This question comes from someone involved with a council operated life saving  service who says that the

… Council provides a Lifeguard Service 7 days a week, 365 days a year, and provides an after-hours response to NSW Police and NSW Ambulance if required;

The Lifeguard Unit has two ‘emergency response’ vehicles, fitted with Red lights and sirens as per RMS Vehicle Standards VSI 8, and the vehicles are marked in Red and White chequers with fluro orange and yellow with the Council insignia and LIFEGUARD markings.

Lifeguards are regularly requested due to our proximity to respond to missing swimmers, surfers, kayakers, overturned boats etc. Our Lifeguard Headquarters is based at XXX and our Jet ski is based at XXXX some 2klm away. During summer the response with traffic in this busy coastal area can take up to 15 minutes to travel to the jet ski base.

At present we utilise lights and sirens when we encounter these traffic conditions and apply Rule 307 ARR [I actually think that means r 306 of the Road Rules 2014 (NSW) as r 307 relates to parking], when an emergency arises and when reasonable to do so.

Under the provisions of s53 STATE EMERGENCY AND RESCUE MANAGEMENT ACT 1989, there is an exemption provided under 3(a) A rescue unit is not required to be accredited:

(a)    if it is a unit only engaged in surf life-saving

However, section 2(a) A rescue unit is required to be accredited even though: it is a unit of the NSW Police Force, Fire and Rescue NSW, the Ambulance Service of NSW, the State Emergency Service or any other government agency,

My question relates to what takes precedence, the fact that Sutherland Shire Council is defined as any other ‘government agency’ or does the exemption apply as the Lifeguards are responding to Surf Life Saving based rescues?

My interpretation has been that if directed by NSW Police or Marine Command to attend to overturned boats is under the direction of NSW Police or NSW Ambulance, and if responding to the jet ski base to assist in surf rescue that ARR307 would apply.

This question is really in two parts, it’s about accreditation under the SERM Act, and the Road Rules 2014 (NSW).

The State Emergency and Rescue Management Act 1989 (NSW) – accredited Rescue Units

This Act says, at s 53(1) ‘A person who establishes, manages or controls a rescue unit which is not accredited under this Division is guilty of an offence’.  As my correspondent has noted, s 53 goes onto say:

(2)       A rescue unit is required to be accredited even though:

(a)       it is a unit of the NSW Police Force, Fire and Rescue NSW, the Ambulance Service of NSW, the State Emergency Service or any other government agency…

(3)       A rescue unit is not required to be accredited:

(a)       if it is a unit only engaged in surf lifesaving…

One needs to consider the sort of accreditation given by the State Rescue Board.  Units are accredited in General Land Rescue, Specialist Land Rescue and Maritime Rescue (see State Rescue Board, Rescue Arrangements in NSW (2017)).     Section 53(2) is saying that if one is going to engage in that sort of work then accreditation is required.  Section 53(3) is saying that organisations like a volunteer surf patrol does not require accreditation.

The general rule of statutory interpretation is that a specific provision such as s 53(3)(a) will take priority over a general provision, such as s 53(2)(a) so that if this council ‘unit’ is ‘only engaged in surf lifesaving’ then accreditation is not required.  The fact that they are called out to assist police and ambulance does not change that position.  NSW police are responsible for coordinating rescue (s 50) and they can call on resources other than accredited rescue units (state rescue policy) so if the police want to call on this team because they have specific skills that can be used, they can do so.    Equally NSW Ambulance can call from assistance from anyone they want to.

If however the lifeguard’s patrol, on their own initiative, river beaches and waterways and provide an emergency response to boats in distress, one might question whether they are ‘only engaged in surf lifesaving’.  If it came to be tested, if by some bizarre circumstances someone launched a prosecution for maintaining an unaccredited maritime rescue unit, then it would be up to a court to determine what the intention and purpose of the service was.  If it was intended to be a surf lifesaving unit, but occasionally did these extra duties at the request of the other services, s 53 (3) would apply.  It the reality was that it was more than that and the unit was regularly engaged in rescues at places other than surf beaches (and perhaps was equipped and trained for these other tasks) then it might appear it is not ‘only engaged in surf lifesaving’ in which case accreditation would be required.

The question for a court would be “is the work of responding to missing swimmers, surfers, kayakers, overturned boats etc’ really incidental to the surf lifesaving function or is it an equal or ‘core’ function?”

Road Rules 2014 (NSW)

The other question relates to the road rules.  We’re told that the vehicles are equipped with red lights and sirens and I’ll assume that all the relevant permissions from RMS have been obtained to allow that to happen, and the drivers have been proclaimed to be ‘emergency workers’ for the purposes of the Road Rules 2014 (NSW).    If that’s the case and the crew are responding to an ‘emergency’ and it’s reasonable to be given an exemption and they are taking reasonable care, then yes, r 306 will apply.

If there has been no permission from RMS to install the red lights or sirens or if the team aren’t proclaimed to be emergency workers, then a direction from NSW Police or NSW Ambulance isn’t sufficient to trigger r 306.  It’s RMS that gets to say who has red lights and sirens and who is an emergency worker for the purposes of the Road Rules, not the police.

 

This question comes from a volunteer with NSW SES who has been involved in responding to recent requests for assistance following storm damage.  In one case

… a falling tree had done substantial damage to the roof of a single story house. Due to the lateness of the call, the amount of jobs we had previously completed, the proximity to Christmas and the complexity of the job, we decided to refer the tree to professionals who could not complete the job until about 4 days later (after Christmas.)

While inside the house, we made an assessment that there was structural damage to one room and, after conducting a check for asbestos we decided to no longer enter the house for our own safety.

We had a discussion with the landlady about the structural damage and advised her in a strictly non-professional manner that it was probably ill advised to have the tenants re-enter the house until it had been assessed by an engineer or whoever her insurer wanted to use. We also advised her we had taped over the entrances to the house with SES tape to preserve public safety but that we had no legal powers to require her or her tenants not to enter (she questioned this specifically.)

So my question is: do we hold any liability in the event of secondary collapse and did we have an obligation to pass the structural damage to another agency? The landlady was very reasonable, or so it seemed, but if she wasn’t then she might have refused to offer the tenants alternative accommodation and they may have ended up staying and potentially being injured in a secondary collapse – which is where I see potential liability.

Would it change the answer if we had not taped the area, or if we hadn’t given her any advice regarding the structure?

The team that attended was composed of 6 experienced GLR operators and we’ve all done our USAR [Urban Search And Rescue] upgrade. Does that mean that we have some sort of specialist knowledge and would that impact the answer?

There are several questions here and the starting point is to remember that one is only responsible for things that you are responsible for – that’s cryptic so let’s explore that in more detail by breaking this into separate questions.

First, do we hold any liability in the event of secondary collapse and did we have an obligation to pass the structural damage to another agency?

The State Emergency Service Act 1989 (NSW) s 8 says that the functions of the SES 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,

(a) …

(b) to act as the combat agency for damage control for storms and to coordinate the evacuation and welfare of affected communities …

The problem with this definition, and the Act generally, is that it gives no guidance on the limits of the SES responsibility.  If people are not protected, that is if someone suffers loss or damage, or injury or death, due to a storm, flood or tsunami, it can’t be that the SES has failed to perform its functions.  For example, putting hurricane rated roofs on every NSW property would ‘protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from … storms’ and so be consistent with the functions set out in s 8(1)(aa) but no-one would seriously argue that there is an obligation upon the SES to do that.   So what is the SES to do to meet its obligations under s 8(1)(aa)?  The answer must be that the SES has to do whatever it thinks appropriate but I would suggest no court would ever accept that s 8(1)(aa) imposes a legal duty upon the SES.  It is merely a description of the parliament’s intention of what the SES is to do, rather than a section intended to give rise to legal rights – see FRNSW and what does it mean to ‘proceed with all speed’? (October 6, 2015).

Equally the response role (s 8(1)(b)) does not explain what the SES is to do.  The obligation to Act as a ‘combat agency’ won’t give rise to a duty to be enforced by an aggrieved person.    We can draw an analogy with NSW Fire and Rescue.   Having put a fire out, the fire brigade are under no obligation to repair the house, and although they have the power to render the premises safe (which they can do by either shoring it up or even knocking it down; Fire Brigades Act 1989 (NSW) s 17) it’s unlikely they would be liable for failing to do so in particular if they can demonstrate that they thought about it and came to ‘good faith’ conclusion that such action wasn’t necessary (Fire Brigades Act 1989 (NSW) s 78).  Equally, the SES has some power to make premises safe from immediate danger and to that end the Commissioner may, during the response to an emergency caused by a flood or storm (ss 19 and 20), take possession of, and remove or destroy anything in an emergency area or ‘part of an emergency area that may be dangerous to life or property’ (s 22A(c)).

Further, it’s not actually true that the SES has ‘no legal powers to require [the tenants or owner] not to enter’ unsafe premises.  Where the emergency is caused by a storm, the Commissioner or an authorised emergency officer may ‘direct, a person … to leave any particular premises and to move out of an emergency area or any part of an emergency area’ (s 22(1)).   Just because the Commissioner ‘may’ do these things (ss 22 and 22A) does not, however, mean that the Commissioner or the SES will be liable if those actions are not taken. The presence of a discretionary power (‘may’) does not give rise to a legal duty to exercise that power.

Where the emergency services have been found to be under a duty of care to those affected by an emergency, it is generally limited to a duty not to make the situation worse, not to make it better (see Liability for Fire – A Review Of Earlier Posts (January 8, 2016)).   Imagine a storm and a leaking roof.  The fact that a person has rung the SES doesn’t make the SES liable for any damage that occurs between the time of the phone call and the time of the response even if that response time is measured in days rather than minutes.    The SES only has limited resources and has to prioritise the responses it receives, whether that’s by some triage process or on a simple ‘first come first served’ basis.   If the SES does turn up and tarps the roof, but does it in such a way that water still gets in, it’s hard to see any liability there either.  The SES didn’t actually cause the damage to the roof.   As with fire brigades I would think the extent of the duty (if any) is not to make the situation worse.  At the end of the day, damage to the property is the property owner’s problem.

In the brief scenario given I can’t see how the actions of the SES has made the situation worse.  My answer to the first question ‘do we hold any liability in the event of secondary collapse and did we have an obligation to pass the structural damage to another agency’ is, unless the SES increased the risk or made the situation worse, no.

Second, what if the landlady was NOT very reasonable and ‘refused to offer the tenants alternative accommodation and they may have ended up staying and potentially being injured in a secondary collapse’?

The relationship between the landlord and tenant is one based on contract and the terms of their lease.   Generally speaking it is the landlord’s duty to provide premises that are safe and habitable.   Whether there would be an obligation upon the landlord to provide alternative accommodation, or simply to terminate the lease on the basis of ‘frustration’ (ie the lease is frustrated if the premises are no longer habitable) would depend on the terms of the lease and the nature of the damage.  Fundamentally, however, it is not the SES’ job to protect tenants from the landlord.

The situation may be different if the SES didn’t warn the landlord of their concerns, or more importantly, gave a positive assurance that the premises were indeed safe (see Liability for Advice on Dangerous Trees (June 13, 2016)) but that was not the case here (and for further discussion on this point, see below).  Where the SES members express their concerns – which were sufficiently serious that the SES refused to enter the premises – then the obligations between landlord and tenant are a matter for the landlord and tenant.   If that were not the case you might get a situation where the SES turns up to damaged property and put a tarp on and leave it at that because the landlord is willing to pay for the tenant’s hotel until the job is repaired, and on another job the SES would end up paying for out of hours trades to come and fix the premises because the landlord refuses to take action and the tenants have no where to go.  It can’t be the law that the decision of the landlord imposes a duty on the SES.

Would it change the answer if we had not taped the area, or if we hadn’t given her any advice regarding the structure?

I think it might if the danger was obvious to the SES and it was clear that the occupants and/or owner didn’t appreciate the danger or were going to act in a hazardous way.  In that case the SES is not responsible for other’s actions but they are responsible for their own, so they are responsible for not sharing their opinion.   If the SES gave a positive assurance that the premises were indeed safe and that it was OK to move back in, it could even be that the SES actions made the situation ‘worse’ particularly if it was clear that the landlord or tenant was relying on the SES advice.  For example, if the landlord said ‘I’ll put the tenants up in a hotel and I’ll get my repairer to look at the premises next week’ and the SES members said ‘no need for that, we’ve made it safe, it will be fine’ so that the landlord and tenants agreed that they will stay in the premises, that then fall down it could be argued that the assurance of safety actually increased the risk and most readers would probably think that no reasonable member of the SES would give advice in those terms.  And if that’s the case, that’s the test for ‘negligence’.

That’s not to say that an overcautious response is called for – ie warn every occupant of a storm damaged house to leave until engineers have inspected it.  The obligation (if there is one) is to act ‘reasonably’ and remember that the occupants are ultimately responsible for the damage and for their own well being.  It’s not the case that the SES are getting sued in these sort of situations and it’s not likely that they will be so it’s not appropriate to make decisions designed to ‘cover your backside’ rather than reflecting a genuine belief in what’s required.

The team that attended was composed of 6 experienced GLR operators and we’ve all done our USAR [Urban Search And Rescue] upgrade. Does that mean that we have some sort of specialist knowledge and would that impact the answer?

It does mean you have more knowledge than someone who hasn’t done the USAR training but I don’t see it affects the answer.  If you think the premises are dangerous you warn the occupants and there’s not much more you can do. If the USAR training means you see danger where perhaps others may not then so be it.

What’s an ‘emergency’?

This is not a question my correspondent asked but it is raised by this discussion and also in the various discussions about the road rules.   As noted above there are powers to compel evacuation and to render premises safe in an emergency.  Is a tree on a house an ‘emergency’?

‘Emergency’ is not defined in the SES Act but words in the SES Act ‘have the same meanings as in the State Emergency and Rescue Management Act 1989, except in so far as the context or subject matter otherwise indicates or requires (State Emergency Service Act 1989 (NSW) s 3).     It follows that the definition of ‘emergency’ in the SES Act is the definition found in the SERM Act.  The SERM Act defines an ‘emergency’ (s 4(1)) as

… an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:

(a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or

(b) destroys or damages, or threatens to destroy or damage, property in the State,

being an emergency which requires a significant and coordinated response.

This begs the question of what is ‘a significant and coordinated response’.  On one view a response that involves a single unit, whether it’s a fire appliance, an SES team or an ambulance is not ‘coordinated’, they just work by themselves.  On another view, any such response is both significant and coordinated.  It’s significant because of the resources that are involved in setting up and training a fire crew, SES crew or team of paramedics. Further it’s coordinated as even a single vehicle response requires the relevant ComCen to be aware of who is going, and being prepared to back them up and otherwise fill gaps left by their response.  When the ComCen dispatches a fire crew, ambulance or SES unit there is a degree of coordination going on.  And for the person with chest pain, or a person who calls the SES for a tree on their roof, it’s their emergency even if it’s ‘business as normal’ for the response service.

A tree on a roof, or a house fire, or a multi vehicle car accident is certainly not the sort of emergency that will trigger the State Emergency Response Plan or even activate the Local Emergency Operations Controller (LEOCON) but that is not the test for what is, or is not, an ‘emergency’.  It would be my view that any response to a triple zero call, at least, is an ‘emergency response’ because the response by a fire brigade or ambulance service is significant and coordinated and the reason they are a triple zero service is because they are there to respond to events that without a timely response can lead to death and/or widespread property damage.    Equally the response by the SES to rescues, including flood rescue, would be an emergency response.  I’m not sure about a response to a tree on a roof, even if it’s a ‘significant and coordinated’ response a tree on a roof has already done the damage and the SES isn’t under an obligation to make good the damage done by a storm, any more than a fire brigade is under an obligation to make good the damage done by fire.    And a fire brigade going to inspect a fire ground where the fire has been extinguished is not going to an emergency.   The fire brigade are there to put the fire out – to remove the hazard.  Having done that it’s the property owner’s problem.  It may be an emergency response for the SES to go to stop a tree falling on a house, but once it’s fallen, the emergency is over.

