I wrote a post on Carrying scheduled drugs interstate back on  January 28, 2016.  That post was triggered by a question from a volunteer with St John Ambulance (NSW). The issue arose because St John Ambulance (ACT) were unable to provide requested first aid cover and asked their NSW colleagues to assist. The question was whether the NSW members could carry scheduled drugs that they were authorised to use, into the ACT. I had assumed that there must be legal provisions in place to allow people to carry drugs across state and territory borders as it must happen on a regular basis – ambulance paramedics, non-emergency patient transport services, commercial and volunteer first aid organisations as well as registered health professionals must often cross borders whilst carrying their normal ‘drug kit’.

My research failed to identify any relevant legal authority. My conclusion was

… to possess, supply or administer a schedule 2, 3, 4 or 8 medicine in the ACT a person has to have an authority issued by the Chief Health Officer of the ACT. Presumably members of St John Ambulance Australia (NSW) do not have that authority. It follows that if they wanted to travel to do duty in the ACT any authority they have under the relevant NSW law would not be sufficient and they would have to leave their scheduled drugs at the border.

I came to a similar conclusion for people travelling from the ACT to NSW.

In that post I said:

I confess this is an issue I’d ‘skirted’ around in earlier answers that is the question asked didn’t need me to address this head on, so I didn’t but now I have no choice and it appears that the answer is ‘No, an interstate authority is not sufficient’. As I say I think this answer is both surprising and important for the sector so in this blog I’m going to limit myself to the facts given, ie St John volunteers crossing between NSW and the ACT. I may take time to write a more detailed paper looking at all health professionals (in particular doctors, nurses and paramedics) and all states and look to publish that in an appropriate journal, perhaps the Australian Journal of Emergency Management. Watch this space and I’ll let you know if and when that happens.

In researching this matter further, I am now persuaded that I was wrong and that there is relevant authority.

In New South Wales the Director General can give authority to supply, prescribe or administer scheduled drugs (Poisons and Therapeutic Goods Regulation 2008 (NSW) r 170(1)). Regulation 170(3) says that ‘… any exemption in force under a law of the Commonwealth, or of another State or a Territory, corresponding to this clause has the same effect as an exemption under this clause’. It follows that if a person has an authority issued in the ACT that will be honoured in New South Wales.

In the ACT ‘The Act requires that a person must not deal with a medicine in a particular way unless the person is authorised to deal with the medicine’ (Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT) r 10). A person is authorised to deal with a medicine if ‘the person has a licence or permit under a Commonwealth Act, this Act or another territory law that authorises the dealing’ (Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) s 20(1)). It follows that if a person has an authority under an interstate law that too will be honoured in the ACT.

There could be debates about whether an exemption granted under a regulation (see Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) r 190(1)(a)) is the equivalent to an exemption granted by the Director-General of Health in NSW but I can’t see that any regulator or court would seriously entertain the argument that the NSW regulation was not intended to act, in effect, as a mutual recognition provision.

Equally one might argue that an exemption set out in Appendix C to the NSW Regulation is not a ‘licence’ for the purpose of the ACT law. A licence is, however ‘an authority to do something which would otherwise be wrongful or illegal or inoperative’ (Federal Commissioner of Taxation v United Aircraft Corporation (1943) 68 CLR 525) not a card or piece of paper. The key issue is the authority, not the form so an exemption provided by regulation is as much as licence to deal with drugs in a way that would be otherwise illegal as a licence issued as a card would be.

It follows that to return to the question I was originally asked ‘Is a NSW poisons licence valid for use in the ACT?? (And potentially vice versa?)’ I am now of the view that the answer is actually ‘Yes’.

I have hesitated getting involved in this debate for a number of reasons.

1. Accessing the relevant documents has been difficult but the CFA did put them up on their website last week.
2. The proposed Country Fire Authority / United Firefighters Union Of Australia Operational Staff Enterprise Agreement 2016 runs for 229 clauses, 27 Schedules and 406 pages.
3. On many issues that are discussed on this blog I am the only commentator. There has been much commentary on this issue including from Rush QC, former counsel assisting the 2009 Victorian Bushfires Royal Commission (‘CFA dispute deal risks our volunteers’ future: Jack Rush QC’ (22 June 2016)), and legal opinions from the  Victorian Equal Opportunity and Human Rights Commission and the Government’s Senior Crown Counsel.

Even so, I do want to enter into the debate in a limited way and consistent with what is, I’m told, my philosophical position as a ‘legal positivist’ (the law is what it is – it’s for others to say whether it’s good or bad law).   Consistent with my approach since starting this blog in 2009, it’s my job to ‘call it as I see it’ even if that is entering a political controversy and even though, whatever conclusion I come to, it will be unpopular with either Volunteer Fire Brigades Victoria or the United Fire Fighters Union and both those organisations represent ‘my’ audience.

