arm of government. The executive has authority to act so long as it does not act unreasonably’ in the way the term is applied in the Civil Liability Act that is in a way that is so unreasonable that no one would consider it a legitimate exercise of their power.

In summary in deciding what action to take under s 53 the QFRS had a broad discretion and provide their action was not grossly negligent, then it was ‘reasonable’ for the purposes of that Act, even if it did not meet the common law meaning of the word.

The application of water by the QFRS in this case was something for which it needed the authority of s 53(1) of the FRS Act. Water was applied in enormous volumes and at a spectacular rate because the QFRS was able to access the fire hydrants and water mains in a way which no ordinary citizen could do. In applying water as it did, the QFRS was using its special statutory powers to deal with an emergency. This application of water was something which of its nature involved large-scale interference with property of others. In my view, the application of water by the QFRS was something done pursuant to the FRS Act …

and so s 129 provided a defence and defeated the plaintiff’s claims.

Conclusion on Hamcor Pty Ltd & Anor v State of Qld & Ors [2014] QSC 224 (Dalton J)

That ends a summary of the decision in that case.  In short the court found that

1. There was a duty of care;
2. The response by QFRS was not a reasonable response; but
3. There was no liability because of the defence offered by the Fire and Rescue Service Act 1990 (Qld) s 129 as it then was.

If you are simply interested in the result in this case you can stop reading here; but what follows is further discussion on legal issues that arise from the decision.

Discussion on legal and ancillary issues

The status of Capital and Counties v Hampshire Council [1997] QB 2004

As discussed above, the English decision in Capital and Counties v Hampshire Council (‘Capital and Counties’) held that fire brigades do not owe a common law duty of care to those that may request their assistance.  This is an English case and therefore not ‘binding’ on the Australian courts, but is it the law?  We now have one case, Warragamba Winery v NSW where a court agreed that there was no duty of care; and two, Electro Optics and West v NSW and now Hamcor v Queensland where the courts have found that there was a duty of care.  Do fire brigades owe a duty of care to those that call for their assistance?

In Warragamba Winery v NSW [2012] NSWSC 701 Walmsley AJ in the NSW Supreme Court found that the NSW Rural Fire Service did not owe a duty of care to 15 landowners whose properties were destroyed by bushfire on Christmas day 2001.  Walmsley AJ relied on the reasoning of McHugh J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 (a matter to which I will return); but he also found the reasoning in Capital and Counties ‘persuasive’ (at [714]).

In Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at [93] McHugh J  said that when deciding whether a statutory authority, like a fire brigade, owed a duty of care, the court should ask the following six questions:

1. Was it reasonably foreseeable that an act or omission of the defendant … would result in injury to the plaintiff …?…
2. … did the defendant have the power to protect … the plaintiff (rather than the public at large) from a risk of harm? …
3. Was the plaintiff … vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself …? …
4. Did the defendant know, or ought … to have known, of the risk of harm to the … plaintiff … ? …
5. Would such a duty impose liability with respect to the defendant’s exercise of “core policy-making” or “quasi-legislative” functions? …
6. Are there any other supervening reasons in policy to deny the existence of a duty of care (e.g., the imposition of a duty is inconsistent with the statutory scheme … ? …

If the answers to questions 1-4 are ‘yes’ and the answers to questions 5 and 6 are ‘no’ then one should find that there is a duty of care.  Walmsley AJ agreed that failure by the RFS to fight the fire or warn the resident could result in injury but the plaintiffs were not vulnerable as they could take steps to prepare their properties for fire and there were other ‘supervening reasons’ not to impose a duty in particular the services obligations to the entire state.

(I should also say that Walmsley AJ also took comfort from the fact (at [727]) that ‘There is also academic writing showing no liability such as urged here has been held: Eburn: Emergency Law, 2nd ed (2005) Federation Press, Chapter 6 “Liability of Emergency Services”; Booth and Squires: The Negligence Liability of Public Authorities (2006) Oxford University Press, Chapters 10 and 12; Stewart and Stuhmcke: Australian Principles of Tort Law, 3rd ed (2012), Federation Press, 8.6.’)

In Electro Optics and West v NSW [2012] ACTSC 184, the litigation arising out of the 2003 Canberra Fires, Higgins CJ (Chief Justice of the ACT Supreme Court) was not so persuaded.  He said

Indeed, in my view, the case of Capital & Counties plc v Hampshire County Council and the general view that police and fire services owe no duty to respond to persons in danger where they are trained and able safely to respond is clearly inconsistent with public expectations and the intent shown by the legislative provisions imposing positive duties on such services to protect the public [334].

His Honour did not explain how ‘public expectations’ are determined or how they form the basis of a legal conclusion nor does he indicate which ‘legislative provisions’ he’s relying on as imposing a positive duty to act.

Where does that leave us?  These are all decisions of single judges hearing the initial trial.  These do not represent binding legal precedent, but we have a case where a judge of the NSW Supreme Court found Capital and Counties persuasive but did not actually rely upon it to come to his conclusion that there was no duty of care; a judge of the ACT Supreme Court rejected Capital and Counties but did not but did not fully explain his reasons; and a judge of the Queensland Supreme Court also rejected the principal of Capital and Counties (that the brigade owed no duty of care) but if Capital and Counties did apply this fell within the rule that there is a duty not to make the matter worse, so he didn’t actually have to decide the point. The result is that the status of Capital and Counties, and the question of whether or not a fire brigade owes a duty of care, is unresolved.

The problem with tort law is that it is so fact specific.   It’s easy to think that where a service like the NSW Rural Fire Service is faced with fires across the state, limited resources and many communities at risk (as in Warragamba Winery) that they can’t be held to owe a duty to particular individuals who are not, at the time decisions are being made, actually under direct threat of fire.  Equally it does seem anomalous to think that a brigade that is at the scene of a large, but contained fire (ie not multiple fires across a large area) and where the person ‘at risk’ is clearly identifiable as the occupier of that property, does not owe a duty to act reasonably in trying to contain the fire at least so as not to make the situation worse.   The question of whether or not there is a duty of care cannot be answered in the abstract, it depends very much on the particular facts, who was doing what and who could protect whom.   The Courts in Australia have said that determining whether or not here is a duty of care requires a consideration of all the ‘salient features’ of the relationship between the parties and in summarising the case law, Allsop P in the NSW Court of Appeal identified a list of salient features that went from (a) to (q), ie 17 different factors that may or may not apply in any particular case (see Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258, [102]-[104] (Allsop P)).