A final word

Like most of discussions on this blog, it’s all very interesting from a theoretical perspective but not really a problem.   Remember the emergency services are not regularly sued over their response.  In the situation described the damage done to the building was done by the storm.  If there is a further collapse that is also caused by the storm.  It’s only if the SES made the situation worse that it could be said to be caused by the SES.  If the SES take control of the premises and, say knock it down (relying on s 22A) then any damage is deemed to be damage caused by the storm (s 25A).  Further the SES and its members are not liable for ‘good faith’ decisions (s 25) so if they, in good faith, determine that the premises were rendered safe by taping it up and warning the landlord, there can’t be liability for not taking further action such as ordering an evacuation or knocking the building down.

Conclusion

The only way I could see liability in the scenario described would be if the SES positively assured the home owner that the house was safe and not going to fall down in circumstances where it was obvious that the occupants were relying on the advice of the SES.   In most cases, if people were to ask ‘is it safe’ the SES would say something like ‘we’ve done what we can to stop the rain coming in but we don’t know what damage the tree has actually done to the structure of the house’.    And in this case where the SES has made a decision that the premises are too unsafe for the SES to enter, then communicating that seems reasonable.  What people do in response to that advice is a matter for them.

Yesterday’s post – No Special Speed Zones When Passing Emergency Service Vehicles Except in South Australia (January 4, 2017) – has inspired a NSW RFS volunteer to write:

There are a number of definitions of emergency worker and these definitions are used in other legislative provisions.  My interest is as an officer of a Rural Fire Brigade in NSW, but I suspect that the issues apply to other emergency services in NSW and other jurisdictions.

For example, the rule 306 of NSW Road Rules 2014 provides exemptions from other provisions of the Road Rules for drivers of emergency vehicles.  Rule 307 similarly provides exemptions from parking and stopping rules in those Road Rules.  Both of these rules apply to a “driver of an emergency vehicle”.  Emergency vehicle is a defined term and means “any vehicle driven by a person who is an emergency worker, and driving the vehicle in the course of his or her duties as an emergency worker”.  Emergency worker is also a defined term and means (relevantly for the RFS) “a member of a fire or rescue service operated by a NSW Government agency … providing transport in the course of an emergency”.

Additionally, I note that NSW RMS Vehicle standards information VSI 8 provides:

“The use of blue, or blue and red flashing lights is intended to advise other road users that the vehicle displaying them is responding to an emergency situation. They must only be used when the vehicle is being used for police operational functions or urgent purposes arising from an accident, fire or other emergency.”

So it appears to me that the following situations arise as a consequence of these definitions:

1. Only vehicles going to an incident while it is still an emergency can “respond” (ie with lights and/or siren and the benefit of rule 306) and additional crews “proceed” (ie without lights and/or siren and complying with all the road rules). In my experience, this is well understood and applied – generally only one or two RFS vehicles will “respond” to a small incident with subsequent vehicles “proceeding”;
2. Those subsequent vehicles, and probably the original vehicles from the time the incident is “contained”, no longer have the benefit of rules 306 and 307 and therefore need to comply with all of the road rules, including needing to be parked legally, and turn off flashing lights;
3. There is no clear exemption from Part 14 of the Road Rules (Rules for Pedestrians), for emergency services personnel (unless the exemptions for drivers still apply when the driver is on foot, in which case the driver could legally walk in a no pedestrian area and other crew members could not).
4. If the same definitions of emergency vehicle and emergency worker applied in South Australia, what would be in impact on the reduced speed limits in “emergency service speed zones” if as soon as an incident is no longer an emergency, the vehicle is no longer an emergency vehicle and can no longer display flashing lights?
5. Finally, I relate this to the unfortunate situation of the F3 where an RFS vehicle was moving from one completed incident to another to collect its crew and was involved in a fatal accident. Given the second incident was no longer an emergency, would it have been legal for the RFS vehicle to have parked on the edge of the freeway (in a no standing or no stopping zone) to collect crew and equipment? Would displaying red/blue flashing lights been legal or made any difference to the legality of stopping on/beside the freeway?

I don’t think there is any fundamental flaw in the reading, the flaw is in the absence of a definition of what constitutes an emergency for the Australian Road Rules and the Road Rules 2014 (NSW) in particular.

In the case of the RFS driver convicted of negligently driving causing death, the trial judge looked to the definition of emergency in the State Emergency and Rescue Management Act 1989 (NSW).  I have argued elsewhere that I don’t think that can be the relevant definition of ‘emergency’ for the purposes of the Road Rules – see RFS Response to Volunteer’s Conviction for Fatal Traffic Accident (October 13, 2016).  In that case, however, the judge didn’t really need to define ‘emergency’ as whatever definition one used, this wasn’t one.   Even if the judge was prepared to infer that there had been an emergency on the first response, at the time of returning to collect the crew ‘there was no emergency, or even urgency…’

The essential issue of an emergency must be a threat to life, property or the environment where time is of the essence in the response.    Further definition is harder to come too so it must, to a large extent, be up to the emergency services to determine when ‘response’ driving is warranted – see Road Traffic Exemption – Who Determines if it is Reasonable That the Provision Should Not Apply? (May 22, 2016).

Implications

1)         Point 1, above appears well founded.  Assume there is a triple zero call and the fire brigade respond.  It’s up to the first attending brigade to report back to the ComCen on the state of the fire, if further resources are required, but time is not of the essence (and one has to ask how much time is saved by response driving – particularly in country areas) then there is no need for further units to ‘respond’.     If time is critical and it will make a difference to the response time, then presumably it’s still an emergency.

2)         Point 2 is more controversial.   Assume the RFS is at the scene of a grass fire that does not poses a threat to property (other than the grass) but the brigade have to fight the fire else it may well develop into a significant threat.  Is that an emergency?  In one sense it’s not, perhaps the further or relieving crews can simply proceed to the scene and there’s no reason to invoke rule 306.  But if rule 307 didn’t apply then they couldn’t park near the scene to actually stop a fire becoming an emergency.

I think the answer here lies in the requirement in both rule 306 and rule 307 that the exemption only applies ‘it is reasonable that the rule should not apply’ (r 306(a)(ii) and r 307(1)(b)).     So a judge could come to the conclusion that the grass fire is an ‘emergency’ but given time is not of the essence it is not ‘reasonable’ to apply the exemption contained in r 306  But it might be reasonable to give the driver the exemption from the parking rules.  In other words an emergency may be an emergency that justifies illegal parking, but not response driving.

3)         As for point 3 there is an exemption for pedestrians.  Rule 308 says:

A provision in Part 14 does not apply to a police officer or emergency worker acting in the course of his or her duty if, in the circumstances:

(a) the police officer or emergency worker is taking reasonable care, and

(b) it is reasonable that the provision should not apply.

Part 14 is ‘Rules for Pedestrians’.  If an emergency worker is ‘providing transport in the course of an emergency’ then I don’t think that’s limited to the driver.  The emergency worker who is walking is transporting him or herself and whatever kit they are carrying.

4)         For what it’s worth, an emergency worker, in South Australia, includes ‘members of an emergency services organisation within the meaning of the Fire and Emergency Services Act 2005’ (Road Traffic (Road Rules–Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) r 54) so a member of the CFS is an ‘emergency worker’ whether there’s an emergency or not, so the issues being discussed here don’t arise in that jurisdiction.

5)         It would not be legal for an RFS vehicle to have parked on the edge of the freeway (in a no standing or no stopping zone) to collect crew and equipment in the absence of an emergency.  It might be convenient but that doesn’t make it legal as a taxi driver, who cannot refuse a fare, will no doubt discover when they stop to pick up or drop off their passengers.  In the fire context, it might be argued that the presence of the crew itself constitutes an ‘emergency’ given they are at risk by being on the road side.  There is also the doctrine of necessity, a common law rule that says that it can be permissible to break the law in order to avoid a greater harm and the actions are proportionate to the given risk.  So asking the crew to try to get somewhere where the appliance may lawfully stop may be a greater risk than picking them up where they are.

Some reflections

The definition, particularly in NSW, is rather unhelpful because the status of a person and a vehicle changes.  People are an ‘emergency worker’ or driving an ‘emergency vehicle’ only where there is an undefined emergency.   This leaves much scope for debate.  It would be better if the definition defined an emergency worker by reference to his or her membership of an organisation.  That would not give carte blanche to ignore the road rules because the other provisions of r 306 and r 307, namely that the driver has to be taking reasonable care and it has to be reasonable in the circumstances that the exemption applies, would still be the law.  It would however avoid the theoretical possibilities discussed above.

The real impact, in my view, of these rules is not in the protection they give the emergency services but the protection they give the police.    The police can’t have an approach of ‘we let the firies off because they’re good people’, rather we are governed by ‘the rule of law’: ‘Be you ever so high, the law is above you’ (see “Tom Bingham, The Rule of Law”). That includes the driver of an emergency service vehicle who is bound by the law as much as anyone. The reason police, fire fighters and paramedics can drive contrary to the road rules is not because they are exempt from the law, but because there are specific laws to allow them to do those things, but they must comply with that law – this is fundamental to the issue of the rule of law.

The presence of rr 306 and 307 means that a police officer who sees a fire appliance at the side of the road whilst the crew are fighting the fire can say to anyone who asks ‘they’re allowed to do that’, but that same officer, who thinks it’s not safe or they don’t need to be where they are can direct them to move the vehicle or issue a ticket.

The same for a judge.  If the judge, looking at all the facts, thinks that what the driver did was reasonable he or she can acquit them and point to the law as justifying that conclusion.   I think that’s what would happen in the scenarios above, if on all the facts, a police officer or judge thought the actions of the emergency worker were justified either in parking by the side of the road or crossing the road against a red ‘don’t walk’ light they can take no action and justify that to the community as being consistent with the law, not just a decision on a whim.    And if they do issue an infringement notice, the person who receives it has an opportunity to challenge that decision and make an argument that is more than just ‘but this is silly’. They can actually point to the law.

Ultimately these clauses are very, and I would say deliberately, imprecise to give flexibility to the RFS (and other emergency services) the police and the courts. If, in all the circumstances, the way the vehicle is driven, or parked, is reasonable then the police and courts can ‘let you off’ not on the basis of hidden discretion but because the law says they can; if it is not reasonable then you can still get a ticket.

The issue really becomes when are the police going to issue a ticket?  One circumstance will be automatic detection devices (red light and speed cameras) that will ‘ping’ an emergency service vehicle and may require the driver to address the issues in r 306.  But again, because it’s the law, if the driver can show that the circumstances prescribed by the rule apply, they are entitled to have any allegation withdrawn, it’s not merely a matter of the police ‘turning a blind eye’ but applying the law.

The most likely time issues will arise is when there is an accident.  It reinforces the rule of thumb said before, both by me and commentators on this blog – the most important rule is don’t crash.  If you crash your fire appliance, or someone runs into it when you’re fighting a fire (given the RFS could choose to close the road (Rural Fires Act 1987 (NSW) s 24) that’s when difficulties are most likely to arise because once there has been an accident it’s very difficult (but, granted, not impossible) to argue that the driver was taking reasonable care, because, if they were, the accident wouldn’t have happened.

I received this question from a correspondent who came across my blog through

…  Google (of course), after a fairly fruitless effort on my part to find out actual legislation/law/legal requirement for the speed limit when driving past accident scenes. From what I gather, your site isn’t geared for civilian advice, but it seems you might know where to look better than I seem to be able to. My searches give me “pull over and let emergency services vehicles have right of way” for the most part.

A post I came across on Facebook, originating from South Australia, says SA has implemented a flat rate 25kph when civilian vehicles are passing a scene in which there are stationary emergency service vehicles. Google verified this on government web sites.

I did some research trying to find out if the remaining states and territories ALSO have this rule. The best I could find were two articles from April for Victoria, and July for Tasmania that says speed limits when passing a scene *might* be implemented. I’ve looked in QLD, NT and WA road rules hand books, and can find no mention of this. Tasmania goes so far as to say to slow down to 40kph when there are flashing *yellow* lights (on school buses/school crossings), but nothing for red and blue flashing lights.

I haven’t given up yet. I haven’t ruled out emailing the various Transport Departments individually to gather this information.

Is this information something you can come up with? Is it worthy of a post (so Google searches can find it)?

My site is for answering questions about the law and Australia’s emergency services and emergency management. It is not ‘intended’ only for members of the emergency services (though I have no doubt they are the largest group of readers).   The law applies to and affects everyone, whether they are responders, interested citizens or those that have or will be affected by an emergency or call on the emergency services.  So the advice I give is advice on the law, not advice for ‘responders’ or ‘civilians’ but anyone who wants to ask.

Now to the point:

South Australia is the only jurisdiction that has a special speed limit when passing emergency vehicles (rather than an accident scene) – see ‘Emergency Service Speed Zones’ in SA from 1 September (March 21, 2014).    No other state or territory has followed SA’s lead and implemented an accident or ‘emergency service speed zone’. The reason my correspondent hasn’t been able to find ‘actual legislation/law/legal requirement for the speed limit when driving past accident scenes’ in the other jurisdictions is because there isn’t anything to find.

For the actual legislation in South Australia see the Road Traffic Act 1961 (SA) s 83.

In previous years WordPress has produced an automatic report at the end of each year.  This hasn’t happened for 2016 so I’ll have to write my own.

In 2016 this blog had:

• 160 posts and
• 103 999 visitors who viewed
• 178 056 pages and made
• 441 comments (including my own comments in reply).

In the life of the blog there have been 669 posts which means that 160/669 or 24% of all the posts on this blog were made in 2016.

The five most popular pages were:

• Home page/archives (30 988 views);
• The CFA Enterprise Bargaining Dispute (4 659);
• Good Samaritan Legislation and scope of practice (3 780);
• Australian Road Rules and emergency vehicles (3 318); and
• RFS Firefighter Sentenced Over Fatal Collision (2 736).

The most popular day, ever (ie since the blog began in January 2009) was 5 December 2016 when there were 2476 views.   On that day, I put up two posts, they were:

• New Bushfire Legislation in the Northern Territory; and
• RFS Firefighter Sentenced Over Fatal Collision.

 The top 5 countries for visitors were:

• Australia (165, 195);
• The USA (5 241);
• The United Kingdom (1 666);
• New Zealand (965); and
• Canada (716).

That’s a big year!

 

 

 

 

 

 

 

 

 

 

 

These questions come from a member of one of Queensland’s emergency services:

1. Could you please advise if there is any obligation by a government/agency/department to implement findings (recommendations) from an inquiry? Or are they just that … recommendations.
2. Are the entities still empowered with the responsibility and still obligated to act when State governments have changed and agencies and departments have had corporate restructures and name changes? Would the current government or entity still be charged with the responsibility to implement this change if they hadn’t been completed?

   As an example, following the 2011 Flood inquiry the government’s reply delegated responsibility to oversee change to entities that no longer exist (Emergency Management Qld – EMQ – is now called EM and is a service within QFES, the Department of Community Safety – DCS – now subdivided into the following entities QFES, Qld Corrective Services, Public Safety Business Agency – PSBA and Qld Ambulance Service – (which is now part of Qld Health).

Question 1

The answer to this is easy – there is no obligation to implement findings (recommendations) from an inquiry. They are just that … recommendations.

Question 2

Given there is no obligation question 2 may be unnecessary to answer as the obligation to implement measures comes from the government.  First, re-organising government departments may be part of implementing the recommendations, depending on what they say – so for example the abolition of Fire and Emergency Services Authority in Western Australia was giving effect to the recommendations of the report into the Perth Hills Fires of 2011 (Mick Keelty, A Shared Responsibility: The  Report of the Perth  Hills Bushfire February 2011 Review (Government of Western Australia, 2011), Recommendation 46).

Where recommendations relate to a task or function, and that task or function is transferred to a new or restructured agency, one would expect that agency to seek to apply the learning from the inquiry and that the government would require them to implement those recommendations the government had agreed to implement.

Finally in order to give effect to changes in structure, there will be provisions in the legislation that creates the new entity that says, in effect, any reference to the old entity is now taken to be a reference to the new one and things done by the old entitiy are now deemed to be done by the new one.  This is certainly the case with the Queensland emergency services legislation – see Fire and Emergency Services Act 1990 (Qld) Part 5 – Savings and transitional provisions (ss 155-205).