I do have concerns with the proposed Enterprise Agreement and with provisions that are unique to the Country Fire Authority Act 1958 (Vic).  They are sections 6F-6I:

6F.                   Recognition of Authority as a volunteer-based organisation
6G.                  Recognition of the Volunteer Charter
6H.                  Authority to have regard to Volunteer Charter
6I.                    Authority’s responsibility to encourage, maintain and strengthen capacity of volunteers

Section 6F says (emphasis added) that the CFA ‘is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner’.  According to s 6I ‘The Authority has a responsibility to develop policy and organisational arrangements that encourage, maintain and strengthen the capacity of volunteer officers and members to provide the Authority’s services.’  Pursuant to the volunteer charter, the CFA is to ‘Recognise and acknowledge that a primary responsibility of CFA and people employed by CFA is to nurture and encourage Volunteers and to facilitate and develop their skill and competencies’.

It does appear that the current proposed Staff Agreement would not give effect to those provisions.   To take just two examples, the proposed cl 83.5 says:

Consistent with the increases in staffing provided in this Agreement, the CFA will conduct an extensive range of preventative and preparedness programs and meet its duty of care by ensuring a minimum of seven professional firefighters to fireground incidents are dispatched before commencement of safe firefighting operations. This requirement applies to integrated stations in Districts 2, 7, 8, 13, 14, 15 and 27. Consistent with the increases in staffing provided for in this Agreement, CFA will also ensure that there is a minimum of seven professional firefighters to fireground incidents that professional firefighters are dispatched to before commencement of safe firefighting operations for the following integrated stations being Shepparton and Mildura professional firefighters by no later than 1 January 2017 and Warrnambool professional firefighters by no later than 1 January 2018.

An integrated station ‘is a fire station which includes professional firefighters appointed to the station’ [11.24].

Victoria has not adopted the model Work Health and Safety Act 2011.  If it had the Act would impose the same duty to ensure work health and safety regardless of whether or not the worker is a volunteer or paid staff member (see Work Health and Safety Act 2011 (Cth) s 7 ‘Meaning of worker’).   Certainly if that Act applied, and if it was necessary to send seven professional firefighters to ensue firefighter safety, it would be equally necessary to send seven volunteers.    Under the Occupational Health and Safety Act 2004 (Vic) s 21, the primary duty is owed by an employer to an employee and a volunteer is not an employee.  Even so an ‘employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer’ (s 23).  The CFA does have a duty to ensure for the safety of its volunteers.

The effect of clause 83.5 is that if the CFA sends one paid firefighter, they have to send 7.   They can’t send 4 paid firefighters and 3 volunteers or any other combination.  It has to be seven paid firefighters.

To ‘integrate’ means (according to Oxford Dictionaries online):

1              Combine (one thing) with another to form a whole:

1.1          Combine (two things) so that they form a whole:

1.2          (Of a thing) combine with another to form a whole:

2              Bring (people or groups with particular characteristics or needs) into equal participation in or membership of a social group or institution:

2.1          Come into equal participation in or membership of a social group or institution

A fire station is not ‘integrated’ if the volunteers and paid firefighters are not combined into a whole but are treated differently because of their employment status.  Clause 83.5 would not create an ‘integrated station’ but would, instead, create a situation akin to the situation in NSW where NSW Fire and Rescue has ‘permanent’ and ‘volunteer’ brigades (Fire Brigades Act 1989 (NSW) ss 8 and 9). Even if they work out of the same station they are different brigades rather than an ‘integrated’ brigade or station (see Who’s the officer in charge? – NSW Fire and Rescue (September 3, 2013) and the comments attached to that post).

It is not clear why, if what is intended is an integrated station and if the CFA ‘is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner’ that the safety concerns wouldn’t be met by ensuring seven firefighters, regardless of their employment status.  That is cl cl 83.5 could say:

… the CFA will conduct an extensive range of preventative and preparedness programs and meet its duty of care by ensuring a minimum of seven firefighters to fireground incidents are dispatched before commencement of safe firefighting operations.

Clause 83.5 as currently drafted does appear to be inconsistent with s 6F of the CFA Act.

Clause 36.4 says:

All employees covered by this agreement shall only report to operational employees under this agreement or at the rank of DCO or CO when responding to fire alarms or incidents under this agreement except in the case where the incident is a level 3 multiagency incident or to a CFA/MFB incident controller at an incident.

The UFU is quoted as saying ‘volunteers acting as incident controllers would still have the capacity to give orders’ (‘Victoria’s CFA, union Enterprise Bargaining Agreement dispute explained’, ABC News (Online) 8 Jun 2016).  That is quite correct, but it does mean that a volunteer can’t act as crew leader, sector commander or some other position other than IC and exercise command responsibility over a paid firefighter, regardless of their relative experience and training.  Again this appears to be inconsistent with s 6F and the concept of an integrated service.