In short if you want to know whether a duty of care is owed in a particular case you have to consider those 17 factors (but perhaps not all of them, and perhaps others, depending on the particular facts) and then the court has to decide whether in all the circumstances they should impose a duty of care.  It means it is impossible to know, in advance, whether or not a duty of care is owed in new or novel cases such as Hamcor.

Perhaps none of it matters as Dalton J said and the real issue is not whether a duty was owed but whether or not the defendant’s actions were reasonable in the circumstances.  Walmsley AJ in Warragamba Winery found that the actions of the NSW RFS were reasonable so even if there was a duty of care; there could be no liability.   Higgins CJ (Electro Optics and West v NSW) and Dalton J (Hamcor v Queensland), on the other hand, found that the conduct of the brigades did not meet the common law standard of ‘reasonable care’ so but for other defences there would have been liability.

Personal liability

Firefighters and others often express concern about the risk of personal liability.   All the cases involving fire brigades have involved the State except for the Tasmanian case of Myer v State Fire Commission [2012] TASSC 54 where because of the structure of the Commission, it was the Commission rather than the State of Tasmania that was sued.  But in no case has it ever been suggested that an individual fire fighter could or would be liable for their actions.   Everyone should take comfort from that.

Statutory immunity

All fire and emergency service legislation has some provision that protects workers and, depending on the language, the service from liability for acts done in good faith.  In:

• Warragamba Winery, Walmsley AJ said that if he had found that there had been negligence, s 128 of the Rural Fires Act 1997 (NSW) would have provided a defence.
• Myer v State Fire Commission, Blow J did not consider whether there was a duty of care or whether the conduct of the fire service was reasonable or not. He determined that even if negligence was established, s 121 of the Fire Service Act 1979 (Tas) would provide a defence.
• Electro Optics and West v NSW Higgins CJ found that the Civil Liability Act 2002 (NSW) provided the relevant defence, but if it did not, s 128 of the Rural Fires Act 1997 (NSW) would have provided a defence; and
• Hamcor v Queensland s 129 of the Queensland Fire and Rescue Service Act 1990 (Qld) provided the relevant defence.

These sections have proved quite effective in protecting the fire services and the state from liability for the actions of their fire service; but a word of warning for Queenslanders…

Section 129 said

No matter or thing done or omitted to be done by any person pursuant to this Act or bona fide and without negligence for the purposes of this Act subjects that person to any liability

The Court had to split that section because a section that says there is no liability for an action that is ‘bona fide and without negligence’ is pointless.  Of course there is no liability if the Act is done without negligence.

The Fire and Rescue Service Act has recently been amended and it is now the Fire and Emergency Services Act 1990 (Qld).  Section 153B(1) says ‘No liability attaches to any person for an act done, or omission made, honestly and without negligence under chapter 3.’  If that had been the Act in 2005 it would not have provided a defence as the court found the action of Queensland, through the fire service, were negligent.  I have previously written on the Queensland liability protection provisions.  Although it worked in Hamcor, the reference to ‘without negligence’ at least makes them confusing, at worst makes them a pointless waste of time (see ‘A further review of the Malone Inquiry into the Queensland Rural Fire Brigades’ (11 June 2013)).

Civil Liability Act 2003 (Qld) s 36; Civil Liability Act 2002 (NSW) s 43.

In Hamcor Dalton J found that s 36 of the above Act did not provide a defence, but in Electro Optics and West v NSW it was the New South Wales equivalent that, according to Higgins CJ provided the defence.   The sections are not exactly the same, but in my commentary on Electro Optics, and the fact that that decision is now the subject of an appeal to the ACT Court of Appeal I said

One could appeal on the basis that s 43 only applies to duties imposed by statute but liability here depends upon duties imposed by the common law, but I would not put much faith in that issue.

Higgins CJ didn’t identify exactly what statutory authority he found the National Parks service was relying on when it made the decisions that he thought were negligent.  In light of Dalton’s rulings the argument that s 43 should not have been applied in the Canberra case is now stronger than I originally thought.

Compliance with rules and procedures including AIIMS

I hear comments that suggest a belief that if one complies with prescribed rules there can be no liability but equally, if you don’t, you will be liable.  That is not the case and Hamcor demonstrated that courts are much more concerned with substance over form.

The plaintiffs alleged that the QFRS were negligent when applying water in part because a HAZCHEM sign on the front gate indicated the code 3XE and, apparently, the ‘3’ indicated that the appropriate firefighting response was to use foam not water.

Further there was a HAZMAT box that contained more details of what was stored on the site and how to deal with it.  The QFRS never accessed that box.  The Court found nothing turned on this.  The various sources would have provided no more information than the Brigade already had or obtained from other sources.  Further the material in the HAZMAT box was out of date but equally nothing turned on that.

More interesting was the judge’s comments on the Australian Inter-Agency Incident Management System (AIIMS).   The IC applied the AIIMS principles but, said the judge (at [103]):

Many of the witnesses gave evidence in relation to their understanding of what this scheme, or similar schemes, or sub-schemes provide. There were aspects of nearly all these witnesses’ evidence which struck me as a bureaucratic response: overly focussed on formal requirements in disregard of practicalities and commonsense.

One alleged failure was there was no written Incident Action Plan.  Dalton J (at [105]) said:

To some extent the criticism that there was no written plan seems a little bureaucratic and unfortunately received an answer which also seemed a little bureaucratic – that there was a written plan – it was written on a whiteboard, – the implication was there could be no basis for criticism – the guidelines had been complied with, there was a written plan.

The point from my perspective is whether or not there was proper consideration of the objectives which the QFRS had in fighting the fire and consideration of whether the means employed would in fact achieve those objectives. Whether this is in writing or not seems to me a little beside the point.

Courts are not really concerned with ‘check box’ compliance but with what actually happens.  Of course a written plan can be very helpful for communicating to others and to give evidence of the commander’s intent, if there is any relevant intent, but compliance with form for compliance’s sake is hardly ever relevant or determines the legal issues.