Conclusion

In conclusion, my answers are:

1. No, there is no obligation to implement recommendations, they are just that, recommendations.
2. If a government has agreed to implement recommendations, then that would be expected to apply even if the various authorities have changed. How that is done, and whether that can be described as an ‘obligation’ depends on the attitude of the government of the day and the terms of any legislation creating the new entity but generally speaking, transitional legislation does impose obligations and liabilities on the new entity.

 

 

This question comes from a paramedic educator who was asked, by a student, about immunisation for paramedics.

…  the student asked whether they’d be able to secure employment without the range of vaccinations commonly required by State Ambulance Services in Australia. For instance, MMR, Tetanus, Polio, Hep B/A etc etc.

The student indicated that they were an objector to vaccinations, and as such did not want to get them. They then indicated that if an Ambulance Service wouldn’t employ them because they weren’t vaccinated the student would be prepared ‘to take them to court as an ambulance service shouldn’t be able to force me to have vaccinations.’

Anti discrimination law

People like to think that all discrimination is illegal, but of course it is not.  To discriminate simply means to make a choice – or to quote from the Oxford dictionary (online) to ‘Recognize a distinction; differentiate’.  Employers (and potential employers) do that all the time when they decide who they will offer employment to, and who will miss out.

What is illegal is making that distinction or differentiating on certain grounds. Under Commonwealth law it is illegal to discriminate between people on the basis of disability (Disability Discrimination Act 1992 (Cth); sex (Sex Discrimination Act 1984 (Cth); age (Age Discrimination Act 2004 (Cth), race (Racial Discrimination Act 1975 (Cth) or ‘race, colour, sex, religion, political opinion, national extraction, social origin, age, medical record, criminal record, marital or relationship status, impairment, mental, intellectual or psychiatric disability, physical disability, nationality, sexual orientation, and trade union activity (Australian Human Rights Commission Act 1986 (Cth).    Similar provisions exist in state law – see

• Australian Capital Territory – Discrimination Act 1991
• New South Wales – Anti-Discrimination Act 1977
• Northern Territory – Anti-Discrimination Act 1996
• Queensland – Anti-Discrimination Act 1991
• South Australia – Equal Opportunity Act 1984
• Tasmania – Anti-Discrimination Act 1998
• Victoria – Equal Opportunity Act 2010
• Western Australia – Equal Opportunity Act 1984.

(Source: Australian Human Rights Commission, A quick guide to Australian discrimination laws, (u.d)).

But even so, discrimination is allowed if it goes to a person’s ability to do the job.  It will not be unlawful discrimination to refuse to employ a blind person as a truck driver – the question really is whether or not the matter that is being used to determine the person’s employment really is directed to the work and whether or not any impediments can be overcome with ‘reasonable adjustment’ (see Occupational Health and Safety and Discrimination (January 5, 2010)).

Implications

The first question to be asked is whether refusing to employ someone who refused a vaccination would be discrimination on prohibited grounds.  The only relevant grounds could be ‘political opinion’ and even then, I doubt that a person is refusing to make a political point, they just don’t want it. If there’s no unlawful discrimination, it would be hard to find a tribunal that would be willing to review a decision not to offer an applicant employment, but given the ambulance services (Northern Territory and Western Australia excepted) are government authorities it may be possible to seek a review under procedures to review government decisions and/or government employee appeals processes.   Those process will not be cheap, or easy.

Assuming that the person can find a tribunal that is willing to review the decision, the more critical question will be become ‘is having a vaccination is essential for the job?’  One can think of three reasons the ambulance service would want to vaccinate its staff:

1. To protect the staff from the risk of infection from patients;
2. To protect patients from the risk of infection from staff; and
3. To protect staff from the risk of infection from other staff.

It is well known that as an employer, an ambulance service has a duty to take reasonable steps to ensure that there is a safe workplace for employees (reasons 1 and 3 above) and that non-employees are not exposed to unnecessary risks (reason 2, above).    But can a persons’ choice be accommodated?

First much of the risk, as I understand it, can be reduced by appropriate barriers – gloves, eye masks, hand washing etc, but nothing is foolproof so vaccination adds another level of protection.   Do ambulance services require their staff to be vaccinated, or are vaccinations merely offered?  If the later one could not refuse to employ a person who failed to take up the offer.  If, on the other hand, having completed a risk assessment the ambulance service thought the only way to appropriate manage the risk was to require vaccination, then it becomes akin to PPE.

With Personal Protective Equipment, employers issue it and employees are required to use it.  The obligations under Work Health and Safety Laws (or Occupational Health and Safety in WA and Victoria) is strict – that is neither the employee or employer can contract out of it.   In simple terms an employee can’t say ‘I don’t like the PPE, I won’t wear but I’ll take the risk if I get injured’.  The employee simply can’t take on that risk – in those circumstances the employer could still be prosecuted if the employee was injured and the employee would still be entitled to no fault workers compensation.

Even if you think the ‘nanny state’ has gone too far when it doesn’t allow people to choose whether to wear PPE or not for their own good, no-one could refuse to wear PPE or otherwise follow procedures that are required to safeguard other persons.  Accordingly even if someone wanted to argue that an employee who was willing to accept the risk should be allowed to work without PPE, that could have no application of the purpose of the PPE was to protect other staff and patients.

As with a vaccination, if it has been determined that it is the only way to deal with the risk and no ‘reasonable accommodation’ can be made, then so be it.

Conclusion

Without going through the anti-discrimination legislation ‘chapter and verse’ my conclusion is that if a paramedic refused immunisations, and if the ambulance service required them, the ambulance service could refuse to offer employment.  If the matter were tested it would be up to the ambulance service to show the reasoning process to show why the vaccinations were required (as opposed to ‘recommended’) and whether or not some alternative adjustment was sufficient to cover the risk to the employees and patients.

If there had been a robust risk assessment process and it could be shown that the vaccination procedures were required in order to meet the obligations under work (or occupational) health and safety laws then a person who refused those vaccinations would not be a suitable candidate for employment.

This question comes from a Victorian:

… volunteer at an event first aid company, this company provides a range of event services from your basic first aid right up to your full medical field deployments which can have a greater capacity and scope than many rural emergency departments.

At events where we have a medical response team (staffed by a doctor & nurse or paramedic & nurse) or a field hospital which are staffed by a complete multidisciplinary team of doctors, RNs, paramedics, EN/EENs and First Responders, there may be times where we are unable to find a volunteer doctor or paramedic that can help staff the medical deployment, so we will hire a doctor through a locum service.

My question is what would happen if the locum was to be negligent? It is my understanding that an employer is responsible for vicarious liability of their staff whether paid or volunteer, however does that extend to external contractors such as a locum service?

The answer to that question would depend very much on the terms of the agreement and the actual practice.

First, some case law

In Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 the NSW Court of Appeal confirmed that the hospital was vicariously liable for the negligence of an honorary medical officer even though the hospital management could not actually tell a doctor how to practice his or her profession.

The issue arose again in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553.  In this case the plaintiff saw the doctor in his rooms, consulting him as a private patient.  The doctor was a visiting medical officer at the hospital which meant that in return for treating some public patients, he was given the right to admit private patient’s to the hospital and use the hospital’s resources (operating rooms etc) when treating private patients.  Mrs Ellis was a private patient.   In those circumstances the majority found that the hospital was not vicariously liable for the doctor as it was the patient, not the hospital, that engaged the doctor’s services.    Although dissenting, Kirby J said that the doctor was tied

… inextricably into the organisation of the hospital. True, he could not be directed on how to “hold the knife”. But neither could the other professional staff be so directed. He was integrated into the discipline and direction of the hospital. What he did in his rooms was his affair. But when he came into the hospital, he was part of the hospital. When working on its premises, he was part of its integrated medical team.

Finally, in  Hollis v Vabu [2001] HCA 44 the question for the High Court of Australia was whether Vabu Pty Ltd, a bicycle courier company, was vicariously liable for the negligence of one of its contracted couriers.  The couriers were independent contractors, not employees but the company exercised a great degree of control over their work.  Vabu set the rates of pay and allocated work and required them to wear the company uniform.  In the circumstances the degree of control and the incorporation of the couriers into the business of Vabu meant that Vabu was vicariously liable.

Implications

The implications of these cases are that the answer to the question asked depends on how the locum is incorporated into the event medical team. A patient comes to the event first aid providers looking for care from whoever the provider has on staff – they don’t get to choose their own first aid provider nor do they get to choose who provides the first aid.  If the person selected by the event first aid provider is the locum doctor, then it would still be the case that the provider is liable.  If the doctor is required to wear the corporate uniform, is directed as to where to work, subject to the requirements of the company, then that would be further  evidence that he or she forms part of an ‘integrated medical team’ and again that the event first aid provider will be liable.

If, on the other hand, the doctor is simply asked to be on site and keep in contact by radio or telephone, if he or she is not wearing the corporate uniform and if the first aiders treat a patient but say ‘we do have an on call doctor we can get to come if you want?’ and only call the doctor on the patient’s request.  And if the doctor bills the patient, not the event first aid provider, that would all suggest that there is an independent doctor/patient relationship and the event first aid provider would not be vicariously liable.

Added to that complexity will be the terms of any agreement between the doctor and the provider as to means of payment, entitlement to medicare rebates, who pays the tax and insurance etc.

The question of vicarious liability no longer depends simply on whether or not there is an employment relationship that subjects the employee to the employer’s control – ‘control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered.’ (Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1, [20] (Mason J)).

Conclusion

Whether the ‘event first aid company’ would be vicariously liable for the negligence of a locum doctor would depend on ‘the totality of the relationship between the parties’.  The terms of any agreement would be relevant as would the extent to which the contracting doctor is subject to the direction and control of the company and the extent to which he or she is incorporated into an ‘integrated medical team’.   I would imagine, in most circumstances, it would be impossible to identify the doctor as anything other than part of the team, so I would anticipate that in most cases vicarious liability would be established, but that is speaking in the most general terms.

If any case arose, the true nature of the relationship between the parties would need to be explored to resolve that issue.

In Ashford v The State of Western Australia [No 2] [2016] WASCA 222 a volunteer firefighter with a West Australian bushfire brigade had his sentence of imprisonment reduced by the West Australian Supreme Court of Appeal.

The offences

The appellant, Ashford, had entered a plea of guilty to three charges.  The first related to a false fire call on 29 August 2014 when the appellant rang triple zero to report a non-existent fire.

The second offence was a count of arson.  The appellant rang triple zero to report a fire which he then lit.   He was then part of the responding brigade that was rapidly on scene and extinguished the fire.  ‘The fire was approximately 10 sqm, and took less than 10 minutes to extinguish’ ([3]).

The final offence again related to a false fire call on 18 September 2014.

The original sentence

On 3 March 2016 District Court Judge Keen sentenced Ashford to 12 months imprisonment.

Judge Keen noted (at [10]) that Ashford may ‘have been suffering a major depressive disorder’ but a psychiatrist’s report said ‘there was no direct relationship between the appellant’s mental illness and his offending’.  The appellant had taken MDMA (ecstasy) and said, in an interview with police, that ‘he was ‘amped up’ on MDMA and is ‘an adrenalin junkie’, and probably lit the fire to get an adrenalin rush the time of the first offence’ ([14]).   In his favour was the fact that when he set the fire, Perth had received significant rainfall so the risk from the fire was greatly reduced ([11]).

His Honour did note the cost to the community from fire and also false alarms to the emergency services, something that the appellant was aware of given his role as a volunteer firefighter ([15]-[16]).   His Honour took the view that the appellants role as a volunteer firefighter made the offending worse – that is his volunteering was a factor that warranted a more severe, rather than a reduced sentence ([19]).   The appellant did however get a ‘discount’ for entering a plea of guilty rather than putting the state to the expense of a trial ([20]).

The appeal

The appellant appealed to the Supreme Court of Appeal arguing that the sentence was ‘manifestly excessive’ and that a non-custodial penalty should have been the sentence.  The Court of Appeal agreed.

The Court of Appeal reviewed the law that says that a penalty of imprisonment should not be imposed ‘unless that is the only appropriate sentencing option’ ([26]).   The judges (Newnes JA, Mazza JA and Beech J) said (at [37] emphasis added):

We agree, with respect, with the sentencing judge’s conclusion that the appellant’s offending, in all its circumstances and in his personal circumstances, called for a sentence of imprisonment. However, in our respectful view, the unusual features of the appellant’s offence placed it very much at the lower end of the range of seriousness of offending of this kind. That, combined with the appellant’s personal circumstances, meant that a sentence of immediate imprisonment was not open.

The unusual circumstances were:

• That the fire set by the appellant was lit on a day during which over 40mm of rain had fallen, and he called to report the fire at the time of lighting it, ensuring that their was a low risk of extensive damage.  ‘These aspects and circumstances of the offence meant that it was at or very close to the bottom of the range of seriousness of offences of this kind’ ([38]).
• The appellant had taken steps to take control of his life, he had sought psychological treatment, had moved interstate and secured employment and was supported by his employer.  He was remorseful and had cooperated with police and entered a plea of guilty.  ‘As the sentencing judge recognised, the risk of reoffending was negligible, and the need for personal deterrence did not carry any weight’ ([39]).

The court of appeal agreed that a sentence of 12 months was appropriate but the appellant had already spent time in gaol.  He was sentenced on 3 March 2016, appealed on 12 April and was granted bail, pending the appeal, on 22 April 2016 (Ashford v The State of Western Australia [2016] WASCA 81) so he spent from 3 March to 22 April in custody.    Taking that period into account, the Court of Appeal imposed a new sentence of 9 months’ imprisonment.  The new sentence was immediately suspended to allow him to continue his treatment and his new life interstate.

A suspended sentence is still a sentence of imprisonment, remains on the offender’s record and if the offender does commit any further offence during the period of suspension, he stands to be returned to prison for that offence (a bit like the ‘go directly to gaol’ card in Monopoly).

Discussion

The Court of Appeal did not address the appellant’s role as a volunteer, that is they did not say that it was either a factor in his favour, or a factor that aggravated his offending.  It appears that the most significant factor for the Court of Appeal was that even though deliberately setting a fire is a serious offence, this case was not one where it was intended to cause damage, rather it was lit in circumstances where the appellant was minimising the risk of extensive damage.  This put the offending at the low end of the scale and considering the other personal matters (discussed above) a suspended sentence was appropriate.

Given that, the only legal lesson one might draw from the case is that, in most cases – absent exceptional circumstances – a person convicted of deliberately lighting a bushfire, volunteer firefighter or not, can expect a gaol sentence.

At the start of my last post, State of Queensland Liable for Paramedic Negligence (December 22, 2016) I said I was aware of two other cases involving allegations of negligence by a paramedic and/or ambulance service.  I listed them as Ambulance Service of NSW v Worley [2006] NSWCA 102 and Neal v Ambulance Service of New South Wales [2008] NSWCA 346).    I confess I had forgotten another, earlier case, Metropolitan Ambulance Service v State of Victoria [2002] VSC 222.  I look back and see I’ve not previously written on this case (which occurred before I started writing this blog) but I’ll do it now as it makes for some interesting holiday reading.

What happened

On 21 September 1994 the plaintiff attempted to rob a taxi driver.  The driver, acting in self-defence hit the assailant around the head with a piece of wood.   The judge said (at [2]):

As a result of the incident, the plaintiff was allegedly rendered unconscious and suffered intercranial bleeding. Shortly after the incident, ambulance officers attended the scene and examined the plaintiff. Police officers took the plaintiff into custody, placed him in a divisional van and then in the cells at the Moorabbin Police Station. After being in custody for several hours, the plaintiff was taken by ambulance to hospital where he received emergency treatment. As a consequence of the custody and the alleged failure to receive timely treatment, the plaintiff’s initial injury was severely aggravated and the plaintiff suffered further injury, loss and damage, including brain damage, loss of cognitive function, impairment of motor function, speech, memory and concentration, epilepsy, psychological suffering, anxiety, depression, nervous shock, a total loss of earning capacity and medical expenses., causing head injuries.