This position would also be contrary to the reasoning behind a recommendation of the 2009 Victorian Bushfires Royal Commission.  The Royal Commission recommended (Recommendation 18) that:

The Country Fire Authority and the Department of Sustainability and Environment amend their procedures to require that a suitably experienced, qualified and competent person be appointed as Incident Controller, regardless of the control agency for the fire.

Disputes over land tenure was not to influence who acted as IC.  Clause 36.4 still allows a volunteer member of the CFA to act as IC but as noted, not at lower levels of control.  It can be foreseen that an issue will arise at the next Royal Commission where ‘a suitably experienced, qualified and competent’ volunteer was unable to exercise fire ground decisions because he or she could not require less experienced but paid firefighters to report to him or her.

There are other clauses with respect to the implementation of decisions and the development of policy that are problematic.  For example, cl 90.4 says:

90.4. The parties acknowledge that the occupation of firefighting is an extremely hazardous and dangerous occupation where firefighters can be deployed into known and unknown hazardous situations to perform the rescue of life and protection of property.

In this context, the parties have prioritised the health and safety of the employee covered by this Agreement by agreeing on the following clause.

The CFA and UFU must agree on all aspects of the:

90.4.1. articles of clothing;

90.4.2. equipment, including personal protective equipment;

90.4.3. technology;

90.4.4. station wear; and

90.4.5. appliances;

to be used or worn by employees. ‘All aspects’ includes, without limitation, design and specifications. This applies to new and replacement items. ‘Appliances’ is defined as including any vehicle used by employees (including vessels and aerial vehicles) and any vehicle attachment such as a POD or trailer.

That clause is problematic for two reasons.  First the section requires that the CFA and the UFU ‘must agree’ on the issues listed.  The CFA, as an employer, has the primary duty to ensure the health and safety of its employed firefighters (Occupational Health and Safety Act 2004 (Vic) s 21).  The Occupational Health and Safety Act sets out detailed procedures to ensure that obligation is met and to provide for consultation between employees and employers (ss 35 and 36; see also s 43-94 on representation of employees and rights of relevant employee organisations).  Consult does not necessarily require ‘agreement’ (see Firefighters and the need to consult with landowners in WA (September 1, 2015); The role of volunteer associations in Victoria’s SES and CFA (March 2, 2016); and A Question on the ACT Emergency Services Authority Volunteer Charter (April 14, 2016)).  I don’t know what the terms of the current Enterprise Agreement say, or whether such clauses exist in other agreements, but a clause that requires employer and employee agreement is a much tougher test than a duty to consult but with final responsibility for any decision resting with the employer.

This clause might also complicate any OHS enforcement.  Under the OHS Act it is the duty of the employer to ‘so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health’ (s 21).   If, after consultation, the employer implements a policy or introduces technology that does not ensure safety then the employer can be compelled to rectify the work arrangements and may ultimately be prosecuted.  The final say, and final responsibility, lies with the employer.

What is ‘reasonably practical’ requires consideration of ‘the availability and suitability of ways to eliminate or reduce the hazard or risk’ (s 20).  If the CFA determines that there is some way to reduce a risk that is commercially available and suitable, but there is no agreement from the UFU then the measure is not ‘available’ to the CFA.  Under this clause an employer is constrained, even if there is a risk to health and safety the employer can’t take action to rectify it without ‘agreement’. Whether that would be a successful defence or not would remain to be seen but it would certainly complicate the issue.

Second this clause says ‘the parties have prioritised the health and safety of the employee covered by this Agreement…’  Because volunteers are not party to the agreement I would infer that this clause is intended to be read as “the parties have agreed to prioritise the health and safety of employees ahead of other concerns” not as “the parties have agreed to prioritise the health and safety of employees ahead of others, such as volunteers”, but it is ambiguous and the clause could well see health and safety for paid firefighters dealt with in a different way to volunteers.   Under this clause it could be the case that volunteers could be issued with clothing, equipment etc that the paid staff would not agree to.    Again if Victoria had adopted the Model Work Health and Safety Act 2011 that would be problematic, because any obligation owed to a ‘worker’ is owed whether that worker is paid or a volunteer.   In Victoria the Occupational Health and Safety Act deals with ‘employees’ and ‘employers’ so this clause may be allowed but it could lead to differential levels of uniform and equipment.