Conclusion

This has been a very long post.  The short outcome is that this case gets added to the list.  We now know of the following cases where the fire services have been sued for their negligent response to a fire:

1. Gardner v Northern Territory [2004] NTCA 14;
2. Warragamba Winery Pty Ltd v State of New South Wales [2012] NSWSC 701;
3. Myer Stores v State Fire Commissioner (Tasmania) [2012] TASSC 54;
4. Electro Optic Systems Pty Ltd v The State of New South Wales; West & West v The State of New South Wales [2012] ACTSC 184; and
5. Hamcor Pty Ltd & Anor v State of Qld & Ors [2014] QSC 224.

In all of the cases the defendants have won.  In Gardner and Warragamba because there was no negligence, everything the services did was reasonable in the circumstances, in Electro Optics and Hamcor because even though there was negligence, the Parliament had altered the law so that services were not liable as their actions did not constitute ‘gross negligence’ and in Myer the issue of negligence was not decided because whether there was negligence or not, the statutory defence would apply.

The issue however, of if and when a fire brigade owes a duty of care remains unclear and must be determined on a case by case basis.  We know that Electro Optics is on appeal to the ACT Court of Appeal and it may be that the decision of that court, which must be due shortly as the case has been heard, will help give some clarity to the law.

I have previously reported that the Health Practitioner Regulation National Law (South Australia) (Protection of Title—Paramedics) Amendment Bill 2013 (SA) (29 October 2013).  That Bill passed through the legislative process on 21 November 2013 and came into effect on 1 September 2014 (see The South Australian Government Gazette, 14 August 2014, p 4027).

The Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) Schedule 2, s 120A(1)(a) says that a person ‘must not knowingly or recklessly (a) take or use the title of “paramedic” …’ unless they hold the qualifications set out in clause 11A of the Health Practitioner Regulation National Law (South Australia) Regulations 2010.   The prescribed qualifications include a degree in paramedicine from an Australian or New Zealand university, various diplomas or qualifications leading to registration as a paramedic in the United Kingdom, South Africa, or Ireland.

Section 120A(1)(b) (when read with s 120A(2), the definition of ‘paramedic’) says that a person must not:

… take or use a title, name, word or description that, having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate the person is a health professional who provides emergency medical assessment, treatment and care in the pre-hospital, or out-of-hospital, environment.

The Minister may approve other qualifications for the purposes of the regulation (cl 11A(1)(g)) or may grant an exemption from the requirement to hold a prescribed qualification (s 120A(4)).  The Minister has in fact granted some exemptions and these appear in The South Australian Government Gazette, 7 August 2014, p 3957-3958).    Strangely enough, there are two, separate exemptions, the first says:

I, JACK SNELLING, Minister for Health, in accordance with Clause 120A (4) of Schedule 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010, exempt the following classes of persons from the requirement to hold a prescribed qualification to practise as a paramedic in South Australia:

It then lists various categories of people, student paramedics, a paramedic employed by SA Ambulance but who does not hold the prescribed qualifications but has relevant and recent experience, a person employed as a paramedic by an ambulance service ‘which has entered a Memorandum of Understanding with, or is otherwise authorised by, SA Health or SA Ambulance Service Inc. in relation to the provision of emergency medical assessment, treatment and care in South Australia’ or a person assisting during a public health or other declared emergency.

The second exemption begins

I, JACK SNELLING, Minister for Health, in accordance with Clause 120A (4) of Schedule 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010 exempt the following classes of persons from Clause 120A (1):

That exemption applies to ‘a person employed as a paramedical aide by a domiciliary care service provided by Country Health SA Local Health Network or the Department for Communities and Social Inclusion.’  So those ‘paramedical aides’ can call themselves a paramedic, no problem.

The problem is with the first exemption where the Minister purports to rely on s 120A(4) to ‘exempt the following classes of persons from the requirement to hold a prescribed qualification to practise as a paramedic in South Australia’.

Sect 120A(4) says

(4) The Minister may, by notice in the Gazette, confer exemptions from this section—

(a) on a specified person or specified classes of persons; or

(b) in specified circumstances or specified classes of circumstances.

There is, however, nothing in section 120A that says you need these qualifications to practice as a paramedic, only that you need them to take the title ‘paramedic’. The first exemption issued by the Minister simply makes no sense when read in context with the Act.  The inference has to be that he intends to allow those people to use the title ‘paramedic’ but that it is not what the exemption says.

The matter is further complicated by the SA Health.  A colleague from St John Ambulance (ACT) has drawn to my attention their web site where they explain the effect of the new law.  They say

The Act will only apply to those persons practising as paramedics in South Australia.

It will not apply to persons employed as first aid officers, ambulance officers or St John Volunteers.

That the Act will only apply in South Australia is axiomatic.  The South Australian parliament can’t make laws for other states so of course one can be called a paramedic in Victoria without meeting the South Australian requirements.

The statement that the Act ‘will not apply to persons employed as first aid officers, ambulance officers or St John Volunteers’ again makes no sense.  There is nothing in the Act, its regulation or the various exemptions that says that this is the case.  The best that can be inferred is that the Department believes that taking the title ‘first aid officer’ or ‘ambulance officer’, or wearing a uniform that says ‘St John Ambulance’ would not indicate, nor could it reasonably be understood to indicate that the person is a ‘paramedic’ and so there is no breach of s 120A(1)(b).  There is nothing in the Act, the Regulations that would allow any of those people to call themselves a paramedic unless they also fell within the various exemptions discussed above.

This is not the first time where it has appeared that Ministers in the South Australian government have not read or understood the law they appear to be administering – see ‘Compensation for South Australian SES volunteers’ (6 August 2012) (but see also ‘Changed compensation rules for SES and Marine Rescue volunteers in South Australia’ (23 March 2013)).  It’s one thing on the floor of Parliament but here presumably the Minister had the advice of the Department and of Parliamentary Counsel so why the exemption is stated to be an exemption ‘from the requirement to hold a prescribed qualification to practise as a paramedic in South Australia’ when that is not the language of the Act is not at all clear.  It appears to be very poor drafting or a belief that the Act as passed does more than protect the ‘title’ of paramedic, but it doesn’t.