The plaintiff sued both the Metropolitan Ambulance Service and the Victoria Police for negligence in the way he was treated.  The plaintiff’s case was settled for $550 000.

So why was it in court?

It was in court because the Metropolitan Ambulance Service (as it then was) and Victoria Police were arguing over which agency should pay – that is (at [5]): ‘Each defendant now contends that the plaintiff’s injuries were solely caused by the other defendant and that it is therefore entitled to a complete indemnity from the other defendant, alternatively each seeks contribution on the basis that the other bore the prime responsibility for the plaintiff’s further injuries.’  So the police blamed the ambulance, and the ambulance blamed the police.

Police were called to the scene at about 7.25pm.  The ambulance arrived at 7.36pm. When the ambulance arrived, ambulance officer Harries was given a briefing by Constable Toogood who had placed the plaintiff under arrest.   The details recorded in the ambulance case sheet were incomplete. The judge said (at [30], [38]-[39])

Harries did not record that the plaintiff had been hit about the head. His record is also inconsistent with evidence from others in a number of significant respects. For example, it is inconsistent with [Constable] Toogood’s evidence as to what he told Harries about the plaintiff being rendered unconscious…

After examining the plaintiff, Harries told the police that it was okay to take the plaintiff into custody and that he did not require any further medical treatment and was fit to remain in custody. The ambulance then left.

All of the police officers that testified emphasised that they had relied upon the advice of the ambulance officer that the plaintiff did not need medical treatment and was fit to remain in police custody

The plaintiff was taken to the police station at 8.47pm about an hour after the ambulance left.  An ambulance was again called at 11.20pm.  During those 2 ½ hours police observed that the plaintiff (at [40]-[47]):

• was unsteady and could not walk unsupported;
• defecated – twice;
• was asked to remove his clothes but he looked blankly at Toogood and another policeman who then removed his clothes for him;
• Was observed in a “coma position” lying on the floor;
• did not reply when spoken too;
• was checked every 10 minutes or so and was noted to be “asleep” and breathing loudly and had not moved his position.

At 11pm the police surgeon, Dr O’Dell arrived and found the plaintiff (at [47]-[48]):

… to be deeply unconscious (ie. unrousable) with slow breathing and pulse and a large area of swelling on one side of his face (in fact, it was the left side). His eyes were of real concern: one eye was fixed and dilated and the other one was a pinpoint, indicating to the doctor some disturbance in the head, such as a blood clot, exerting pressure – he was in a very serious condition. Dr O’Dell ordered an ambulance as soon as possible.

At 11.20 pm the same ambulance arrived. In due course the plaintiff was taken in the ambulance to the Alfred Hospital. At the hospital the plaintiff was found to be suffering from a fractured skull on the left side and, on the same side, an acute extradural haematoma, which caused the brain damage and injuries in respect of which he subsequently sued.

The judge agreed that the ambulance officers had been negligent.  He said (at [53]-[55]):

The very short time during which the ambulance officers were present has already been mentioned. As I have said, the total time spent by them at the scene was about six minutes. They arrived to find an alleged offender in police custody and quite possibly under the influence of alcohol or drugs. I consider that Harries approached the task with undue haste and with the presumption, provided no serious head injury was found, that the handcuffed offender should remain in police custody.

Harries may have failed to pay sufficient attention to what he was being told by Toogood. More significantly, having been told that the plaintiff had been hit about the head, I find that Harries negligently failed to make adequate or sufficient inquiries of the police or of Tuala about the plaintiff’s conscious state immediately after the blow or blows to the head. Instead it appears that he negligently relied on a report from some unidentified bystander. If Harries had ascertained, as he should have, that the plaintiff had lost consciousness for a short time, it is clear that the only appropriate decision would have been to take him to hospital.

However even given his assumption that the plaintiff had not lost consciousness, there were factors present which, I am satisfied, ought to have led Harries to decide that the plaintiff had to go to hospital. In the context of having been struck on the head, the plaintiff’s inability to answer simple questions and his unresponsive answers (together with his inability to stand up) raised a real question of impaired consciousness, as Harries conceded in his evidence. In my opinion, Harries was negligent in all the circumstances when he decided that the plaintiff did not need to go to hospital and when he advised the police that the plaintiff was fit to remain in police custody.

The police were also negligent (at [57]):

Clearly there were continuing breaches of the Police Operating Procedures in relation to the plaintiff while he was seemingly asleep in the holding cell. As a result of the ambulance officer’s advice, the police did not consider that the plaintiff had any serious head injury, but they did believe that the plaintiff was quite possibly intoxicated or drug affected. In those circumstances, the Police Operating Procedures required the responsible police officers to awaken the plaintiff and obtain a verbal response and if he could not provide a verbal response, medical attention had to be sought immediately. In my opinion, it was negligent of the police on each of the occasions when the plaintiff was noted as being “asleep” in the holding cell not to attempt to rouse the plaintiff and obtain a verbal response. The negligence is accentuated by other features which were present and known to police: the fact that the plaintiff had been hit around the head; the plaintiff’s earlier loss of consciousness; his nose bleeds; his loss of bowel control on two occasions; and his inability to stand or walk without assistance. Further, I think that it was particularly negligent of Gallagher to make no attempt to rouse the plaintiff when he cleaned him up at about 10.10 pm.

His honour thought the responsibility of the ambulance service was greater than that of the police.  He said (at [58] and [64]):

It seems to me that the culpability or blameworthiness of the MAS is perhaps a little greater than that of the police. The ambulance officer, Harries, acted with undue haste, made insufficient inquiries and, in any event, made an inappropriate and imprudent decision on the basis of such observations as were made by him. The police officers were initially reliant upon Harries’ advice. However the police were later involved in a continuous course of negligent conduct, by failing to attempt to rouse the “sleeping” plaintiff, over a period in excess of one hour…

Looking at the conduct of each defendant as a whole and in all the circumstances, I have concluded that, to the extent following, the MAS bears a greater responsibility than the State for the plaintiff’s ultimate injuries. I find that it is just and equitable that the contribution of the MAS should be sixty percent of the settlement sum (and of the State, forty percent) and I assess the amounts of contribution accordingly.

So the MAS had to pay 60% of $550 000 or $330 000; the State of Victoria (on behalf of the police) had to pay 40% or $220 000.   There would also have been costs orders with respect to this case but they were not reported in the decision.

What I find interesting

What I find interesting about this case is that it was allowed to proceed.  Under the Ambulance Services Act 1986 (Vic) as it then was, the Metropolitan Ambulance Service was a ‘body corporate’ ‘capable of suing and being sued’ (s 23(2)).  The ambulance service was ultimately accountable to the Minister through the Victorian Ambulance Board, the Chief General Manager and the Director of Ambulance Services.   The ambulance service may not have been a unit of government so it could sue and be sued in its own name, but it was essentially a government service.

Victoria police were a manifestation of the government hence proceedings against the police were against the State of Victoria.

The irony is therefore that the Minister responsible for the Ambulance service and the Minister responsible for the police service let their agencies take each other to court to publicly blame each other for this unfortunate outcome.    One must assume they were not both covered by the states’ insurer as that would make it even more farcical.  So, presumably there was a commercial insurer covering the ambulance service and today it would be the state managed fund covering police and they took their fight over contribution to the Supreme Court.  I imagine today that the Ministers would tell their respective chief officers to sort it out in private rather than waste resources, and goodwill, fighting the matter in public.

Vicarious liability

We can note, again, that there was no suggestion that either Harries or Toogood or any other ambulance or police officer was personally liable even though, there were ‘continuing breaches’ of relevant protocols and procedures.  Vicarious liability is a legal doctrine, not a sign of goodwill – if an employee is negligent it is the employer who is liable as this case again demonstrates.

Conclusion

As noted this is an old case and the facts and decision do not really advance the law.  I post this discussion to finish off my discussion on cases involving ambulance services in Australia and because I thought readers may be interested, if not amused, by the idea of the then Metropolitan Ambulance Service fighting Victoria Police, in court, over who was to pay for the plaintiff’s injuries.

 

 

 

 

 

 

 

 

 

 

I wish all my readers the very best for Christmas and the New Year.  For those working or volunteering with the emergency services over this period, I hope that it is a quiet time and you get to spend time with your families, not only on Christmas Day but also during the entire holiday period.  For myself and on behalf of my family and the broader community I thank all the members of the emergency service – whether volunteer or paid – for your service throughout the year and especially now.

Thank you to everyone who has contributed to the blog this year – those that have sent stories to me, those that have asked questions, those who have contributed through comments on the various posts and those that have shared the blog with friends and colleagues.  Thanks also to the Commissioners, Chief Officers and other senior executives who refer to the blog and share it among their service members.  This blog – via the WordPress site, FaceBook, Twitter and LinkedIn – regularly reaches over 3000 people and some posts have reached over 20 000 readers.  I hope the blog makes a valuable contribution by helping to explore and explain the law that applies to the work of the emergency services.

From January to June 2017 Australian Emergency Law will be coming to you from the Disaster and Development Network, a research centre at the University of Northumbria, Newcastle, UK where I’ll be spending a semester as a visiting academic.   Even though I’ll be on the other side of the world, I’ll keep my eye on legal developments in Australia and I look forward to continuing the conversation with my many ‘correspondents’.

So again, to all my readers, Merry Christmas and a Happy New Year.

 

Yesterday I would have said I was aware of two cases involving allegations of negligence by a paramedic and/or ambulance service (Ambulance Service of NSW v Worley [2006] NSWCA 102 and Neal v Ambulance Service of New South Wales [2008] NSWCA 346).  Today we can add a third, Roane-Spray v State of Queensland [2016] QDC 348 (21 December 2016).   (This decision was brought to my attention by solicitor Bill Madden who operates a health law blog – see ‘Paramedic Negligence’ (December 22, 2016) on Bill Madden’s Medical and Health Law Blog).

What happened

The plaintiff, Mrs Roane-Spray was on Lamb Island, Moreton Bay when she developed symptoms ‘of possibly having a transient ischaemic attack, a mini stroke’ ([12]).  A call was made to triple zero requesting an ambulance.  The nearest paramedic was at Russell Island.  He was transported to Lamb Island by boat, collected an ambulance that was stored there, and responded to the call.    It was agreed that Mrs Roane-Spray would be transported to hospital which involved driving her to the pier, loading her onto the ambulance boat, crossing to the mainland for transport by another ambulance to hospital.   The incident the subject of this claim arose when the Lamb Island paramedic was unloading the stretcher, with Mrs Roane-Spray on it, in order to transfer her to the ambulance boat. The first set of wheels attached to the stretcher locked down, but the second set did not, so when the paramedic pulled the stretcher from the ambulance, it tipped and Mrs Roane-Spray slid off suffering head, back and neck injuries.

In this case the facts were contested, ie the plaintiff and the treating paramedic did not agree on what had happened so the judge had to listen to the evidence from everyone including independent witnesses and consider what version of events seemed most likely.  There were discrepancies in the paramedic’s version.  The accident occurred in 2012 and came on for trial on 6 June 2016.  In that time, no doubt, the paramedic had attended many cases and may have had difficulties recalling all the details.  The plaintiff patient had probably only been involved in only one emergency response and even if not, the fact that one had left her with injuries would have made it more memorable.  There were other witnesses who gave evidence that was consistent with her version of events and she reported to treating doctors at the hospital that she had suffered injuries when being transported by ambulance and her injuries were consistent with her version of events. His Honour said (at [40]-[41]):

A consideration of the combined effect of all of these factors leads me to a conclusion that what actually happened is that, when the paramedic pulled the stretcher out and the second set of wheels did not properly deploy, the head of the stretcher fell to the ground before the paramedic was able to get control of the situation. That is, things happened essentially in the way described by the plaintiff. I therefore reject the paramedic’s evidence as unreliable…

The paramedic conceded that he should not have pulled the stretcher clear of the ambulance without confirming that the wheels near the head of the stretcher had locked into place.  That is also what is required by the manufacturer’s instructions, and consistent with Mr Smyth’s evidence [Mr Smyth was the Director of Operations for the Metro South Local Ambulance Service Network]. There was no real dispute on behalf of the defendant that, if events occurred in the way described by the plaintiff, that is if the stretcher was pulled out and the head of the stretcher fell to the ground, this involved negligence on the part of the paramedic, for which the defendant is vicariously liable…

The damages awarded exceeded $550 000.

So far a rudimentary case of negligence.  The paramedic owed a duty of care to his patient.  A reasonable paramedic would ensure that all the wheels had locked down before finally pulling the stretcher clear of the ambulance as required by standard practice and the manufacturer.  Failure to do that was a failure to act with reasonable care leading to liability.    From that point of the view the case will be of interest to the readers of this blog, but not legally important.   There are however two issues that were raised that warrant further consideration.

Application of an immunity clause

In many other posts, I have referred to ‘good Samaritan’ legislation.  Queensland led the way in this field with the Voluntary Aid in Emergency Act 1973 (Qld).    That Act was eventually repealed and the relevant provisions moved to Part 5 of the Law Reform Act 1995 (Qld).  Section 16 is headed ‘Protection of medical practitioners and nurses and other prescribed persons’ and applies to registered doctors, nurses and or members of a class listed in the regulations.  It provides that for those prescribed persons (not just anyone who offers to help) there is no liability if ‘the act is done or omitted in good faith and without gross negligence’ and ‘the services are performed without fee or reward or expectation of fee or reward’.

The Law Reform Act 1995 (Qld) remains on the statute books but is complemented by the Civil Liability Act 2003 (Qld) s 27.  That section says:

(1) Civil liability does not attach to an entity, prescribed under a regulation, that provides services to enhance public safety in relation to an act done or omitted in the course of rendering first aid or other aid or assistance to a person in distress if—

(a) the first aid or other aid or assistance is given by the entity while performing duties to enhance public safety; and

(b) the first aid or other aid or assistance is given in circumstances of emergency; and

(c) the act is done or omitted in good faith and without reckless disregard for the safety of the person in distress or someone else.

(2) Subsection (1) does not limit or affect the Law Reform Act 1995, part 5.

It can again be noted that the Queensland Act is unlike any other ‘good Samaritan’ Act as it doesn’t apply to everyone who might come to assist, only the entities, and the members of the entities, that are listed in the regulation (see Insurance for First Aiders (August 13, 2014)).  Further, unlike the Law Reform Act 1995 and the legislation in other states and territories, the Civil Liability Act 2003 (Qld) does not require that the action is undertaken ‘without fee or reward or expectation of fee or reward’.

I have previously said that despite having had good Samaritan legislation since 1973, I could find no cases where the legislation had been tested or anyone had tried to rely on it. At [42] the judge also said “I was not told of any decisions on s 27, and I am not aware of any.”  This case is now the first case, since 1973, that this provision, or any of the ones like it in the other Australian States and Territories, has been raised as a defence.

Protection under s 27 only applies to ‘…an entity, prescribed [or listed] under a regulation …’  One of the ‘prescribed entities’ for the purposes of s 27 is the “Queensland Ambulance Service established under the Ambulance Service Act 1991.”  The problem here was that the Ambulance Service Act 1991 (Qld) s 3A says ‘The Queensland Ambulance Service is established’.  Section 3B says:

The service consists of—

(a) the commissioner; and

(b) ambulance officers, medical officers and other staff members employed under section 13.

The Act does not say that the Ambulance service is a legal entity that can sue and be sued in its own name.   The Queensland Ambulance Service does not appear to have a separate legal existence but is an administrative unit of government (Administrative Arrangements Order (No. 2) 2016 (Qld)).    At [45] His honour said (emphasis added):

… for the present proceeding, it is common ground on the pleadings that the relevant paramedic was employed by the defendant [ie the State of Queensland… The defendant is therefore vicariously liable for the negligence of its employee. The defendant is an entity properly sued under the Crown Proceedings Act 1980: see s 8. The defendant [ie the State of Queensland] is not an entity listed in Schedule 2 to the Regulation. The short answer to the defence reliance on s 27 is that it does not apply to the liability of State of Queensland in the form of vicarious liability for its employee, the relevant paramedic, and therefore cannot provide a defence.

Had the defendant been ‘The Queensland Ambulance Service’ the result may have been different, but the Queensland Ambulance Service was not sued, and it would appear, cannot be sued.