The CFA has other concerns regarding the position of volunteers – Country Fire Authority and United Firefighters’ Union of Australia Bargaining Dispute s.240 B2015/1496 and B2015/1498 15905955/1 CFA – Alternative Proposal to the Union Claim Version 17.2/1.0 Preserving the role of Volunteers.  In his non-binding recommendations Commissioner Roe said (at [7]):

I do consider it necessary to recommend changes to the Agreement to underline that the Agreement only applies to paid professional firefighters and does not apply to volunteer firefighters or affect their important role … The role of volunteers in fighting bushfires and maintaining community safety and delivering high quality services to the public in remote and regional areas and in integrated stations is not altered by this Agreement.

That the agreement only applies to paid professional firefighters is a limitation that the Fair Work Commission cannot avoid.   Enterprise Agreements are made between employees and employers, the Commission would not have jurisdiction to require an enterprise agreement to apply to volunteers but by consistently distinguishing between paid and volunteers firefighters (eg in cl 83.5, discussed above) it will, if adopted, create a two tier CFA in a way that is inconsistent with s 6F of the Act.

Second it is hard, if not impossible, to see how the role of volunteers will not be altered by the Agreement.  Whilst the CFA and volunteer firefighters are clearly pushing the issue and making their position clear and public, the UFU is relatively quiet. UFU officials have been quoted in the press (eg ‘Victoria’s CFA, union Enterprise Bargaining Agreement dispute explained’, ABC News (Online) 8 June 2016) but there is very little on the UFU website to refute the arguments that the proposed agreement does represent a radical change of the CFA and the role of volunteers.

In the absence of some detailed explanation from the UFU as to why this is not the case and how the agreement won’t alter the ‘role of volunteers in fighting bushfires and maintaining community safety’ then I have to agree with Rush QC’s opinion that:

The enterprise bargaining agreement, central to the sackings, is contrary to the CFA Act.
It provides unprecedented powers within the CFA to the United Firefighters Union.
The EBA undermines the role and independence of volunteers.
Those sacked or resigning had no choice but to oppose the EBA.

I’ve previously reported on a NSW Rural Fire Service volunteer who was facing serious criminal charges following a fatal motor vehicle accident – see Rural Fire Service volunteer on trial for fatal collision (May 19, 2016).  9News Online is reporting that a jury has returned a verdict of ‘Not Guilty’ (see NSW firie not guilty over fatal smash, 16 June 2016).

Whilst this process must have been very hard for all concerned it is an example of the rule of law in action.  This was a tragic accident where one person died and one person was permanently and seriously injured.   Testing, in public, whether the conduct of the fire fighter was criminally culpable should help to reassure the community and the family of the loved one’s that the matter was investigated and properly dealt with, something that may not happen if decisions such a decision not to prosecute are made by the police or the Director of Public Prosecutions.  Where there is evidence to suggest a crime may have been committed the appropriate course is to put the matter before a jury and let the community’s representatives – the jury – determine whether conduct was ‘reasonable’ or caused the death and injury.  Because juries do not give reasons for their decision, however, we’ll not know what factors were considered important in their decision.

These two related questions arise from the current dispute involving the Victorian CFA.  With the issue going to the heart of the CFA’s volunteer culture some fire fighters are talking of breaking away from the CFA.  One correspondent writes and says:

As part of a larger article in the papers today about the ongoing debacle with the CFA, there is the following, but what is the legalities of this? Could it work? What needs to happen?

VOLUNTEER firefighters in the state’s north east are planning to leave the CFA and reform as an independent fire service, as Federal Labor candidates face a backlash in marginal seats.

Firefighters in Molyullah, south of Wangaratta, have voted to explore options of leaving the CFA and reforming as an independent Bush Fire Brigade.

Another correspondent says;

This is very relevant at the moment, but in Victoria under the CFA act, are individuals registered with CFA to gain access to the powers that we have, or are the brigades registered and our powers flow from them? Interested as many of us would like to formally separate from the CFA to avoid conflict, without impeding our ability to look after our communities.

This is not the first time I’ve considered this question.  See

• Self help firefighting in Victoria (August 30, 2014); and
• Neighbours helping neighbours during a Victorian bushfire and the powers of the CFA (November 28, 2014)

The main bar to separating from the CFA is s 26 of the Country Fire Authority Act 1958 (Vic) s 26, which says:

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

What is interesting is that there is nothing to say what is to happen if a brigade is established. There is not general penalty provision that says ‘Breach of a section where no penalty is provided carries a penalty of  $….’ and there is not specific penalty provided.  Compare s 26 to s 107A which says:

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

Penalty:     60 penalty units.

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

Penalty:     60 penalty units.

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

Penalty:     60 penalty units.

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

Penalty:     60 penalty units.