This question comes from a Victorian paramedic

Relating to the use of Patient restraints/Seatbelts (for Safety purposes, not relating to Mental health issues….), is there an obligation for Paramedics to insist on the use of Seatbelts by a Patient being Transported? Is there an onus on the Driver, if a Patient or Child is not appropriately restrained? It is my understanding that the driver of a vehicle is liable for the seatbelt wearing (or lack thereof) of ANY passenger (regardless of age) unless the vehicle is a bus with more than 12 seats. Whilst my employer has a policy to utilise the provided seatbelts as fitted to the Ambulance Stretcher (or the approved Paediatric Harness that can be fitted), this is not The Law. There is a seeming reluctance to utilise the approved harness’ (both adult and paediatric), but as I understand it, there is no specific exemption applying to Ambulance Services (and specifically Paramedics) from the requirement to wear Seatbelt.

Would there be a liability for the driver if a Passenger (Colleague) or patient were not restrained?

The general rule is, of course, that everyone has to wear a seat belt or, in the case of small children, in a child restraint. Where the passenger is 16 or older, the obligation is on both the passenger and the driver; if the passenger is under 16, the obligation is upon the driver (Road Safety Road Rules 2009 (Vic) rr 265 and 266).

There are, however, many exemptions to these rules, for example it is no offence not to wear a seat belt if the car is, lawfully, not fitted with a seatbelt (r 267(1A)). For the purposes of the emergency services, rules 267(5) and (6) says:

(5) A person is exempt from wearing a seatbelt if—
(a) the person is a passenger in or on a police vehicle, emergency vehicle or enforcement 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.
(6) A person is exempt from wearing a seatbelt if he or she is providing or receiving medical treatment of an urgent and necessary nature while in or on a vehicle.

“Emergency vehicle” includes an ambulance.

It follows that a passenger in the front passenger seat of an ambulance (eg the relative of the patient) would be expected to wear a seatbelt if we assume that they could be sitting in the back. If the front seat is the only seat available they wouldn’t need to wear a seatbelt but of course it would be prudent to require them to do so.

As for the patient, then they are exempt if they are ‘receiving medical treatment of an urgent and necessary nature’, as is the treating paramedics. I don’t imagine any court or police officer would quibble with the suggestion that a person being transported on an ambulance stretcher meets this requirement even if the reality is that their treatment is not ‘urgent’. The mere fact that their condition is such that they are being transported in an ambulance would I’m sure be sufficient.

That doesn’t mean one shouldn’t wear a seatbelt, only that there is no offence committed if the seat belt is not worn. In the event of an accident a person would seek compensation under the Accident Compensation Act 1985 (Vic). A claim for compensation can be reduced due to contributory negligent (Wrongs Act 1958 (Vic) s 26). If a person has available to them a seat belt that they chose not to wear, that may reduce any claim for compensation, in fact in New South Wales fail to wear a seat belt, contrary to the regulations, is specifically considered contributory negligence (Motor Accidents Act 1988 (NSW) s 74(2)(c)). If the regulations do not require the seat belt to be worn (as discussed above) then the automatic deduction won’t apply but that does not mean a court could not find that a person did contribute to their injuries if they didn’t wear an available seat belt and there was no good reason not to.

Conclusions
1. It is true that the driver is required to ensure that all passengers who are required to wear a seat belt are wearing a seat belt. If the passenger is aged 16 or over, the passenger also commits an offence if they don’t wear a seat belt.

2. There is in fact specific exemptions applying to Ambulance Services regarding the requirement to wear Seatbelt. A passenger need not wear a seat belt in an ambulance provided they are not in the front passenger seat unless there are no other seats available. Both the patient, and the paramedic providing ‘urgent and necessary’ medical are not required to wear a seat belt.

I’ve received a request for information from a member of a Queensland rural fire brigade.  The details came in a letter that is somewhat too long, and too technical, to put here in full, so I’ll summarise the issue as I understand it.  I’m sure my correspondent will get back to me if I’ve misunderstood anything.

The gist of the issue is that this brigade want to use a ‘Remote Piloted Aerial System’ (colloquially, a drone) to get fire ground information.  The drone weighs less than 2kg and meets the Civil Aviation Safety Authority’s definition of a ‘small’ drone.   The QFES Commissioner has issued a standing order (‘Engagement and Operation of RPA or UAVs in Support of Emergency Operations’, Document number SO-Q-OM-4.28, 1 August 2014) that is directed to QFES, the SES and Rural Fire Service Queensland, to the effect that drone’s can’t be used anywhere on the fire ground without extensive approval from the IC up to the State Air Desk and operators have to comply with requirements to have a ‘UAV Controller’s certificate’ which I’m told costs $160 to obtain. I’m told they would also need an Operators Certificate and a Pilot’s certificate and that would add a further $9800 to the costs.

On the other hand, the operator of a small drone that is used for sport or recreation is effectively unregulated.  The QFES standing order says that in their view the use of a drone on a fire ground does not meet that requirement and so the various licences and certificates are required.

My correspondent asks ‘can QFES usurp CASA’s federal role of controlling all airspace in Queensland’ and as members of a rural fire brigade they are not part of QFES (see Status of Queensland Rural Fire Brigades, September 10, 2014) so are they bound by the standing order?

First let me say that the CASA regulations are complex and area of expert knowledge which I don’t have so I can’t go and verify all the various requirements. I will assume that it is correct that an operator would require ‘an Operators Certificate ($4600) a Controllers Certificate ($160?) and a Pilots Certificate ($5200)’ (but see RPAS Training and Solutions ‘CASR 101 – Are you flying your UAV legally?’ accessed 12 September 2014).

Second the regulation of airspace is a matter of federal law, so the Civil Aviation Act 1988 and its regulations are Commonwealth, not state law.  Where a state law is inconsistent with a valid Commonwealth law, the Commonwealth law prevails (Australian Constitution s 109).  In short the Civil Aviation Safety Regulation ‘trumps’ the Queensland Fire and Emergency Services Act.   QFES can impose obligations upon its members and those operating near a fire ground above the CASA requirements, but it cannot relax or waive the CASA requirements.

Rule 101.235 of the Civil Aviation Safety Regulations 1998 (Cth) applies to ‘the operation of a large UAV; and the operation of a small UAV for purposes other than sport or recreation.’  As my correspondent says

Unfortunately again, there was no distinction made for the middle ground between operating for ‘sport or recreation’ and ‘commercial’. That middle ground is occupied by the service sector where probably the best public use can be made with RPAS in emergency services such as SES, Rural Fire etc.