I have in other posts made comment on the strict use that is made of these clauses in other contexts – see Board of Fire Commissioners v Ardouin (1961) 109 CLR 105; see also RFS Fatal Collision and S 128 of the Rural Fires Act (October 14, 2016).  In that post I said:

As Gummow J said … these provisions protect ‘the interests of a statutory authority which is given privileges in the nature of a monopoly for provision of a public service, at the expense of what otherwise would be individual justiciable rights’.  Denying the rights of a citizen is something that should only be done with care and clear words so liability exclusion clauses ‘should be strictly construed’

(See also Immunity Clauses, Power And Functions: Is There A Difference? (October 25, 2016) and the discussion that follows the post New Bushfire Legislation In The Northern Territory (December 5, 2016)).

Remember that in this case His Honour had found that Mrs Roane-Spray had been injured due to the negligence of a paramedic and that, as a result, she suffered injuries that were going to require over ½ million dollars of future care and medical treatment. (Only $21 850 was awarded for ‘general damages’ that is pain and suffering and non-economic losses, the balance was for past and future medical care and other expenses, not a windfall gain).

To have extended s 27 protection to the State of Queensland, even though the State was not a prescribed entity for the purposes of the Act, would have been ‘at the expense of what otherwise would be individual justiciable rights’.  It would not have saved the paramedics livelihood or home (see the discussion that follows the post A Duty to Provide First Aid to Work Colleagues (December 21, 2016)) as they were never at risk.   It would have saved the State of Queensland some money, cost Mrs Roane-Spray lots of money, and shifted at least some of the costs of her treatment and care onto her and her family, other parts of the Queensland Government and the Commonwealth through social security and Medicare.   And the state of Queensland, the defendant, was simply not a prescribed entity for the purposes of s 27.

Vicarious liability

That discussion leads to the issue of vicarious liability which is often discussed here.  There was no question that the State of Queensland was liable for the negligence of its paramedic employee.   It has been suggested that employers are only vicariously liable if the employee follows every rule and procedure (see Paramedic Registration, Insurance and the Role of an Employer (December 10, 2016)).  This case is a clear example to show that this is NOT the case.  This paramedic failed to follow the procedures of the service or the instruction manual. That’s not to say he was malicious or deliberately careless or grossly negligent, he made a mistake, he was negligent.  And vicarious liability means that it was his employer, the State of Queensland that was liable for the injuries caused.   Note too that not only was the paramedic not named as a defendant, at no time in the judgement does His Honour Judge McGill SC mention his name.

This was not personal and there is no value in making claims (as people do) that he wasn’t negligent because he was working ‘one man out’ or he was trying his best.  Mrs Roane-Spray was entitled to receive appropriate care from the ambulance service provided by the State of Queensland.  No service is perfect so, if in this case, she did not receive the care that she was entitled to expect (not perfect care, just reasonable care) then it was incumbent upon the agency to make good the loss and damage, that was significant.

What next?

This is the third case that I’m aware of where a state has been sued over the alleged negligence of a paramedic.  In each case the plaintiff won at first instance but in both Ambulance Service of NSW v Worley [2006] NSWCA 102 and Neal v Ambulance Service of New South Wales [2008] NSWCA 346 the decision of the trial judge was set aside by the Court of Appeal.   It remains to be seen whether or not Queensland will seek to appeal this decision, perhaps to argue that the judge was wrong in his interpretation of s 27 of the Civil Liability Act.

Conclusion

It is still the case that actions against Australia’s ambulance services are very rare given the number of patients they see each year.   This case does not set any special rules in relation to the duty owed by paramedics to their patients.  In legal terms, it is significant because, if the judgement stands, it indicates that listing the Queensland Ambulance Service as a protected entity under the Civil Liability Act is meaningless because the Queensland Ambulance Service is not a legal entity that can sue and be sued.    It may be that the State of Queensland will seek to challenge that decision or it may just rework the Civil Liability Act.

 

 

 

 

 

 

 

 

 

 

 

 

The National Institute of First Aid Trainers (NIFAT) runs an ‘Ask an Expert’ page and my name appears there with the proviso that ‘Answers to questions will be posted on his public blog – Australian Emergency Law ..’   This question has come to me via that path:

If you are not a designated First Aider within your workplace do you owe a duty of care to your fellow workmates to perform first aid. Does this apply in the Education and Care setting? I know they have a duty of care to the students, children but do owe one to each other?

The answer must be that we all owe a duty of care to our workmates – this will be true in ‘the Education and Care setting’ as in any workplace.    To confirm that this must be true, ask yourself – “if a work mate was clearly in need of assistance would it be ok to ignore them?”   If you think the answer is ‘no’ (as I do) then there must be a duty to do something, but what that something is would depend on all the circumstances.  It may be no more than to initiate the workplaces emergency procedures – eg call the first aider or an ambulance, but there must be a duty to do something.

I’ll use as the NSW Act as my example as it’s based on the model Act and is similar to the Act in each state and territory other than WA and Victoria.  The Work Health and Safety Act 2011 (NSW) says that it is the duty of every Person Conducting a Business or Undertaking (a PCBU) to take steps to ensure the health and safety of those at work (s 19). As part of that duty there must be first aid and emergency procedures in place (Work Health and Safety Regulations 2011 (NSW) ss 42 and 43).   The PCBU can’t be everywhere, and if the PCBU is a company it can’t actually be anywhere (a company is a legal entity but it doesn’t have a physical existence).   The PCBU must depend on employees to implement relevant policies and act with due regard to their own safety.  It is a workers’ duty (s 28) to take reasonable care of their own safety and to:

…

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

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

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

Failing to assist a colleague would not be ensuring that the worker’s ‘omissions do not adversely affect the health and safety of’ their colleague.   To the extent there are first aid and emergency facilities and procedures in place there is an obligation to apply them – so call the first aid person.

Equally there may be a common-law duty if the colleague in need of assistance is in such a position that no-one else is likely to come and find them.  In R v Taktak (1988) 14 NSWLR 226 the accused was charged with manslaughter by criminal negligence when the failed to provide care for a person suffering a heroin overdose.  The accused had taken the victim from a party to his own home and by so doing ensured that no-one else would get assistance as no-one else would know she needed assistance.  Although he made some effort to assist her, he failed to call an ambulance and she died.    The accused was ultimately acquitted on the basis that, given he had no relevant training or experience, his conduct did not meet the necessary threshold of ‘gross’ negligence, but that did not deny that he owed the victim a duty of care.    A co-worker too would owe a duty of care – a duty to do something – particularly if they were aware that their colleague needed assistance in circumstances where they realised that if they didn’t call for help, no-one else was going to.  For example, assume that there are two people working in an office or remote location, and one becomes ill.  The other worker couldn’t just walk away and leave them knowing there is little or no chance anyone else will find them.  It may be different if you were working on a main thoroughfare but even so I don’t think anyone would find it ‘reasonable’ to simply walk away from, or ignore, a sick or injured workmate.

Implications

The use of the term ‘duty of care’ brings up the law of negligence.  If a worker does owe some duty to their workmate and fails to act reasonably in response, then it would be the employer that was liable both because they are vicariously liable for the negligence of an employee and for failure to ensure that an employee knew what to do in response to an emergency and that appropriate emergency procedures were in place and understood.   Suing the employee personally would only be relevant if it could be shown that they acted out of malice – ie they wanted to see their workmate suffer.

As I’ve noted however there may be a duty under the Work Health and Safety Act and if it can be shown that the worker failed to implement the work health and safety policies eg by ringing the workplace first aider or an ambulance, and again did so deliberately, there could be a criminal prosecution.

In extreme cases, such as were the accused was the only person who could call for assistance because he or she was the only person who knew where the victim was and that assistance was required, there could be criminal prosecution if the accused died (Crimes Act 1900 (NSW) ss 18 and 24) or suffered grievous bodily harm (s 54).

Conclusion

The question asked was “If you are not a designated First Aider within your workplace do you owe a duty of care to your fellow workmates to perform first aid?”   It may not extend to an obligation to ‘perform first aid’.  If there is a minor injury it can wait for the arrival of the first aid person; if it’s life threatening the person may not know what to do.  There must however be a duty to do something – at a minimum to call for assistance.

Regardless of the legal niceties as to what the duty owed to a colleague would require, it would be a pretty unpleasant workplace if people took a view that they wouldn’t help, even if they could, if they didn’t have to.  If a person who was trained in first aid saw a workmate collapse but refused to provide CPR on the basis that ‘it’s not my job; they don’t pay me to do that’ you would have to think there is something very wrong in that workplace.  if I were a WorkSafe Inspector I’d be working with the PCBU to see what is it about their workplace culture that made it so toxic as to be dangerous, how had they contributed to that attitude and what were they going to do to change it.

I shared the link to the story on the ABC on the FaceBook page for this blog.  There have been a number of comments on the story as well as some questions sent to me so this post will try to deal with those as well as give some more details.

The gist of the story (‘Body camera trial for Victorian paramedics as public aggression‘ ABC (Online) 18 December 2016) is that:

Victorian paramedics will wear body cameras in a trial program designed to better protect ambulance workers, as thousands of cases of violence and aggression towards them are reported each year.

Up to 150 paramedics in Melbourne’s metro west region, including the CBD, will take part in the trial which follows a successful pilot by Victoria Police.

The Premier’s media release says, inter-alia:

Similar to cameras worn by police, the cutting edge equipment will record incidents only where paramedics are in danger. It will not record all emergency cases.

Vision from the camera could be used by police for investigations and prosecutions of assault against paramedics. All patient health care details will be de-identified, protecting patient privacy.

Questions asked about the trial relate to issues of patient privacy and consent.   All of the concerns raised are summed up in this email from a Victorian paramedic:

… the use of cameras makes me uncomfortable on a number of fronts.  First of all, I am not convinced that cameras will reduce occupational violence (especially given the presence of police in the quoted incident did not).  I am sure they will make prosecution easier, however that is a separate issue.  I am concerned though, about patient privacy, data privacy, how the footage might be used in other contexts, and most importantly about patient consent to be filmed.

The police trial

When the use of body worn cameras by police was announced, it was reported (‘Victoria Police to trial body cameras’, The Age (Online) December 24 2013) that:

Cameras will only be switched on to record incidents where police members feel it is in the public’s interest to do so and will not be used to capture general day-to-day activities…

Under the trial, recordings are not compulsory and are at the discretion of the members wearing them.

Let us assume similar rules will apply to paramedics.

Will the use of cameras reduce violence?

They might if people actually think they are on camera but people who attack paramedics probably aren’t thinking that clearly.  Paramedics may recall that they are on camera so they may modify their behaviour if they were tempted to abuse or hit someone.   To use an appropriate analogy, however, this is really the ambulance at the bottom of the cliff, rather than the fence at the top.  Video evidence of assaults against paramedics may help prosecute an offender, but that is still ‘after the event’.  As a correspondent says ‘I am sure they will make prosecution easier, however that is a separate issue’ to preventing the violence in the first place.

And if you think successful prosecution of one offender is likely to effectively deter others, you have more faith in the criminal justice system than I do – see Responding to Violence against Paramedics (February 11, 2015).

Consent

The relevant law here will be the Surveillance Devices Act 1999 (Vic).  A surveillance device may be a ‘data surveillance device, a listening device, an optical surveillance device or a tracking device’ and includes ‘a device that is a combination of any 2 or more’ of those devices.   An ‘optical surveillance device is ‘any device capable of being used to record visually or observe an activity…’.  A ‘listening device’ is ‘any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation…’ (s 3). Assuming that the body cameras worn by police and paramedics records vision, sound or both, it is a surveillance device.

With respect to the use of a listening device ‘… a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation’ (s 6).   A similar restriction applies to the use of an optical surveillance device.

A ‘private activity’ is:

… an activity carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be observed only by themselves, but does not include—

(a)          an activity carried on outside a building; or

(b)          an activity carried on in any circumstances in which the parties to it ought reasonably to expect that it may be observed by someone else;

A ‘private conversation’ is

… a conversation carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves, but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it may be overheard by someone else;

The obligation to obtain the consent of the parties is relevant if the person doing the recording is not a party to the conversation.  Activity inside an ambulance must fit the definition of a private activity and private conversation.   In those circumstances, the Camera’s worn by paramedics will largely be recording conversations and activities to which the paramedic is a party, ie conversations and interaction between the paramedic and someone else in which case the recording may be made without the need to obtain the patient’s consent.

Where items are being recorded in public, eg the paramedics are treating a person on the street and the aggression is coming from third parties, then the recording is lawful if the actions of the aggressor as ‘outside a building’ or given they’re in public they may reasonably expect that they may be observed by others.

Intended and unintended consequences

As correspondents have noted there could be unintended consequences. The concern about unintended consequences is not unique to the use of cameras by paramedics – see Heather Douglas and Leigh Goodmark, ‘Beware the unintended consequences of police-worn body cameras’, Sydney Morning Herald (Online) September 30 2015.

Where a recording has been made ‘a person must not knowingly communicate or publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device’ (s 11) so the recording captured by the cameras cannot be published on YouTube.    But the recording may be released ‘in the public interest’ or ‘… in the course of legal proceedings or disciplinary proceedings…’ (s 11(2)(b)(1) and s 11(2)(c)).      Releasing the video where it records evidence of an offence may be justified in the public interest (s 11(2)(b)(1)).

The use of the video and/or audio in ‘legal or disciplinary proceedings…’ (s 11(2)(c)) may be more controversial.  Using it to bring evidence into legal proceedings against a person who has assaulted a paramedic is the clear intention of the pilot but one would also expect that the video will be available in disciplinary proceedings against the paramedic.  And that is how it should be.

Although I can’t point to data, as I understand it when police starting recording interviews with suspects, legal issues arising out of allegations of misconduct were largely removed.  Where an allegation was made and it was shown that there was no substance to it, the matter resolved.  Equally where the recordings substantiated the allegations issues could also be resolved without the need for complex legal proceedings and contested evidence.  A win for everyone.  Equally here; although the intention is to capture those that assault paramedics, it will also work in other ways.  If a paramedic, to quote a commentator on my FaceBook page, does tell a patient ‘too go do an overdose’ that too will be captured and available.

Equally consider the case of Police v Wililo.  This was a case where Mr Wililo was accused of assaulting NSW paramedics.  The issue turned on what was said and done in the ambulance (see Magistrate O’Shane Dismisses Case Against a Man Accused of Assaulting a NSW Paramedic (January 23, 2012) and Case Of Assault on a NSW Paramedic Returns to the Local Court (July 2, 2012)).  Had there been video recording that may have assisted the paramedics and police, or it may have assisted Mr Wililo, either way it would no doubt have avoided significant time and money to have contested evidence about who said and did what to whom.

The video evidence will also, no doubt, be available in other legal proceedings. One commentator said ‘I’m more worried about the lawyers and insurance companies wanting them as evidence if it all turns pear shaped or the patient dies and the family wants to sue’ and no doubt that will be the case.  There are some important qualifiers here though.  Lawyers and insurance companies wanting evidence already access ambulance case sheets.  This will be no different.  By agreeing with my correspondent I’m not agreeing with the implied suggestion that this will increase law suits against paramedics (law suits that are incredibly rare).  But the evidence will be relevant in other actions.  For example, assume that a defendant wants to deny that their negligence caused the injury and that the plaintiff suffered the injury by other means or at a different time.  Evidence of what the patient told the paramedic about the accident, and the treatment given, may support either the plaintiff or the defendant’s claim so of course the parties will want to see it.  Again that may well encourage settlement.  If it’s clear that the history and treatment are consistent with the plaintiff’s version of events, the defendant will settle.  On the other hand, if they are inconsistent, the plaintiff may withdraw the claim.

Another benefit may be that the use of the camera will mean paramedics do not need to attend court.  If the issue is what was said or done in the ambulance, a recording may prove to be better evidence than trying to recall what was said and done some time later.  That brings me to another comment via FaceBook –

I’m assuming controls would be in place, such as the cameras being wiped at the end of the shift if no incidents occur. Or even have them set to a 1 hour loop with a manual incident lock function. These could be used to reassure patients.]