That there is a penalty for impersonating a member of the CFA is clear, but no penalty is provided for in s 26. The normal expectation with a rule that says ‘No one shall do x’ is that anyone doing x is required to stop doing it, but that’s not what s 26 says.  It says ‘No association of persons shall operate as a fire brigade …’ but then goes on to talk about what limitations there are on people so operating, they are not required to stop, they are not subject to any penalty rather they operate without ‘… any powers or privileges or the benefit of any immunity conferred by this Act’.   What I said in my earlier post (Self help firefighting in Victoria (August 30, 2014)) was:

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

So what the CFA Act says, in my view, both in s 26 and 107A, is that one must not operate a brigade or purport in any way to be associated with the CFA unless one is actually associated with the CFA.

Given the terms of s 26 I would anticipate that if there was an unregistered brigade, the CFA may be able to get an injunction from the Court requiring those operating the brigade to cease and desist but there is no actual offence committed.

With respect to the question from my second correspondent; as noted, any brigade that operates outside the CFA legislation would not enjoy any of the rights, privileges or immunities of the CFA.    They will have no special authority to take control of anyone at the scene of a fire, they will not have the support of the police, and in any event, the police are required to support the authority of the CFA (s 31) so one can see that as a source of potential conflict; they would have no power to set fires either as hazard reduction or back burning during fire ban periods; they would not be entitled to benefit under the fire fighters compensation schemes and finally they would not enjoy any particular exemption from liability (s 92).

If we look at the powers of a CFA member at the scene of a fire, we can see the power is actually vested in the Chief Officer – s 30 says:

Where the Chief Officer believes on reasonable grounds that there is danger of fire occurring or where a fire is burning or has recently been extinguished anywhere within the country area of Victoria the Chief Officer for the purpose of preventing the occurrence of a fire, of extinguishing or restricting the spread of the fire or of protecting life or property shall have and may exercise the following powers and authorities:

(b)  He shall have the control and direction of—

(i) any brigade or brigades present at the scene of the fire; and

(ii) any persons who voluntarily place their services at his disposal either individually or as members of any fire fighting organization (whether established by or for the purposes of a statutory authority or body corporate or not) whilst they remain present at the scene of the fire;

(c) He shall have authority either alone or with others under his command to enter upon any land house building or premises and if necessary to force open any outer or inner doors of any house or building which may be on fire or in the near neighbourhood of any fire for the purpose of taking any steps which he deems necessary for any of the purposes aforesaid, and he may take or give directions for taking any apparatus required to be used at a fire into through or upon any land house building or premises which he considers convenient for the purpose;

(ca) The Chief Officer may cause—

(i) any vessel, wharf, pier or jetty to be entered upon or into, if necessary with force; and

(ii) any necessary apparatus to be taken upon or into any vessel, wharf, pier or jetty;

(d) He may take any measures which in the circumstances are reasonable and which appear to him to be necessary or expedient for any of the purposes aforesaid and in particular he may cause any house building or structure to be entered into and taken possession of or pulled down or otherwise destroyed or removed, and any fences to be pulled down or otherwise destroyed or removed, and any undergrowth trees scrub grass stubble weeds or other vegetation to be burnt or otherwise destroyed or removed;

(e) He may cause water to be shut off from any main pipe channel or other works of water supply in order to obtain greater supply and pressure of water for the purpose of extinguishing the fire and he may enter or give directions for entering any land or premises and may take or cause to be taken water from any waterway, lake, lagoon, bore, dam, tank, main or pipe or other source of water supply whatsoever; and no person or body of persons having the management of any water supply shall be liable to any penalty or claim by reason of any interruption in the supply of water occasioned by any act matter or thing

(f) The Chief Officer may close any road or part of any road affected, or likely to be affected, by a fire or smoke from a fire and may direct traffic on any road in the vicinity of the closed road (or closed part of a road);

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

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

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

(h) He may at any time pull down or shore up any wall or building damaged by fire that may be or may be likely to become dangerous to life or property;

(i)     The Chief Officer may take such other measures as appear necessary for the protection of life and property.

The Chief Officer isn’t at every fire and cannot really do all those things him or herself, so the Chief Officer can delegate and authorise ‘any person by name or to the holder of an office or position approved by the Authority’ the various powers that are granted to the Chief Officer.  Without seeing the delegation manual, I would assume there is a standing delegation to Brigade Captains, regional officers and the like to allow them to exercise the Chief Officer’s powers.

So members of the CFA have whatever power they have by virtue of the delegation from the Chief Officer.  It follows that if members were to resign from the CFA and ‘formally separate’ they would no longer be able to exercise any of the Chief Officer’s powers or any other authority that is found in the CFA Act.  That conclusion would be consistent with the clear words of s 107.

A correspondent with NSW SES says:

I was out with the NSW SES during the recent storms. On two occasions residents had claimed they had asked the local Council for permission to remove a tree that had now damaged their property. In fact our neighbour has a “dangerous” tree (it has an increasing lean on it), they approached Council and they have refused to approve removal. I have three questions:

1. Could the Council be in any way liable for damage caused by a tree they did not give permission to remove?
2. Could an insurance company refuse liability in any way (eg known risk)?
3. Could the SES (or an individual member) be liable if we said that we thought a tree was safe, but later this caused property damage or person injury? Remembering SES members are not trained arborists.