It’s true; the rules provide for only two cases, a UAV used ‘for sport or recreation’ and all other uses.   Either the UAV is being use for ‘sport or recreation’ or it is not.  I think there can be no doubt that the use of a UAV by a fire brigade in order to obtain fire ground intelligence is not use for ‘sport or recreation’ and so all the CASA rules must apply.

Can QFES limit the use of UAV’s on the fire ground?  The answer has to be ‘yes’.  Section 83 of the Fire and Emergency Services Act 1990 (Qld) relates to the powers of the first officer and other rural fire officers at the scene of a fire. It says, at subsection 4,  ‘Any person exercising a power or discharging a function under this section must comply with any code of practice and with any direction of the commissioner’.     I have no doubt that a standing order directed to QFES, Queensland SES and ‘Rural Fire Service Queensland’ is such a direction.  Further, the Commissioner and an authorised fire officer ‘may take any reasonable measure— to protect persons, property or the environment from danger or potential danger caused by a fire or a hazardous materials emergency’ (s 53).  That has to include a power to protect other air operators who are working above a fire (see also Work Health and Safety Act 2011 (Qld)).

In my view the order that limits the use of the drone, determines how it is to be approved etc is not inconsistent with the CASA rules, that is one can comply with both at the same time and whilst CASA may intend to regulate the use of airspace, QFES has the role of regulating safety on the fire ground so although they overlap, QFES is not impermissibly moving into areas that are intended to be the sole preserve of Commonwealth regulation (see Ex parte McLean (1930) 43 CLR 472 at 483 (Dixon J); Momcilovic v The Queen [2011] HCA 34, [238]-[262] (Gummow J), [314]-[348] (Hayne J)).

I was asked to give my:

… opinion of this attempt by a State authority to impose blunt control over legitimate aspirations for volunteers prepared to risk their lives firefighting, but expecting the best possible leadership in the process.

I will not buy into the debate of whether this is an ‘attempt by a State authority to impose blunt control’ or whether the desire to use the drone is ‘legitimate aspirations’.  That would get into a debate about the merits of the policy which I’m not prepared to do.    What I can do is say:

1. The deregulation of the use of small drones only applies to those that are used ‘for sport or recreation’. The Commissioner is correct, in my view, to conclude that the use of a drone on a fire ground is not a use ‘for sport or recreation’. If that is correct (and I’m sure it is) then all the CASA rules apply.  That has nothing to do with the Commissioner and is not the product of the Commissioner’s standing order but the CASA regulations.
2. The Commissioner can issue a standing order directed to QFES, the SES and rural fire brigades and that standing order must be complied with (Fire and Emergency Service Act 1990 (Qld) s 83).
3. The Commissioner can also give those directions as part of his or her general responsibilities to ensure safety during fire fighting and other operations. (Fire and Emergency Services Act 1990 (Qld) s 53; Work Health and Safety Act 2011 (Qld)).

The web page of the Rural Fire Brigades Association Queensland Inc. is reporting that the Queensland State Government has accepted legal advice to the effect that Queensland’s rural fire brigades are not part of the Queensland Fire and Emergency Service.  They have posted four issues that they ‘demand’ the QFES Commissioner respond to.    I’m not the QFES Commissioner and do not purport to speak on his behalf, but I’ll have a go.

 1. Clear legal definition of what is a Rural Fire Brigade, who constitutes it and what powers and responsibilities it exercises.

A rural fire brigade is ‘a group of persons’ who have been registered with the QFES Commissioner (Fire and Emergency Services Act 1990 (Qld) s 79).     Who constitutes it is the people that seek registration of the Brigade.  The Brigade would remain constituted by the operation of its roles.  A Brigade could be constituted by a group of individuals, an incorporate entity, a local council or anyone else who wants to seek registration.

What responsibilities or powers it exercise are those responsibilities determined by the Commissioner (s 82).   One of the things the Commissioner must do is identify the area where the brigade is in charge of fire fighting operations (s 82).  When working in that area, the first officer of a rural brigade has all the same powers as an authorised officer of the QFES even though the first officer is not a member of the QFES.  The power of the first officer may be exercised by anyone acting under that officer’s direction and where the brigade first officer is not present, the first officer’s powers may be exercised by the senior brigade member (s 83).

2. Clear legal definition of the relationship between QFES, Rural Fire Brigades and the SES.
According to the Fire and Emergency Services Act 1990 (Qld) the QFES is made up of the Commissioner and Fire Service Officers (s 8A). Fire Service Officers are persons employed by the Commissioner pursuant to s 25 of the Act (see s 3 and Schedule 6). It is axiomatic that volunteer fire fighters are not employed so they are not part of the QFES.

Notwithstanding that a rural fire brigade and its members are not part of QFES they are subject to significant direction and control.  The Commissioner of QFES is ‘The commissioner is responsible for the efficiency of rural fire brigades and may provide training and other assistance to them’ (s 85). A brigade may make rules but the rules must not be inconsistent with the Act and must be approved by the Commissioner (s 80).  A rural fire brigade must elect a first officer and such other officers as the brigade thinks necessary but the elections must be held in accordance with the Commissioner’s directions (s 81).  Despite being elected a person only holds office for the period specified by the Commissioner and he or she can be removed by the Commissioner and the Commissioner may disqualify a person from holding office (s 81).  A rural fire brigade has such functions as the Commissioner may determine (s 82).  The Commissioner may, but is not required to, provide equipment to a rural fire brigade or provide a subsidy to purchase equipment.  Any equipment provided or subsidised by the Commissioner remains the property of the State (s 84).

So can we answer the question?  Yes I think we can.  The Act begins by providing for the appointment of a Commissioner (s 5).   The Commissioner is to manage QFES, the SES and to perform any other function given under the Act (s 7A).   So the Commissioner, an individual appointed by the Governor-in-Council has a number of functions.  Along with fire service officers he or she forms the Queensland Fire and Emergency Service and he or she is to manage that service.   He or she is also to manage the SES and ES Units (ss 129-147D) and he or she is to exercise the authority described, above, with respect to rural fire brigades.

The fact that rural fire brigades is subject to the direction and control of the Commissioner does not mean they are part of the QFES.  We can describe the relationship as three services, all lead by the same Commissioner, but not the same service.

3. A re-writing of the Rural Fire Brigade Manual, all Operations Doctrines, Standing Orders and Incident Management protocols reflecting the true position of Rural Fire Brigades and the QFES.