You couldn’t afford to wipe the contents at the end of a shift or after 1 hour as you don’t know what will be significant later.  You may determine that there was ‘no incident’ to find, three years later, an issue has arisen.    Consider, for example, a patient who is treated and later dies in police custody giving rise to a death that is reportable to the Coroner (Coroners Act 2008 (Vic) s 11). The paramedic doesn’t know, at the end of the shift, that this is going to be a matter for the coroner, so wiping video at the end of the shift would be problematic.

The ‘voluntary’ use of recording is also problematic.   As noted above, when the trial with police was introduced it was said ‘Cameras will only be switched on to record incidents where police members feel it is in the public’s interest to do so’ and ‘recordings are not compulsory and are at the discretion of the members wearing them’.   Where there is an absence of a recording, particularly if the patient or someone else is making an allegation against the paramedic, the absence of a recording may be problematic.  Where there is a record keeping system that is part of the ‘business’ (which would include an ambulance service’s business) then an entry in the record is proof of what happened.  To put that into context, if the normal practice is to record the administration of drugs on a patient’s case sheet, an entry showing that the drug was administered can be used to prove that the drug was in fact administered. On the other hand, if one would expect the drug to have been given, the fact that this is NOT recorded is evidence that the drug was not given.

Hopefully readers’ can see the issue here.  If the use of the cameras is voluntary, and up to paramedics to decide when to turn the camera’s on, the absence of a recording may be used to suggest for example, that no assault occurred (“if there was an event, you would have turned the camera on”) or if the allegation is against the paramedic, they deliberately didn’t record the interaction (“you wanted to abuse my client, but you didn’t want to record it, so you turned the video off, didn’t you?”).

What’s to be done?

The obvious thing to do is to ensure that the use of the cameras is appropriately monitored and regulated.  In his paper The Case for (and against) Police Body-Worn Cameras (Police Accountability Project, 2015), Kaleb Cox says:

Regulations need to specify when and under what circumstances the cameras should be turned on and off, how and where the video data is to be stored and how and under what circumstances it can be accessed for complaint, disciplinary or legal purposes by both police and the public.

Fears of police selectively using their body cameras may need to be eased by legislative assurances that BWCs will be used in a fair and uniform way.

So, given the paramedic trial is to be based on the police experience, what do the police regulations say?  Interestingly, and problematically, neither the Victoria Police Act 2013 (Vic), the Victoria Police Regulations 2014 (Vic) nor the Victoria Police Code of Conduct – Professional and ethical standards make reference to the use of body cameras.  There is probably reference to the use of cameras in the Victoria Police Manual but I am unable to readily access that publication.  To again quote Kaleb Cox:

The lack of regulations framing the usage of police body cameras may also present other problems. Even if all officers begin to wear BWCs, without adequate regulations from Parliament there remains the potential for misuse and the expansion of BWC far beyond the stated goals of accountability.

The same must be true if paramedics start using cameras without adequate regulation.  In the absence of regulation it will be up to law enforcement and Ambulance Victoria (in the first instance) to determine when and how the cameras may be used but it will, if ‘push comes to shove’ be a matter for courts and judges to develop rules, practices and guidelines if the Parliament and Government will not.

Conclusion

A number of correspondents have raised concerns regarding the use of body cameras by paramedics.  The stated intention is to use the recordings to combat violence against paramedics.  Cameras are unlikely to reduce violence thought they may make prosecutions easier.  Even so concerns about the broader use of the recordings and issues of patient privacy are well founded.  One would hope that that the Government would consider this issues and regulate the use of the cameras.  That does not appear to have been done with respect to police so one might infer it is also unlikely with respect to paramedics.  On the other hand, if there has not been significant issues raised by the police use of video, it may be concluded that the benefits outweigh the potential harms.  That remains to be seen.

A member of Fire & Rescue NSW has a question concerning damage caused during a rescue.  My correspondent refers to the Fire Brigades Act 1989 (NSW) s 38 then says:

I’ve been told by a more than one person within the organisation that in relation to rescue incidents we’re covered for damage to property under the fire brigades act. I understand that under section 7 of the of Fire Brigades Act we’re authorized to take measures anywhere in the State for protecting life and property regardless of the presence of a fire or hazardous materials incident.

In the last 2 weeks … Fire Station has attended two electrocutions, the first was a workmen inside the ceiling and the second was a workmen on the roof. Following the first incident a discussion was held about what we would do and options of enlarging the man hole cover to the roof space or cutting a second access hole if the causality was situated a distance away from the man hole were proposed. In such a situation where damage was caused to a property in an effort to preserve life would this be covered under section 38 of the Fire Brigades Act or some other section of legislation?

Damage done by a fire brigade is deemed to be damage caused by fire

The Fire Brigades Act 1989 (NSW) s 38 says:

(1) Any damage to property caused by the Commissioner, the officer in charge at a fire or a hazardous material incident, any member of a fire brigade (including an interstate fire brigade within the meaning of section 26) or any member of a community fire unit in the exercise in good faith of functions under this or any other Act is to be considered to be damage by fire for the purposes of any policy of insurance against fire covering the property.

(2) This section applies only in respect of damage to property caused in the exercise of a function to protect persons from injury or death or property from damage if those persons are or the property is endangered by fire or endangered by the escape or likely escape of hazardous material.

Similar provisions apply to the Rural Fire Service (Rural Fires Act 1997 (NSW) ss 28 and 72).

The existence of these provisions are easy to explain.  Fire brigades have extensive power to do all sorts of damage in the course of fighting a fire (see for example Fire Brigades Act 1989 (NSW) ss 13 and 17).    As far back as 1609 it was said ‘for saving of a city or town, a house shall be plucked down if the next be on fire’ (The Case of the King’s Prerogative in Saltpetre (1609) 77 ER 1294, 1295).   Further firefighting causes its own damage – Fire brigades have to force entry, cut holes to access the seat of the fire and the application of water adds its own damage, so a room may be flooded and goods damaged by the fire suppression.  The public good in putting out the fire, and therefore stopping it from spreading justifies these actions and it is good public policy to avoid debates about whether the damage was caused by the fire or the fire brigade.  Section 38 (and its equivalent in all fire brigade legislation) says that damage done by the fire brigades in the course of dealing with a fire (and now, at least in NSW, a HAZMAT incident) is deemed to be damage done by fire.  If the owner of the damaged property is insured for loss caused by fire they are also insured for loss caused by the actions of the fire brigade.  If they have no insurance they wear the all the losses.

State Emergency and Rescue Management Act 1989 (NSW)

My correspondent’s question however relates to rescue.  In NSW rescue management is governed by the State Emergency and Rescue Management Act 1989 (NSW).  Critical provisions of that Act are:

• Rescue is defined as ‘means the safe removal of persons or domestic animals from actual or threatened danger of physical harm’ (s 3).
• NSW police are ‘responsible for co-ordinating rescue operations and for determining the priorities of action to be taken in rescue operations’ (s 50).
• For each area there is an accredited rescue unit (see State Rescue Board Summary of Accredited Land Rescue Units – As at June 2015). It is an offence to ‘operate rescue unit or rescue vehicle without accreditation’ (s 53).
• Agencies, like NSWF&R and NSW SES do not have to be accredited to perform their statutory functions (State Rescue Board, New South Wales State Rescue Policy (3rd Edition Version 3.5), [3.41] so the SES does not need accreditation to do flood rescue (State Rescue Board, Flood Rescue Policy (August 2009), [12]). Equally NSWF&R do not need accreditation to rescue people from danger caused by fire or a hazardous materials incident.
• Any damage done by ‘a senior police officer’ or ‘a person acting on and in accordance with a direction given by … a senior police officer …’ under s 61(1) – Power of police to take other safety measures – is deemed to be damage caused by the emergency (s 62A(1)(b) and (c)).
• When an emergency service organisation realises that a ‘rescue’ is required, they are obliged to notify police (s 51).

(As an aside, s 51 is problematic given the broad definition of ‘rescue’.  Every time an ambulance crew pick someone up of the street, or an SES volunteer assists a person into a flood boat, they are removing a person from danger of physical harm but it can’t be assumed they notify police.  Equally every time a fire officer assists a person from a burning building they are conducting a rescue, but in that case it’s probably the case that the police are there too.  Let us put aside, however, questions on the obligations imposed by s 51 and return to the question at hand).

My assumptions

Let us assume that in the situation nominated by my correspondent, there was no risk of fire. This would of course depend on the facts, and I can imagine an electrical accident may trigger an automatic fire alarm and create a risk of fire so one could have detailed and technical decisions about whether it’s a fire call, but let us assume, for the sake of the argument that there was no risk of fire.    Let me further assume, for the sake of the argument, that these situations arose when NSW Ambulance were called to the scene, realised that they couldn’t access the person and called for ‘rescue’ to assist and NSWF&R were the appropriate accredited rescue unit despatched by police to assist with the rescue.

My assumptions are summarised as – this is not a fire call, there is no threat of fire or hazmat so s 38 doesn’t apply.   This is a rescue within the meaning of the State Emergency and Rescue Management Act 1989 (NSW) and Fire and Rescue NSW were the relevant accredited rescue unit.

Discussion

The State Emergency and Rescue Management Act 1989 (NSW) doesn’t specifically empower a rescue squad to do anything. There is nothing in the Act that says a rescue squad can do damage, or cut open any receptacle or do anything else to complete their rescue, but rescue squads do that sort of thing all the time – just think of using the ‘jaws of life’ to cut the roof or doors off a car.    The power to do that must come from the common law of necessity and/or be implied by the Act that provides for accredited rescue units, and prima facie, rescue units must be able to do what they are accredited, and by implication, trained to do.  And if rescue training involves cutting open ceilings, or cars, by implication there is a power to do that.

There can be no liability that attaches to the member of a rescue squad or the agency (s 59) but that doesn’t answer the question of whether or not the damage done by the rescue squad is deemed to be damage done by the relevant hazard that caused the emergency, and the need for rescue, in the first place.

At the scene of an emergency, a senior police officer (that is ‘a police officer of or above the rank of sergeant’ (s 60KA)) ‘may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons … from injury or death … direct … the taking possession of, and removal or destruction of any material or thing … that may be dangerous to life … or that may interfere with the response of emergency services to the emergency” (s 61(1)). Any damage done by ‘a senior police officer’ or ‘a person acting on and in accordance with a direction given by … a senior police officer … ‘ under s 61(1) is deemed to be damage done by that emergency (s 62A(1)(b) and (c)).  In that context emergency means ‘fire, flood, storm, tempest, explosion or other risk, contingency or event’.  This event is not fire, flood, storm, tempest or explosion but it is some ‘other risk, contingency or event’.  Further, for the purposes of that Act, an emergency is (emphasis added):

… an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:

(a) endangers, or threatens to endanger, the safety or health of persons …

being an emergency which requires a significant and co-ordinated response.

This ‘event’ was an ‘accident where in each case, the safety and health of the workman was endangered and if ambulance, police and the fire brigade were in attendance, and police were coordinating rescue as required by s 50, that sounds like ‘an emergency which requires a significant and co-ordinated response.’

It’s hard to imagine that in the scene described a police sergeant would be standing there telling the firefighters where to cut.   Even so, given that police are in charge of coordinating the rescue, the fact that the brigade have been called upon to do the rescue and are acting with the knowledge of police could, I think, give rise to an implied direction to take possession of and destroy the ceiling in order to effect the rescue.  This is somewhat of a ‘long bow’ as there may well be at many rescues no senior police officer and the firefighters are not really thinking they are acting under the direction of police but it’s an argument to say that ultimately the damage was done by the ‘emergency’ (however described).

The terms of any insurance policy

But does that help? Only if the building owner had insurance for the relevant emergency or damage to the building.  And that is, I think the crux of the matter.  If the building is insured, it is probably insured for loss due to fire, earthquake, flooding and the like, and also for deliberate damage so if a vandal smashed up the ceiling, insurance would probably cover it.  If a firefighter smashes up the ceiling it’s the same thing from the insurer’s point of view so I would have thought if you were insured for property damage it’s not going to matter whether the damage was done deliberately by a criminal or deliberately by a rescue squad – the insured event – damage to the building has occurred.  On the other hand, there may be an issue if the insurance excludes damage done with the consent of the owner, as a rescue may be ‘with consent’.  The ultimate answer will depend on the terms of the insurance.

With respect to cars, it’s not going to be an issue.   If the car is insured and runs into a tree, it’s a total loss even before the rescue squad cut the roof off, but it may not be so clear if the car was in perfectly good condition before the rescue squad was called – see Mark Reddier, ‘Woman falls from balcony in Sydney, then has to be cut from car’ ABC News (Online) 8 December 2016).  Even then I would expect an insurer would be unlikely to quibble but you can never know.

In either case, if the owner the building or the car had no insurance then they will wear the loss for the damage caused during the rescue.

Conclusion

My correspondent asked ‘where damage was caused to a property in an effort to preserve life – [that is effect a rescue] would this be covered under section 38 of the Fire Brigades Act or some other section of legislation?’

The answer is:

• The damage done would not be deemed to be damage done by fire because the risk to the person was not caused by ‘fire or endangered by the escape or likely escape of hazardous material’ (Fire Brigades Act 1989 (NSW) s 38).
• The damage done may be deemed to be damage done by ‘the emergency’ if the action taken was done at the direction, either express or implied, of a senior police officer (State Emergency and Rescue Management Act 1989 (NSW) ss 61(1) and 62A(1)(b) and (c)).
• In any case, whether the damage is covered by the owner’s insurance policy would depend on the terms of the policy.

Post script and mea culpa

A much shorter version of this discussion appeared on the Facebook page associated with this blog as a brief commentary on the situation described in the article ‘Woman falls from balcony in Sydney, then has to be cut from car’.   In that discussion I had concluded that given the rescue was performed by the fire brigade and that they were exercising, in good faith, functions under the State Emergency and Rescue Management Act 1989 (NSW), s 38(1) would apply and the damage done to the car would be deemed to be damage done by fire.

In giving that short commentary I failed to identify s 38(2) which says ‘This section applies only in respect of damage to property …  if those persons are or the property is endangered by fire or endangered by the escape or likely escape of hazardous material’.  It means the conclusion I expressed there was wrong and I’ve deleted my commentary from that page.

Today’s question caused me to look at the issue in more detail, hence the conclusions above.

This discussion flows on from an earlier discussion – Professional Indemnity Insurance for NSW Paramedics (January 30, 2016).  A correspondent has written to me regarding a discussion taking place on a FaceBook page with respect to nurses.  The issue was raised when a newly registered nurse asked if they should join the union and the issue of Professional Indemnity Insurance arose.  My correspondent said:

This might impact future paramedics so thought it worth passing on for your input/ comment.

Discussion in this thread about union membership turned to professional indemnity insurance. Lots of opinions why you need it and what AHPRA guideline imply. From what I read with previously though, vicarious liability is not dependent on whether you perform correctly or not but the fact that you are employed.

I won’t pass the link to the discussion as it is a nurses’ discussion and they may not want others joining in (though I could go there so it’s not a private group) but a summary of some of the comments are:

• … our employer usually provides PI insurance…don’t let unions scare you into thinking otherwise…better to spend your money on a professional back up and education.
• If you work within your scope of practice you’re covered by the hospitals indemnity insurance
• [That’s] not going to happen. If you don’t follow protocols and procedures 100% they will not cover you. If it’s you against a medico, you can forget it.
• …but if you’re not following protocols and procedures then you’ve done the wrong thing, so even your own personal indemnity insurance won’t cover that
• … say for example you cause injury to a patient. If the hospital say you weren’t wearing correct footwear ( for example Velcro instead of lace ups), they can say you weren’t in the correct uniform and may not cover you. They will do whatever they can to not cover you. And if there’s ever an issue with you and a medico, they will cover the Medico…

The relevance to paramedics is that it has been announced that paramedics will, by 2018, be brought under the Health Practitioner National Law.  This is the law that governs 14 other registered health professionals including doctors and nurses.  They are all required to carry professional indemnity insurance but where they practice solely as an employee they can rely on the cover that is necessarily provided by their employer.