1. Would the Council be in any way liable for damage caused by a tree they did not give permission to remove?

This question is reminiscent of the facts in Timbs v Shoalhaven City Council [2004] NSWCA 81.  In that case the council was liable.  The deceased had approached a council employee regarding permission to remove trees that he thought were dangerous. The council employee pointed out that there was a tree preservation order and the landowner would be prosecuted if he removed the trees. The advice was right in that there was a tree preservation order but wrong in that the owner was not advised that he had to apply for permission and if he did the trees would be inspected and if they were dangerous he could remove them. Rather the owner relied on the advice he was given during an onsite conversation, did nothing about the trees that subsequently fell and killed him. The council was liable for failing to advise the owner to make an application so that they could properly consider the request and consider whether the trees were dangerous.   By not giving correct advice or taking steps to inspect the trees the employee was negligent. If, however an application had been made, the trees had been competently inspected and a decision made, in good faith, not to allow the removal of the trees there would have been no liability even if the tree had fallen in the wind.  (See also An act of God? (January 12, 2016) and Liability for dangerous trees (April 28, 2015))

So the answer can be ‘yes, the Council can be liable’ but it depends on much more than we know from this story.  Was a formal application made?  Was it considered?  Were the steps taken to consider the application reasonable in all the circumstances?  Did the tree owner get their own inspection to confirm the state of the tree or just rely on council?  To many questions to give a specific answer. (And that is why this blog talks in general terms, but in an actual case, people need to go to a lawyer of their choice to consider all these sorts of questions and the particular facts).

2. Could an insurance company refuse liability in any way (eg known risk)?

That would depend on the terms of any given policy.

3. Would the SES (or an individual member) be liable if we said that we thought a tree was safe, but later this caused property damage or person injury? Remembering SES members are not trained arborists.

This is taken from the ‘headnote’ or summary of Timbs’ case:

1.The Council was not bound to express any opinion about whether the tree was dangerous. The Council, through its officer, took unto itself the responsibility of determining whether the tree was dangerous…

2. … the Council officer did not know that the tree on the Timbs’ property was dangerous when he made his inspections …

3. The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority. In this case, the Council held a significant and special measure of control over the safety of homeowners who brought to the Council’s attention their fears that overhanging trees were dangerous. This was particularly so, as the Council opted to advise the particular homeowner about whether the trees in question were dangerous…

5. When the Council officer took it upon himself to express a positive view as to the safety of the tree, he was representing a capacity to do so based upon his expertise and experience. In those circumstances, the requisite standard of care required of him was higher than that of a layman and, like a general practitioner, the sufficient level of expertise he professed to have, required him to make a reasonably informed diagnosis or to admit the need for referral to a specialist…

10. This decision does not mean that a Council officer, who is asked informally for advice or consent in relation to a potentially dangerous tree, is obliged to give expert advice. In the present case, the Council officer could have stated that it was open to the deceased to obtain his own advice and to make a formal application to remove the tree and also that if the tree was dangerous, it could be removed without Council consent. There would then be no breach of duty.

Substitute ‘SES’ for Council, and change the past tense to future tense, and you get

1. The SES is not bound to express any opinion about whether a tree is dangerous. But the SES, through its officer, could take unto itself the responsibility of determining whether the tree was dangerous…
2. … the SES officer may not know that the tree … [is] dangerous …
3. The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority. In this case, the SES holds a significant and special measure of control over the safety of homeowners [because the SES can decide to take action to remove a threatening tree and, in any event, the SES should appreciate that a person who has brought to the SES’s attention their fears that overhanging trees are dangerous is asking the SES because they are on scene as the combat agency for responding to damage from storms and they’re being asked because they’ve responded to a call for help about a tree, they carry lots of kit that makes it look like they know about trees]. This is particularly so, if the SES opts to advise the particular homeowner about whether the trees in question were dangerous.
4. When an SES officer takes it upon him or herself to express a positive view as to the safety of the tree, they are representing a capacity to do so based upon perceived expertise and experience. In those circumstances, the requisite standard of care required is higher than that of a layman and, like a general practitioner, the sufficient level of expertise he professed to have, required him to make a reasonably informed diagnosis or to admit the need for referral to a specialist…
5. This does not mean that an SES officer, who is asked informally for advice in relation to a potentially dangerous tree, is obliged to give expert advice. In a similar case the SES officer could state that it was open to the deceased to obtain his own advice and to make a formal application to remove the tree. There would then be no breach of duty.