I make not comment on this.

4. Amendments to the Fire and Emergency Services Act 1990, current as at 01/07/2014 to incorporate Rural Fire Volunteers and truly reflect the role that Rural Fire Brigades and Volunteers undertake.

Be careful what you wish for.   As it is the Volunteer brigades are their own entity albeit subject to direction and control from the QFES Commissioner.  If the Act was changed, if for example they became part of QFES they may lose much of their local identity that has been the hallmark of volunteer brigades throughout their history.   Being part of QFES may create a more responsive ‘all hazards’ agency and breakdown barriers between volunteers and paid staff and may open ‘volunteer to career’ channels but it does not necessarily come without a cost.  As QFES brigades may be expected to respond outside their own area and may be under more control.  Do all brigades, or their members, think moves such as the move from the Bush Fires Act 1949 (NSW) to the Rural Fires Act 1997 (NSW) was a universal benefit?  Maybe it was or maybe it wasn’t I’m not sure but if I was advising the Rural Fire Brigades Association Queensland Inc. I would want them to consider what actually is the problem, because their powers are pretty clear (s 83) so how do they want to be incorporated more into the QFES, and why?  There may be very good reasons to want changes to the Act, but they’re not obvious.

See also:

More on the Queensland Road Rules (November 26, 2012)

Malone inquiry into Queensland Rural Fire Service and volunteer protection (April 20, 2013)

A further review of the Malone Inquiry into the Queensland Rural Fire Brigades (June 11, 2013)

This came to me via a Facebook friend in NSW.  She asked:

If there is a bush fire on a property and the adjoining National Park and the Authorities cut Dividing Fences and internal fences, are those Authorities bound to replace and/or repair those fences and if so, is there a statutory time limit for the land owner to give notice of repair to the Authority?

The National Parks and Wildlife Service is responsible for managing fire in National Parks.  An authorised NPWS officer may enter neighbouring land, up to 8kms from land from the National Park, in an attempt to stop the fire spreading from the private land to the national park (but not the other way).  The Act does not specifically say they may use force or cut fences but it does say that the authorised officer may ‘do all such things as are reasonably necessary to suppress, or prevent the spread of’ the bush fire and that could well include cutting fences.  In exercising a power under this section, the authorised officer must comply with ‘any bush fire management plan applying to the land or agreed with the authority responsible for the land’ (ie the owner).  Which does not mean that the owners agreement is required or that there must be a bushfire plan in place, but if there is an agreement or plan, they must be honoured; (Rural Fires Act 1997 (NSW) s 133).  The Act does not say who is to pay for the damage.

The Rural Fires Act also says:

(1)        An officer of a rural fire brigade or group of rural fire brigades may, if persons are, or property is, endangered or likely to be endangered by a fire, incident or other emergency, do any of the following things:

(a)        pull down, cut and remove or cause to be pulled down, cut and removed, fences on any land,

Finally s 28 says:

Any damage to property that is caused by any person exercising any function conferred by or under this Division [ie Division 3 – Rural Fire Brigades] in good faith and any remedial work necessary to rectify damage to the environment is to be taken to be damage by fire within the meaning of any policy of insurance against fire covering the property so damaged.

So it follows that if the relevant authority is the Rural Fire Service then there is no obligation upon the service to replace or repair the fences.  The damage done by the RFS when fighting a fire is deemed to be damage done by fire.  If the landowner has insurance against loss by fire it must also cover this loss.  If they uninsured they carry the risk just as they carry the risk of loss by fire.

The situation is not so clear if the damage is done by NPWS as s 28 clearly does not apply to them (s 28 relates to action taken under Division 3, ss 15-33) and the NPWS authority is in s 133.  However it is intended that a statutory authority will use the powers that it has been given and absent an obligation to pay damages the only obligation to rectify the fences would arise if the decision was negligent that is, unreasonable in the circumstances.   There is therefore no clear obligation upon them to repair or replace the fence if their actions were reasonable (judged objectively, not by the property owner who may think it was quite unreasonable).

‘Vigilante firefighter league forming across rural Victoria amid fears authorities won’t stop blazes’ is the headline from the Victorian Herald Sun, (28 August 2014) and I was alerted to this by a discussion on the LInkedIN Group ‘Emergency Management Australia’.

The story says

“Rural land holders are spending up to $15,000 each to “armour up” with fire trucks, radios and protective clothing so they can form teams to beat the CFA and police to a threatening blaze before it gets out of control…

Since the Black Saturday Royal Commission, the CFA has declared its top priorities are to protect human life and communicate information to the public.

That means that during some battles, trucks have been on standby near homes and townships, while livestock, paddocks, sheds and fences are left without CFA protection.

Daraweit Guim farmer Tom McDonell lost 9000 sheep during the February Mickleham-Kilmore blaze and said the emotional impact had been traumatic.

Mr McDonell was stopped by authorities from returning to his smouldering property and said the CFA’s failure to also protect farming infrastructure and land had left businesses in a “dire” financial state…”

In the LinkedIN discussion a commentator says ‘Under the CFA Act, it is illegal to form a firefighting organisation outside the CFA framework’.

The Country Fire Authority Act 1958 (Vic) s 26 says

No association of persons shall operate as a fire brigade in the country area of Victoria unless it is first registered and its officers and members enrolled in accordance with this Act, and no persons so operating without such registration and enrolment shall have any powers or privileges or the benefit of any immunity conferred by this Act.

‘Brigade’ is defined as ‘a brigade registered by the Authority…’  So s 26 says

‘No association of persons shall operate as a fire brigade registered by the Authority…’   Section 26 does not say it is an offence to operate an unregistered brigade, just that any such brigade does not enjoy any powers, privileges or immunities.

This is consistent with s 107A which says

(1) A person must not use any name, title or description to imply an association with the Authority, without the written authority of the Authority.

(2) A person must not represent that the person is associated with the Authority unless such an association exists.

(3) A person must not impersonate an officer of the Authority or a member or volunteer.

(4) A person must not use any insignia described or set out in the regulations in any manner contrary to the manner set out in the regulations without the written authority of the Authority.

The Act provides a penalty of 6o penalty units (or 60 x $147.61 (Monetary Units Act 2004 (Vic)) = $8856.60) for each of these offences.