An employer is vicariously liable for the conduct of its employees.  If the employee is negligent the employer is liable.  That is not something employers do because they’re nice, it’s the law.  So, claims that ‘If you don’t follow protocols and procedures 100% they will not cover you’ are just wrong.  If you don’t do anything wrong, there is no negligence and so no issue of liability.  Further the example of you weren’t wearing correct footwear (for example Velcro instead of lace ups), they can say you weren’t in the correct uniform and may not cover you’ is also wrong.  That would simply not be an issue.  The plaintiff sues the employer alleging the nurse was negligent, they must show the negligence caused the harm (the footwear will be irrelevant) in which case the employer is liable.

Further claims that ‘but if you’re not following protocols and procedures then you’ve done the wrong thing, so even your own personal indemnity insurance won’t cover that’ is also wrong.  PI insurance is there to shift liability but it only works if it does so when there has been negligence.  If your car is insured and you cause an accident that is when the insurance is relevant – if you are at fault they pay out.  If they didn’t the policy would be worthless.  The same is true for PI insurance. The insurer collects a premium from everyone on the assumption that most people won’t negligently insure their patient or client, but some will and the insurer makes good that loss.  They ONLY pay out when the insured has done the wrong thing, or failed to follow ‘protocols and procedures’.  If you think they won’t pay out in those circumstances then there’s no point paying for the policy.

So assuming the same registration rules apply to paramedics (and they are likely to), paramedics will need to show that they have PI cover but if their practice is solely as an employee that will probably be sufficient.

The other issue though is that this covers only liability to a patient who is injured.  Personal PI insurance, and or union membership, usually offers much more. In particular, vicarious liability will mean that one’s employer is liable to pay damages to an injured patient, but it will not provide assistance if the nurse/paramedic is subject to professional discipline or if their employer tries to take disciplinary action.  Having your own insurance, or being a member of the relevant union, would provide assistance there.

Do employed nurses, or paramedics, need their own PI or to join their union?   The answer is probably not for registration purposes, but their insurer or union may offer protection far beyond what is captured by the doctrine of vicarious liability and the individual may think that is well worth the cost.

And for the final words:

• “You don’t get me, I’m part of the Union”
  https://www.youtube.com/watch?v=KdOCWUgwiWs
• “… What they forgot to kill
  Went on to organize”
  https://www.youtube.com/watch?v=n8Kxq9uFDes

 

 

It has been reported that the Acting Commissioner of the NSW has sent a message to members reporting on a serious incident.  In that notice he says (emphasis added):

… Last night, a member was on a roof responding to a storm damage job.  During this response, the member fell through both the roof and the ceiling, suffering minor injuries. This incident however, could well have had far more serious consequences.

Initial inquiries have identified that at the time of the incident, this member and their team, were not using a Height Safety System…

This incident has been reported to SafeWork NSW and will also be investigated by the NSW SES Work, Health and Safety team.  The result of either the SafeWork NSW or NSW SES WHS investigations may result in disciplinary action against the members involved.

In some cases, it is vital to send out an immediate notice for example where an accident or near miss reveals a danger in the way a piece of equipment might be used and which others might also be exposed to, but that is not the case here – this is not a notice telling members to immediately stop using some equipment that has proved to be dangerous.  In this case, members were told a person fell through a roof.  Telling that story before all the facts have been determined may serve as an important reminder to members of the dangers inherent in their tasks and to share concern for their colleague.    The story could be used to stress the importance of running a dynamic risk assessment and using PPE. But all that could be done without adding the conclusion that the members were to blame – ‘this member and their team, were not using a Height Safety System…’ and that disciplinary action may follow.  In my mind, this notice begs the question of what is the point of an investigation.  Is it to learn lessons or apportion blame?

The US Forest Service and Facilitated Learning Analysis

In 2015, I was fortunate enough, thanks to the Bushfire and Natural Hazards CRC and the US Forest Service, to attend the Forest Service’s course on Facilitated Learning Analysis.  This is the method the Forest Service uses to investigate accidents and near miss events.  The driving philosophy is that no-one sets out planning to do a bad job or have an accident. Everyone is going to try their best.  What follows is that a decision to do something, or not do something, must have made sense to the people at the time as being the ‘best’ thing to do.   In context and assuming it’s true that that ‘this member and their team, were not using a Height Safety System’ it follows that for some reason, not using the Height Safety System seemed like a good idea at the time.

If the organisation wants to learn, it needs to understand why that it seemed like a good idea.  What was it about the job, the pressures the team were under, the equipment they had, the culture in their team, unit, region or organisation that said this was a good thing to do?  How often had they done it before with good results and even, perhaps, been rewarded for their quick turn around?  How much do the emergency services reward and value a ‘can do’ attitude?  (For further more detailed discussion, see the section ‘A Tale of Two Coroners’ in Eburn, M. & Dovers, S. Discussion paper: Learning for emergency services, looking for a new approach (Bushfire and Natural Hazards CRC, 2016)).  Understanding those factors allows the organisation to understand the difference between how it believes, or wants, its teams to operate, and how they actually operate.  It is that understanding that allows the organisation to learn and to make changes in culture, practice or equipment so the short cut no longer looks like a good idea.  To put that in context, the problem here (assuming the initial inquiries are correct) is not that the member wasn’t using a Height Safety System, but that despite whatever training and edicts there are, it is the still the case that some people in some circumstances, think that it makes sense not to use a Height Safety System.  Identifying that a Height Safety System wasn’t used will go no way to explaining why it wasn’t used.   But understanding ‘why’ is vital to avoid a repetition.  A learning organisation should see this event as ‘a safe opportunity for those involved to share their story and allow others to learn from it’  (Forest Service, Facilitated Learning Analysis Implementation Guide (June 2013), p 4).

It is a condition of the Facilitated Learning Analysis, and a commitment from the US Forest Service, that nothing that is said during the process will be used against any of the participants by the Forest Service. The Forest Service can’t control what police and other regulators might do, but they won’t take any punitive or administrative action against any member of the Service for what they reveal during this process.   In the Facilitated Learning Analysis Implementation Guide (p 7) they say:

B. ADMINISTRATIVE ASSURANCE OF NO PUNITIVE ACTIONS

It is critical to maintain a solid firewall between the FLA and any potential administrative actions that may be taken against the employee. Information is the lifeblood of safety. We must let it flow. If we punish employees for actions that, in perfect hindsight, appear to be errors or mistakes, we may (or may not) stop them from making errors or mistakes. However, it will definitely stop employees from sharing with management how they make sense about which rules are relevant, and how they make the tradeoff decisions between production and safety.

Another key approach from the US Forest Service is to share the learning.  They do this by getting those involved to write their story, and explain what was happening and their thinking.  This is written as their story, not as a report, and then distributed through, amongst other channels, the Wildland Fire Lessons Learned Centre (p 40).  These publications allow other operators to put themselves in the position of those affected by the event.  During the course that I attended it was reported that when this is done most people could put themselves in the decision makers’ shoes and understand why the decision was made and realise that they too may have made the same decision. Now, having the shared experience they were positioned to rethink the matter if they find themselves in the same position. (You can read reports, and sign up to notifications at the website of the Wildland Fire Lessons Learned Centre – http://www.wildfirelessons.net/home, see also the Forest Service’s ‘Facilitated Learning Analyses – http://www.fs.fed.us/fire/doctrine/learning/flas.html).

Why did the Forest Service adopt this approach? In the Facilitated Learning Analysis Implementation Guide they say (p 4):

By the end of 2004, the U.S. Forest Service fire community was stunned and disoriented by a string of administrative decisions and legal actions against firefighters involved in accidents. To many firefighters and agency administrators, the word “accountability” had become synonymous with “punitive actions.” Owning mistakes and sharing lessons learned from an accident were seen to be career-ending decisions. To protect employees, any learning that was occurring from bad outcomes was local and had to stay local or go underground.

If people knew that an inquiry was being run, with the intended outcome of punishment, people would not share learning, and the Service was suffering.    In identifying the benefits of the Facilitated Learning Analysis approach, the Forest Service says (p. 1):

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

Alternatively, leaders can see that while accidents are very rare, risk is never absent. Employees with limited perspectives continually adapt and make judgments to handle emerging risks, and these adaptations will never be perfect. Errors, mistakes, and lapses are commonplace. So are optimism and fatalism. So are taking shortcuts to save money, time, and effort. So are under- and overestimating risk. Indeed, human performance variability is not only normal, it’s the rule! With this view, leaders can treat accidents as valued opportunities to look deeply into the operation to better understand how employees perceive and manage risk in the real world. This sets the stage for learning and improvement going forward: to be better tomorrow than we are today. With a commitment to learning rather than blaming, an accident becomes a safe opportunity for those involved to share their story and allow others to learn from it.

“Take your pick, you can blame human error or you can try to learn from the failure.”

So how is the SES responding to this event? With a statement that ‘Initial inquiries have identified that at the time of the incident, this member and their team, were not using a Height Safety System’ (ie ‘rules or protocols were broken’) and the likely or at least possible outcome from the event will not be learning, but punishment (ie we will ‘identify ([and] blame) the rule breaker and return the system to safety. All that’s needed are better rules or better compliance incentives.’)  Does anyone believe that will work?

Legal commentary – Work Health and Safety Act 2011 (NSW)

But my (self-appointed) role on this blog is to comment on the law not the policy action of the SES.   With respect to the law, there may well be action by SafeWork NSW because for the purposes of the Work Health and Safety Act 2011 (NSW) a worker includes a volunteer (s 7).  The SES has an obligation to ‘ensure, so far as is reasonably practicable, the health and safety of’ its workers (s 19) and an individual worker has a duty (s 28) to:

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

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

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

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

It’s a long way from saying these duties exist to concluding that SafeWork will take legal action.  SafeWork has several options that can be used, long before prosecution including working with the agency to deal with ongoing safety issues, serving an improvement notice (s 191) and/or accepting undertakings to remedy any defects in work practices (s 216).

But the people involved in this event are already on notice as to the initial view of what caused the fall (a lack of safety equipment) and the purpose of the investigation – to determine if disciplinary action is warranted.

Administering a caution

When police investigate a matter, they can talk to anyone and ask anything they like.  But as soon as they have reason to believe the person they are speaking to may have been involved in the commission of an offence, they must ‘caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence’ (Evidence Act 1995 (NSW) s 139).  If I were involved in this matter I would read the Acting Commissioner’s notice as akin to that caution.

The privilege against self-incrimination

When the police investigate a matter a person has a right to refuse to answer questions that may suggest they are guilty of an offence. This is called the right or privilege against self-incrimination (and, for the benefit of those that watch too much American TV, in the United States it’s called pleading or taking ‘the 5th’ after the 5th Amendment to the US Constitution which says, in part ‘No person … shall be compelled in any criminal case to be a witness against himself…’).  In a Work Health and Safety investigation, a person cannot refuse to answer a question from a WorkSafe Inspector ‘on the ground that the answer to the question … may tend to incriminate the person or expose the person to a penalty … [h]owever, the answer … is not admissible as evidence against that individual in civil or criminal proceedings …’ other than proceedings alleging the answer was deliberately false or misleading (s 172).

For that section to apply a person must be warned by the Inspector of their obligation to answer and the limited use that can be made of the answer.  Failing to answer an Inspector’s question carries a maximum fine of $10 000 (s 171).

It is of course not my place to give specific advice to anyone, I don’t know what happened here or what the attitude of anyone involved is.  But speaking in general terms, if I was involved in an incident and the organisation that I work or volunteer for put out a statement in the terms of that put out by the Acting Commissioner, I would refuse to take part in any internal investigation and would only respond to a WorkSafe Inspector’s questions once appropriately informed and warned that I was compelled to answer the question and that the answer could not be used against me.  I would also insist that it is recorded that I object to answering the question but do so only based on that compulsion.

Conclusion

I make no comment on the actual event.  I can say that I think the Acting Commissioners notice is at least unfortunate. It is known that NSW SES is leading the way in trying to manage lessons for future learning and have an established and well respected Lessons Learned Unit (see NSW SES PLAN 2011 – 2015, Goal 5, pp 42-44).   Despite the commitment to being a learning organization, to set out a notice that pre-empts the findings of an investigation and which identifies disciplinary action as a potential outcome would seem to ‘vector the agency … away from’ a Learning Culture.

 

 

A first aid instructor has drawn my attention to an interesting case – Lembo v Pacific Brands Holdings [2015] NSWDC 35 and asked the following questions:

In a First Aid Forum the judgement in Lembo v Pacific Brands and your blog ‘Can Trainer/Assessors be liable for poor performance by former students? (October 13, 2016)’ has sparked a lot of conversation about the large amount of short duration First Aid courses that are available across Australia and whether the judgement in the case would be different if the court had found that the course was not of sufficient

To my mind it raises the question is a short course a sufficient amount/level of training and could the lack of training cause harm to the first aider or a patient.

In the case above the training was conducted by St John who refuse (like our organisation) to conduct short courses. I have seen full HLTAID003 Provide First Aid courses run for as little as 2- 3.5 hours face to face plus some online training.

It would be interesting your opinion on the circumstances whether a plaintiff might be successful in suing:

• An employer who asked for a short First Aid course and it was delivered without sufficient training including missing assessment requirements in the training package.
• Whether the trainer/training company could be held liable for conducting a course that did not meet the performance or knowledge assessment requirements in the training package.

I think your respected views would benefit the industry, community safety and hopefully clean out some of the dodgy operators.

Lembo v Pacific Brands Holdings [2015] NSWDC 35 involved a claim by a company first aid officer who injured his back whilst rendering first aid to a person who had fallen down the stairs.  The injury occurred when the patient ‘grabbed hold of his arm and gave it a reef in an attempt to get up. He assisted her up, she had hold of him anyway, whereupon she fell on top of him, hurting him and there seems to be no doubt that in that manoeuvre he sustained a very serious lumbar spinal injury…’ ([10]).  The plaintiff’s claim in negligence was based on an allegation that the training he received from St John Ambulance and his employer was inadequate.   It should be noted that this claim was against the employer, not St John Ambulance.  As they were not a party to the action, St John was not involved in leading any evidence as to the quality of their training.    The gist of the complaint boiled down to a claim that the employer failed  ‘…to instruct the Plaintiff that an injured person should not under any circumstances be lifted if there was any doubt that such person was not able to assist in any lift or transfer’ ([34]).

The judge rejected the plaintiff’s claim.  Whilst giving evidence the plaintiff agreed that during his first aid training he had been instructed ‘that you shouldn’t move a casualty unless necessary’ and ‘that to move someone unless necessary was a dangerous thing to do’ ([38]). During the trial (at [13]) the judge asked the plaintiff’s counsel ‘You said something should have been done about training and I’m not quite sure what it was. I mean they went to St John Ambulance what else?’  In the absence of any evidence as to what other training could or should have been provided, the judge rejected the plaintiff’s claims.  He said (at [42]-[44]):

In my view, the Plaintiff has not established any deficiency in the training provided that was causative of the Plaintiff’s injury. No evidence was provided nor did the submission identify as to what other or additional training ought to have been provided.

The Plaintiff was trained not to lift and not to go anywhere near if there was a danger to him. According to his evidence an ambulance was called and he instructed the injured person not to move. The person moved nonetheless using him for support. The evidence discloses that physically he sought to support the person rather than restrain her. To the extent he was called upon to do anything, the circumstances alleged fall into the category of what the High Court described in O’Connor v Commissioner for Government Transport as follows:-

“It seems fanciful to treat the question as one to be gone into and decided by some superior officer, as distinguished from the workmen on the spot, and still more fanciful to suppose that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill or knowledge to decide and ordinarily treated as a matter for the man doing the job.”

It follows that the Plaintiff’s action must fail.

To put that into plain English, the plaintiff had received adequate training and any suggestion that, in the given circumstances, some superior officer should have given a warning, or that there should have been instruction not to do something that was obviously dangerous is fanciful.  The plaintiff lost.