Conclusion for question 3

What follows is that it would seem to me that an SES member could put the SES into the same position as the Shoalhaven Council. If a person asks the SES ‘is that tree safe?’ and the member says ‘yes.  In those circumstances it may well be arguable that

• the tree owner was vulnerable (if the tree is not safe, it’s going to hurt them);
• they are looking to the SES for advice;
• in circumstances where it can be anticipated that they are going to rely on that advice.

That could give rise to a ‘duty of care’ but the duty would be to answer the question honestly and reasonably – ie give reasonable advice.  Just as in Timbs a simple statement of ‘that tree is safe’ may be enough to stop the person taking further action and then suffering if the tree falls.  As my correspondent says ‘SES members are not trained arborists’ so any advice would have to be couched in those terms for example: ‘We’re not experts and we can’t say whether that tree is safe or dangerous.  You will need to contact your council or an arborist as soon as you can if you have any ongoing concerns’.

Do note that in that conclusion I haven’t addressed the multitude of defences that would be open including s 25 of the State Emergency Service Act 1989 (NSW) (‘A matter or thing done … does not, if the matter or thing was done in good faith for the purpose of exercising the functions of or assisting the State Emergency Service … subject the member, officer or volunteer personally to any action, liability, claim or demand’) and various issues under the Civil Liability Act 2002 (NSW).  The question of whether there is a) a duty of care and b) a breach of that duty can only be answered in a particular case based on the particular facts of that case.  The question I was asked was ‘Could the SES (or an individual member) be liable…’  In the right circumstances I can see an argument that the SES could be liable but that is not a complete answer and a complete answer is not possible in a blog like this.  Like the tree expert, if you want to know the answer in relation to a particular tree, at a particular house, independent advice is required that takes into account all the circumstances.

I don’t really understand this question, or more accurately, the thinking behind the advice.  This question comes from a St John volunteer; I don’t know from which state or territory but it doesn’t matter.

I’m a volunteer with St. John and I wondered, from a legal perspective, is it ok if when I treat a patient I get them to write their own personal details on the casualty report form?  I have been told we can’t get the patient to fill in their details.

As I said I don’t understand the thinking behind this at all so I got back to my correspondent and asked if the person who had given that advice had given any reason – the response was ‘the only reasoning is because it’s a legal document’.

It is a ‘legal document’ means, in my view, that it is, in law, a document – and nothing more.  All documents are ‘legal documents’ in the right context.   Patient care records are written for a number of reasons – see First aid patient records – who and what are they for? (January 31, 2015), the law is only one and in most, if not all cases, the least important.  For whatever purposes the records are put, it is most important that they are accurate.  Asking the patient to complete the personal details, name, address, date of birth, phone number etc surely means it’s more likely to be accurate.  No risk of mishearing what they said or misspelling something.

I can imagine there can be clinical issues. If the person needs to cooperate with the first aider giving treatment or is distracted or affected by their injury, illness, drugs or alcohol you may not want to ask them to also fill in a form, but if we assume that none of that applies, I can see no objection from a legal point of view of asking ‘them to write their own personal details on the casualty report form’.   I just can’t imagine what the person who gave that advice was thinking or why they think there’s some problem.

This issue is becoming a theme –

• Responding ‘the closest fastest most appropriate resource’ rural/bush fire brigade (June 12, 2016); and
• Responding ‘the closest fastest most appropriate resource’ in South Australia (June 6, 2016)

This time the question relates to NSW Fire and Rescue.

The retained fire station that I belong to is around 12 to 15 mins away from a permanent station. The permanent fire fighters are expected to turn out within 3 mins; the retained (part-time) firefighters are given a 7 min turnout time which our brigade meets, give or take 2 mins here and there.

Recently we have been told that there are massive budget cuts to NSW Fire and Rescue.  As a result, the area management want to make it that the permanent firefighters respond to any single pump response and the retained firefighters won’t be activated even if the call is within the retained brigade’s area; so, for example, if there is a car fire in our area where the permanent brigade is roughly 12 to 15 mins away, they will be sent and the retained firefighters won’t be sent.  We are also told that the service won’t be calling in the permanents bravo pump, which is staffed by retained firefighters, to cover the area the permanent brigade is responsible for which is meant to provide 24-hour fire coverage.

Is there any legal obligation that the service is breaking to save money and not call the closest brigade?  Are they ignoring a legal obligation to provide a 24 hour permanently staffed station when the permanent crew are out by not calling in retained firefighters to stand by?  If a job was to happen in front of the permanent’s station and they didn’t have a truck there within 3 mins and someone died as a result of the slower response because it was chasing a fire call out of area when the closer retained station could of done it and they want to save money and not page the retained fire fighters to stand by are they being negligent? And how could we go about getting this issue fixed if it comes in?