There is no need for legal authority to fight a fire (Stephens v Stephens (1970) 92 WN(NSW) 810); if a fire starts on my property of course I can attempt to extinguish it and equally if my friends and neighbours want to join me, they can.   Not only is this consistent with resilience any law to the contrary would be impracticable and unenforceable.

So what the CFA Act says, in my view, both in s 26 and 107A, is that one must not operate a brigade or purport in any way to be associated with the CFA unless one is actually associated with the CFA.  The so called ‘vigilante firefighter league’ would not commit any offence provided they in no way suggested that they were associated with the CFA.

If I’m wrong about that, then the issue is still ‘what is a brigade?’ In an earlier post, on the prohibition on private fire brigades in NSW (‘What is a NSW fire brigade?’  (27 August 2014)) I said:

I infer that a contractor who’s providing emergency services for a single client and who’s willing to accept the authority of Fire and Rescue NSW if and when they respond, is not operating a fire brigade.  A contractor who establishes an offsite ‘station’ and who has a multiple client base and agrees to provide emergency services that would involve travelling from their station to their various clients in response to an emergency call, would be conducting a fire brigade and would certainly be doing so if they had some agreement or expectation, or promised their clients that they, and not Fire and Rescue NSW would take charge of operations at any particular fire.

Similar reasoning might apply here.  A group of farmers who agree to help each other out in a mutual aid arrangement are not, in my view, a brigade.  It may be different if they had a central shed or station, detailed administration with chain of command, logos and the like.  The story says ‘Negotiations are underway with sponsors including insurance companies and equipment suppliers’ which may, depending upon the terms, make them look like a brigade, but, on the other hand, an insurer that offers a premium discount because people are taking proactive measures to reduce their risk may just be making an actuarially sound judgement.

In any event these farmers will be subject to the CFA Act and the powers of CFA officers at the scene of a fire.  For example s 30(1)(g) says:

If a person is interfering, by his or her presence or otherwise, with the operations of any brigade or group of brigades or is in or on any land, building or premises that is burning or threatened by fire, the Chief Officer may—

(i)     order the person to withdraw and may include in the order a direction to immediately leave any area affected by the fire by the safest and shortest route; and

(ii)     in the event that the person fails or refuses to withdraw—remove the person or direct a member of a fire brigade or a police officer present at the fire to remove the person;.

That could well be applied to these volunteers if it is felt they are interfering with CFA operations.

There is no doubt that members of the vigilante firefighter league would enjoy no immunity or other privileges; that is they would have no specific powers to allow them to operate, they would not enjoy statutory immunity from liability for actions taken in good faith to deal with a fire and they would not enjoy statutory rights to compensation.   Equally they would not have obligations to provide fire fighting services or to maintain neighbourhood safer places.  Unlike the CFA, that owes obligations to the entire Victorian community, they would be entitled to focus their resources on protecting their own interests and not on what, in a broader view, is the ‘community’ interest.

Interesting times indeed.

The Fire Brigades Act 1989 (NSW) s 31 says

(1)  It is unlawful for any persons to constitute or maintain a fire brigade for the purpose of extinguishing fire within any fire district except:

(a) as a permanent or volunteer fire brigade under the authority of this Act, or

(b) on premises or land owned or used by the persons or at which they are employed.

But what is a fire brigade?   According to the definitions section of the Act,

“fire brigade” means a permanent fire brigade or a volunteer fire brigade, but does not include a rural fire brigade.

“permanent fire brigade” means a permanent fire brigade established and maintained by the Commissioner, the services of whose members are wholly at the disposal of the Commissioner.

“volunteer fire brigade” means any association of persons for which an approval as a volunteer fire brigade is in force under section 9, but does not include a rural fire brigade.

If we applied those definitions, s 31 would say:

It is unlawful for any persons to constitute or maintain a permanent fire brigade established and maintained by the Commissioner, the services of whose members are wholly at the disposal of the Commissioner or an association of persons for which an approval as a volunteer fire brigade is in force under section 9 for the purpose of extinguishing fire within any fire district except:

(a)       as a permanent fire brigade established and maintained by the Commissioner, the services of whose members are wholly at the disposal of the Commissioner or an association of persons for which an approval as a volunteer fire brigade is in force under section 9…

And that is silly.  It would be impossible for a person to maintain a brigade that is established and maintained by the Commissioner and it can hardly be an offence to maintain a volunteer brigade where there is an approval in force.  And in any event it is a defence to maintain a brigade that is established by the Commissioner etc.  Taken literally s 31 says ‘it’s an offence maintain a fire brigade except where the fire brigade is a fire brigade’.  Clearly ‘fire brigade’ in s 31(1) does not have the same meaning as ‘fire brigade’ in the definition section.

So what is a fire brigade under s 31 and why is it important?  It’s important because of a growth in private emergency service providers.  Companies and event organisers have both statutory and common law obligation to ensure that, after an appropriate risks assessment, they have in place emergency procedures and personnel to provide first aid, rescue and where appropriate fire fighting resources.  If they want to engage a contractor to provide those services is the contractor breaking the law?

Section 31(1)(b) allows for companies to establish their own industrial brigade, so a company can employ people as fire fighters, but would that extend to contractors?  If company A needs to maintain fire fighting capacity at its factory, and it engages company Z to provide those services, company Z would employ the necessary staff.  The fire fighting staff are employees of Z, not A so when they ‘stand by’ at A’s factory, or mine, or public event, they are not on property owned or used by their employer.   But are they a fire brigade?  One might think that if company Z is providing a range of services, of which fire fighting is just one, that they are not, but fire brigades also, increasingly provide a range of services.