So, where does that leave my correspondent?  The question said ‘the judgement in Lembo v Pacific Brands and your blog dated 13 October ‘Can Trainer/Assessors be liable for poor performance by former students? (October 13, 2016)’ has sparked a lot of conversation…’ The important thing to note here was that in Lembo, despite an allegation of some inadequate training, the claim was lost and in my post I concluded that the answer to the question:

Are volunteer trainer/assessors (i.e. those teaching a specific endorsed course through a department academy or approved school) open to litigation or accountability should one of the students assessed as competent go on to be injured or cause damage at some future time?

Was “No”.   Neither of these conclusions would suggest that there is an issue with ‘short’ first aid courses.

The judgement in this case did not turn on what the judge thought of the course.  The judge was not asked to assess whether the St John course was, or was not of sufficient.  He asked the plaintiff, via his lawyer, what else could the employer do other than send him to a trainer such as St John but there was no evidence or assessment as to the nature of the course or how it was taught.  Remember too that St John was not a party to the action so there was in fact no suggestion that the St John training was inadequate, just that the employer should have given some extra warning not to move or support the patient, a risk that was so patently obvious that no warning was required.  The St John training was not in issue and the case in no way turned on the fact that ‘training was conducted by St John who refuse (like our organisation) to conduct short courses.’

If the claim had been that the St John training had been inadequate, and had St John been a party to the action and been asked to explain their training then there may have been an issue if they had failed to deliver some key message, but that was not this case.

Whether a short course is sufficient or not is not really a legal question.  An instructor/examiner with a registered training organisation has to deliver the training package and an assessor has to sign off if, and only if, the candidate is competent.  If either the instructor or examiner takes a short cut in the process then there could be liability, in the right circumstances.  The most obvious liability is for breach of contract and breach of provision of the Australian Consumer Law rather than negligence, but in the right circumstances such an action could be possible. Remember in my earlier post, I said that an instructor would not be liable for subsequent poor performance by a student provided that ‘that they have delivered the training and conducted the assessment (not just signed off because they are mates, or the unit needed people with those qualifications, or decided that the training was rubbish and they’d deliver their own syllabus)…’  That remains my view even if the RTO has determined the course can be delivered in a short format.

Provided there isn’t a mandatory minimum period of instruction, the point of competency based training is to be assessed as competent, not that you have spent a certain number of hours in training.

Let me turn to specific questions:

• An employer who asked for a short First Aid course and it was delivered without sufficient training including missing assessment requirements in the training package.

An employer who signs staff up for a first aid course no doubt believes the RTO is delivering the appropriate course.  An employee could be liable if it asked the RTO to deliver a course that they know was insufficient but that seems unlikely.

• Whether the trainer/training company could be held liable for conducting a course that did not meet the performance or knowledge assessment requirements in the training package.

The RTO could be liable to those that pay for a course if they fail to deliver the course that the customer pays for.  Being liable in negligence if there is poor performance is possible but as I’ve noted before, actually showing the causative link would be difficult depending on the time that passes between the training and the injury.   They certainly wouldn’t be liable to the patient because of the difficulty of proving the link between the allegedly inadequate training and the poor outcome and the fact that the class of patient’s is open ended and one can’t owe a duty of care to everyone.

Conclusion

I’m not sure how the decision in Lembo v Pacific Brands or my blog post  ‘Can Trainer/Assessors be liable for poor performance by former students? (October 13, 2016)’ raises the question ‘is a short course a sufficient amount/level of training and could the lack of training cause harm to the first aider or a patient?’ given that the judges conclusion, and mine, was that there was, or would be, no liability.   An RTO that believes it is delivering training that meets the training package and that its students are competent can’t be liable for their subsequent performance.  An RTO that knows it is not providing adequate training may have some liability to its students but that is more likely to be in the area of contract and consumer law rather than negligence law.

 

 

 

 

 

 

 

 

 

 

On 2 November 2016, the Bushfires Act (NT) was repealed and replaced with the Bushfires Management Act 2016 (NT).    Rather than give a detailed explanation of the new Act, I quote from the second reading speech of the Member for Daly, Mr Higgins the then Minister for Land Resource Management.  He said, when introducing the Bill on 21 April 2016:

This bill modernises and builds on the strengths of the existing legislation. It also draws on contemporary trends and approaches to fire management in other jurisdictions, and combines these with the successful bushfire management arrangements that have evolved in the Territory in recent years. It provides a custom framework designed to address the unique challenges of bushfire management in the Territory, while also addressing the gaps that have been identified in the existing act. …

A point of difference between this legislation and bushfire-related legislation in many other jurisdictions is its focus on planning and fire management rather than just fire exclusion…

The new legislation establishes a planning and mitigation framework across all of the Territory. It focuses on engagement with landowners and is designed to unlock the potential benefits of coordinated and strategic regional planning. It introduces a formal role for regional committees in regional planning and requires that all of the Territory will be supported by a series of regional bushfire management plans. These regional plans are guiding rather than prescriptive, and so do not create burdensome responsibilities for land managers

There is capacity, in circumstances where a significant risk of life or property has been identified, to prescribe mitigation actions in an area or on an individual property. This will only be possible following a detailed risk assessment process involving consultation with affected landowners and other stakeholders. In circumstances where a landowner, through failure to comply with a prescribed plan, continues to present a significant risk to others, it will ultimately be possible to enforce compliance with a prescribed property fire management plan…

The new legislation allows volunteers to be appointed as authorised bushfire volunteers. This will create a formal role for volunteer firefighters in the incident management structure and allow volunteers, by participation in the chain of command, to exercise the powers necessary to take part in a bushfire response.

I am particularly proud that the creation of authorised bushfire volunteers will also confirm the specific protection from civil and criminal liability while undertaking firefighting duties. This is an important step in improving support for our volunteers and ensuring they are adequately protected and not exposed to unacceptable levels of personal liability risk while contributing to this important community service.

The new legislation also provides authorised bushfire volunteers protection against dismissal or loss of employment benefits as a result of absence from work when requested by the Executive Director of Bushfires NT to attend large-scale high-risk wildfires. This is another important addition to the legislation that will ensure our volunteers do not suffer professional or employment loss as a result of their volunteering contribution during critical events. …

In summary, the Bushfires Management Act will continue the best aspects of its preceding legislation, strengthen support for volunteers and other stakeholders, and provide a comprehensive planning and mitigation framework uniquely suited to the land and bushfire management requirements of the Northern Territory.

This blog has reported on a fatal collision involving an RFS appliance.  See

• Tragic outcome from RFS response (April 4, 2013);
• Rural Fire Service volunteer on trial for fatal collision (May 19, 2016);
• NSW RFS volunteer acquitted of dangerous driving occasioning death and grievous bodily harm (June 16, 2016);
• Further prosecution over fatal RFS accident (August 17, 2016);
• Further prosecution over fatal RFS accident (Part 2) (August 21, 2016);
• RFS Response to Volunteer’s Conviction for Fatal Traffic Accident (October 13, 2016); and
• RFS Fatal Collision and s 128 of the Rural Fires Act (October 14, 2016).

The trial process has come to an end with the sentencing of the volunteer.  Mr Wells was convicted of two offences – negligent driving causing death and making a U-turn without giving way to another vehicle (R v Wells [2016] NSWDC 169).  The maximum penalty for negligent driving causing death is 18 months’ imprisonment.  The sentencing judge must also disqualify the offender from driving for not less than 12 months.  The maximum penalty for failing to give way when making a u-turn is a fine of $2,200 (R v Wells (No 2) [2016] NSWDC 313).

On 2 December 2016, Mr Wells was:

• Sentenced to 12 months imprisonment to be served by way of Intensive Correction Order (what that means is discussed below but it does mean that Mr Wells does not actually have to go to prison);
• Fined $1000; and
• Disqualified from driving for 12 months.

The sentencing process was in two parts.

16 September 2016 – R v Wells (No 2) [2016] NSWDC 313

On 16 September, the trial judge Berman SC, set out his reasons for imposing a sentence of imprisonment.  Sentencing is a very complex process that aims to balance needs for retribution, rehabilitation and deterrence.  Deterrence is described as ‘specific deterrence’ ie a sentence to discourage the offender from reoffending, and ‘general deterrence’ ie a sentence intended to communicate the seriousness of the offence to others to deter others from committing a similar offence.

Sentencing is very personal.  The question of guilt or innocence is a question of law and does not depend on factors personal to the accused.  Sentencing, on the other hand, is very much about the defendant so personal factors are very relevant.   Different factors about the offence, and the offender are considered.  Some of those factors point toward a more lenient sentence, some toward a more severe sentence. On 16 September, the judge identified those factors.

Factors in Mr Well’s favour

In Mr Wells’ favour was the nature of his driving.  Although he was negligent, “His negligence …  consisted of failing to foresee that by entering the high speed lane of the F3 he presented a threat to oncoming vehicles and that Mr Mihailidis might respond to the threat in the way that he did” ([18]).   Further the judge noted that Mr Wells was, and continues to be, an RFS volunteer contributing to his community and contributing to the RFS by involvement with RFS driver training by sharing his experience and learning from this terrible event ([21]-[24]).

Further factors in his favour was his clean criminal and driving history, a previous offence of negligent driving was more than 20 years ago.   Also considered was his need for a licence both for his employment, now with the RFS, and to support his wife who required assistance to attend medical treatment.

Factors counting against Mr Wells

Counting against Mr Wells was “why he entered into the fast lane of the F3 was simply to avoid having to stop and start again. There was absolutely no urgency which required him to do what he did” ([18]).   At [16]-[17] the judge said:

The urgency or, indeed, lack of urgency for the offender to get back to the Mount White checking station is important in assessing his objective criminality. There was no need for him to fail to wait the 11 seconds that I have spoken about earlier, and indeed, probably no need for him to perform a Uturn in any of the U-turn bays on the F3 at all.

In his interview with police conducted in the early hours of the morning after the collision he spoke of having to return to the Mount White checking station to finish tidying up and to pick up the crew. He had also told police that he and other members of the RFS crew had consumed pizza at the weighbridge before he left, bought for them by the owner of the truck which had spilt the concentrated orange juice. There is no reason to doubt his description to police of the reason that he was heading back to the Mount White checking station, so whatever threat there had been to property, by the orange juice spill had abated, and more importantly, there was no urgency in the offender and Mr Barwick getting back to the weighbridge station to assist with tidying up and picking up the crew, there was no emergency, or even urgency, which required the accused to have not waited the 11 seconds which would have allowed him to perform the U-turn in safety and allow Mrs Mihailidis to return to her home alive.

Also counting against Mr Wells was that “nowhere is there evidence that he has accepted responsibility. Nowhere is there evidence that he regards himself in any way at fault for what has come about. The Crimes (Sentencing Procedure) Act says that I am to take into account as a mitigating feature ‘remorse’ but only where he accepts responsibility” ([20]).

Other considerations

His Honour said “It is very important that drivers of all vehicles, perhaps particularly drivers of emergency vehicles, understand the responsibilities they have to avoid driving in a way which risks the safety and wellbeing of other road users” ([31]).   Accordingly the conviction and sentence of Mr Wells is intended to act as a general deterrent to convey to other drivers that they must take care to avoid injuring other road users.   An emergency may justify doing somethings, and taking some risks that would not otherwise be lawful (see for example, No Liability for NSW Ambulance Accident (October 19, 2016)) but remember that at the time of this accident, there was no emergency.

Further it was important that the sentence reflect the general sentencing trends for this offence.  On this point His Honour noted that it was important to recall that “…the offender being sentenced has caused the loss of life” ([33]) but even so “It is a relatively rare event for a full-time custodial sentence to be imposed upon someone convicted of negligent driving occasioning death’ ([34]).  Taking into account all of the factors, the judge did not think Mr Wells required the “ultimate sanction” of full time imprisonment.

At that point His Honour noted that a “sentence of imprisonment is required” ([35]).  That sentence would be less than the maximum of 18 months.  At that point the case was adjourned to allow for an assessment to be made by the Department of Corrective Services as to whether Mr Wells was eligible to serve his sentence by way of an Intensive Correction Order.

Intensive Correction Order.

When a person is sentenced to imprisonment for less than 2 years, an order may be made providing that the sentence of imprisonment is to “be served by way of intensive correction in the community” (Crimes (Sentencing Procedures) Act 1999 (NSW) s 7(1)).   An order is subject to some mandatory conditions, including that the prisoner be of good behavior during the period of sentence, that he or she reside only at approved premises (which can be their own home), that he or she cannot leave Australia or NSW without permission, that they make themselves available for drug and alcohol testing, searches and that they are subject to supervision as determined by their supervising correctional officer (Crimes (Administration Of Sentences) Act 1999 (NSW) s 81 and Crimes (Administration Of Sentences) Regulation 2014 (NSW)). In effect a person has constraints imposed on their liberty but they do not have to spend time in an actual prison and they can, within the limits imposed by the order, continue with their employment and other activities and continue to contribute to their community and support their family.

2 December 2016 

On 2 December 2016, the matter came back before the court.   I am advised that his Honour will not be publishing further reasons as his task on that day was simply to deliver his sentencing decision. He received no further submission and gave no further reasons for his final decision (see also, Accessing a Judge or Magistrate’s Reasons for Decision (November 18, 2016)).  I am advised that Mr Wells was:

• Sentenced to 12 months imprisonment to be served by way of Intensive Correction Order ;
• Fined $1000; and
• Disqualified from driving for 12 months.

Commentary – this decision is not a development of the law

The judge did recognise that Mr Wells, and the RFS, made a significant contribution to the community but that did not exempt anyone from the law.   A person who wrote a reference in support of Mr Wells wrote “This decision will have a negative effect on volunteers overall”.    The judge said “If that is somehow a suggestion that volunteer fire fighters should be held to a lesser standard of behaviour than others, that it is an attitude which I immediately reject. Being a volunteer does not give anyone a licence to break the law.”

It is I think important to stress that and to note that despite what might be implied from the RFS response to this accident (see RFS Response to Volunteer’s Conviction for Fatal Traffic Accident (October 13, 2016)) his Honours finding that Mr Wells was negligent, that he enjoyed no immunity by virtue of r 306 of the Road Rules 2014 (NSW) and that even though he was a volunteer that did not allow a lower standard of care was not new nor should it have been contrary to anyone’s understanding of the law.

Rule 306 of the Road Rules 2014 (NSW) gives the driver of an emergency vehicle an exemption from those Road Rules, not all road rules because they are not all set out in the Road Rules 2014 (NSW).    Serious offences, such as negligent driving causing death, are set out in the Crimes Act 1900 (NSW) and there is no exemption from those offences.

Also, the exemption under r 306 applies to an ‘emergency vehicle’.  A vehicle operated by the RFS is not for that reason an ‘emergency vehicle’.  Its status changes depending on the circumstances.  A vehicle is an emergency vehicle if, inter alia, it is being driven by a member of the RFS ‘providing transport in the course of an emergency’ (Road Rules 2014 (NSW) Dictionary, definition of ‘emergency vehicle’ and ‘emergency worker’).   In this case, there was, at the time of the accident, no emergency.

As his Honour noted, there are u-turn bays on the motorway.  The signs for these u-turn bays say ““no U-turn” but a supplementary sign positioned underneath said, “Police, RTA, NRMA and emergency vehicles accepted” ([10]).    In the absence of an emergency, there was no exemption for an RFS appliance.

Anyone who believed that the driver of an RFS appliance could do what he or she wanted, or believed that simply turning on the red/blue lights and/or siren, in the absence of an emergency, gave rise to rights or an exemption from the law simply misunderstood the law.   As noted in my earlier post (RFS Response to Volunteer’s Conviction for Fatal Traffic Accident (October 13, 2016)) I do not think that this outcome has, or should have, ‘lead to some uncertainly about emergency vehicles using U-Turn and cross over facilities’.  They can do so provided the driver takes care to avoid a collision and does so only when an emergency, not merely convenience, warrants taking that inherently dangerous action.

Conclusion

That is the end of the trial process.  It is also the end of the legal proceedings unless there is an appeal.  It is, in my view, unlikely that the Crown would want to appeal any aspect of this decision.   Depending on the advice he receives from his counsel, Mr Wells may seek to appeal either his conviction or his sentence to the NSW Court of Criminal Appeal.    I make no comment on whether such an appeal is warranted.  That is very much a matter for Mr Wells and his legal advisors.