Some history may help.  It is understood that fire brigades, historically, were provided by local governments, insurance companies and groups of concerned citizens banding together to form a brigade in their common interest; (see Murray, Robert and White, Kate (1995), State of Fire: a history of volunteer fire fighting and the Country Fire Authority of Victoria (Hargreen, Melbourne); Ellis, Julie-Anne (2001), Tried by fire: the story of the South Australian Country Fire Service (South Australian Country Fire Service, Adelaide); Ruoff, Theo (1966), ‘Links with London’ The Australian Law Journal, vol 40, pp 211-213; Myer Stores Ltd v State Fire Commission [2012] TASSC 54, [41] (Blow J)).   Original moves to bring brigades together was not to bring them into a central organisation but just to provide some uniform training and coordination so they could operate together, but they still remained individual and independent brigades.  Victoria’s first fire brigade legislation, the Fire Brigades Act 1890 (Vic) was an Act to improve the administration of fire brigades. This Act empowered the local municipalities that had an interest in providing fire protection to do so if they wished (Victoria, Parliamentary Debates, Legislative Assembly, 18 June 1890, 381 (Mr Deakin)), it did not require them to do so.  It is still the case that in some states, the bushfire brigades are operated by councils (Western Australia) or are independent legal entities (Queensland).  Organisations such as the NSW Rural Fire Service are relatively new, the RFS being created in 1997 when the Rural Fires Act 1997 (NSW) replaced the Bush Fires Act 1949 (NSW)

Let us then look at the history of s 31.  This section was amended in 1993 but only to add a reference to hazardous materials incidents.  Otherwise the section, and importantly s 31(1) has been in place since the Act was first passed in 1989.

The first fire brigades Act in NSW was the Fire Brigades Act 1884 (NSW).  This Act created the Fire Brigades Board, the Board was made up of one representative from the council of the City of Sydney and one from all the other Councils that would have a fire brigade, as well as two representatives from the insurance industry and one representative from the volunteer fire brigades then operating in NSW.  It was the duty of the Board to:

… establish and maintain an efficient Brigade for the extinction and suppression of fires and protecting life and property from loss and damage thereby and to furnish such Brigade with such fire engines hoses tools implements accoutrements horses and appliances as may be necessary … (s 4).

Further the Board could:

… enrol and take over the present Insurance Companies Fire Brigade and all property thereto belonging and the Colonial Treasurer shall out of the Consolidated Revenue Fund pay such sums as may be required equal to the aggregate amount of the valuation of such property … (s 5)

and

 All Volunteer Fire Brigades … shall be registered at the office fo the Board and shall be subject to inspection by the Superintendent and at all fires shall be subject to his orders … (s 10).

(As an example of qualification creep it is interesting to see that in 1884 the Chief Officer was the Superintendent of Fire Brigades.  Today a superintendent sits somewhere below the Commissioner, Deputy Commissioner, Assistant Commissioner, Chief Superintendent etc).

What is evident is the new Board was to take over insurance brigades and bring the volunteer brigades under their direction and control.  As with today, the Brigade was to be funded from contributions made by the insurance sector and local governments (s 13).  There was no specific offence of maintaining a brigade contrary to the Act but the governor could make regulations to give effect to the Act including creating offences.   The old regulations are not readily available so one can’t see if there was an offence in the regulation.

The 1884 Act was replace by the Fire Brigades Act 1902 (NSW). The Board, established under the 1884 Act continued as the Board under the 1902 Act (s 2(4)).  The Board had similar functions as it did under the 1884 Act but now it was also to fund the Brigade to obtain fire alarms and telephones (s 11).   There is no mention of insurance company brigades, presumably there were none, but again volunteer brigades had to be ‘registered at the office of the Board’ (s 29) and:

All volunteer fire brigades established within the Metropolitan District [were] subject to inspection by the Superintendent, and shall at all fires be subject to his orders. (s 19)

This Act did not have a long life and was repealed and replace by the Fire Brigades Act 1909 (NSW).  The 1909 Act created the Board of Fire Commissioners to replace the Fire Brigades Board.  The new Board was to

… establish and maintain permanent fire brigades, and authorise the constitution of volunteer fire brigades, and [could] suspend or cancel any such authorisation. (s 20(a)).

The Chief Officer could

… inspect volunteer fire brigades and their premises and equipment, and enforce compliance with the by-laws made in respect of the same. (s 30(a)).

In this Act we see the forerunner of today’s s 31.  Section 41 of the 1909 Act said:

It shall not be lawful for any persons to constitute or maintain a salvage corps or a fire brigade for the purpose of salvage of property at fires or of extinguishing fire within any municipality or shire, or any part thereof, to which this Act applies, outside premises or land owned or used by such persons or at or on which such persons are employed, unless such corps or brigade is constituted by the board or is authorised by the board to act as a salvage corps or fire brigade. Any person who acts in contravention of this section shall be liable to a penalty not exceeding twenty pounds.

The definition of ‘fire brigade’, ‘permanent fire brigade’ and ‘volunteer fire brigade’ were similar to those found today.    The 1909 Act was replaced by the current Act of 1989.

It appears that today’s s 31 is largely a ‘cut and paste’ of the 1909 s 41, save that the modern Act does not refer to a salvage corps.  What we can infer is that these prohibitions are aimed at stopping private brigades that provide the type of services that are offered today by Fire and Rescue NSW.    We don’t want to return to municipal or insurance brigades providing an emergency    fire fighting service and an undignified rush by various brigades to fires and perhaps competition or argument as to who is in charge.

Does that extend to private emergency service providers?  On one view it would, a private company that sets itself up as a fire and emergency service and agrees to respond to their client, in return for a fee, would be exactly the sort of operation that I think the Act is aimed at.  On the other hand, a contractor who attends a particular work site, whether its providing standing emergency services at a factory or mine, or an ad hoc service provider who’s attending a community or sporting event just for the few days in which its operating, seems very different.  The emergency service provider in that case is providing the sort of service that a person conducting a business or undertaking (a PCBU) is required to provide under modern work health and safety law (see Work Health and Safety Act 2011 (NSW) and in particular Work Health and Safety Regulation (2011) regs 42 and 43).

We all have an image of what is a fire brigade, a crew of 4 in a fully equipped appliance that is standing by for the emergency call.  A contractor’s response team may look like that, or may look very different but they are still there to respond to fires and other emergencies.  It should be noted however, that there is no need for legal authority to fight a fire; anyone can fight a fire (Stephens v Stephens (1970) 92 WN(NSW) 810).

So I infer that a contractor who’s providing emergency services for a single client and who’s willing to accept the authority of Fire and Rescue NSW if and when they respond, is not operating a fire brigade.  A contractor who establishes an offsite ‘station’ and who has a multiple client base and agrees to provide emergency services that would involve travelling from their station to their various clients in response to an emergency call, would be conducting a fire brigade and would certainly be doing so if they had some agreement or expectation, or promised their clients that they, and not Fire and Rescue NSW would take charge of operations at any particular fire.