Discussion

Response times

First let’s clarify the issue of times.  Chances are the fire call is not to a location directly outside the fire station, so let’s assume it’s a further 5 minutes from the retained fire station.  If the permanent brigade takes 3 minutes to get out the door and then have to travel 12-15 minutes to drive past the retained station on the way to the fire, then a further 5 minutes from there means that the time from receiving the call to getting to the fire will be 20-23 minutes.  The retained brigade will take 7 minutes +/- 2 to get out the door and then 5 minutes to the scene so that will see them there in 10 to 14 minutes.    If the call is actually 5 minutes the other way, so it’s between the permanent station and the retained station, then the permanent fire fighters don’t have to travel the 12-15 minutes to the retained station and then keep going. In that case the permanent brigade would have 3 minutes to get out the door then 7 to 10 minutes to the fire ie 10-13 minutes in total.  The retained brigade would still have 7 minutes +/- 2 to get out the door and then 5 minutes to the scene so that will see them there in 10 to 14 minutes.  Where the fire is really does matter!

Some law

The Fire Brigades Act 1989 (NSW) s 6 provides that ‘It is the duty of the Commissioner to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district’ (emphasis added).   Fires outside a ‘fire district’ are the responsibility of the Rural Fire Service (Rural Fires Act 1989 (NSW) s 6). Providing fire services within the fire district is the responsibility of the Commissioner and to meet these obligations, the Commissioner may:

(a) … establish permanent fire brigades and form or assist in the formation of volunteer fire brigades, and

(b) provide permanent and volunteer fire brigades with suitable premises and requisite equipment, and

(c) maintain permanent fire brigades, and

(d) pay subsidies to volunteer fire brigades and make payments to the members of volunteer fire brigades.

A fire district is not further divided into areas for permanent brigades and retained or volunteer brigades. It is up to the Commissioner to decide which brigade is called to any particular fire.

As you would expect, there is little direction given to the Commissioner on how to perform the functions imposed by s 6.  The Parliament creates the structure and gives the necessary powers to the Commissioner but it is then up to the Commissioner, responsible to the Minister and the Government of the day, to decide how best to meet those obligations.  The courts can intervene if an interested party seeks an order to require the Commissioner to perform the statutory obligations, but this brings us back to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223).  Within a broad discretion the Commissioner is left to make decisions and a court won’t intervene unless the decision ‘‘… is so unreasonable that no reasonable authority could ever have come to it…”.   Are the decisions described by my correspondent so unreasonable that no fire agency could sensibly make the same sort of decision?  I doubt it.

First, and no doubt I’m making many assumptions here, but as I understand it retained firefighters are paid a small retainer but then an hourly rate, and for not less than 4 hours, if they are actually called.  If that’s correct one can see that it costs to call out the retained firefighters and pay them for 4 hours when you are already paying the permanent firefighters and they are being paid whether they are fighting a fire or working at their station.   So there is a budget issue and like it or not, the Commissioner does have to manage the budget.  Second as noted above, it really does matter where the fire is – so at least sometimes the response times may not be very different.

Let us assume, for the sake of the argument, that a person calls triple zero for fire brigade assistance and there is a delay because the permanent brigade, rather than the retained brigade is dispatched.    Let us also assume that the person can establish that NSW Fire and Rescue owed them a legal duty to respond promptly a proposition which, I might add, is NOT the law (see Liability for fire – a review of earlier posts (January 8, 2016)) but which I will assume here just so I can move onto other issues.   The plaintiff would then have to prove that there was negligence, that is that the action taken was not that which a reasonable person would have taken.

In deciding whether there is negligence by an authority like NSW Fire and Rescue, the court has to consider (Civil Liability Act 2002 (NSW) s 42):

(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,

(b) the general allocation of those resources by the authority is not open to challenge,

(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate)…

So the fact that the Commissioner has budget constraints is a real issue.  How to allocate the resources that the Commissioner has – and those resources are the brigades, permanent and volunteer, as well as the money allocated by the Government – is a matter for the Commissioner.  A plaintiff can’t argue, and a court can’t rule, that the Commissioner should have allocated the budget in a different way.  And the budget has to cover all the functions of the service – fighting fires, hazmat response, rescue response, supporting other agencies, public education, training, administration etc etc etc.   An argument that ‘if you had responded retained fire fighters to my fire at my address on this date I would not have suffered a loss’ is just not tenable (and remember that’s assuming there is an obligation to send anyone at all).

The questions

Let me now return to my correspondent’s questions:

Is there any legal obligation that the service is breaking to save money and not call the closest brigade? 

No.

Are they ignoring a legal obligation to provide a 24 hour permanently staffed station when the permanent crew are out by not calling in retained firefighters to stand by? 

No; There is no legal obligation to provide a 24 hour permanently staffed station.  Stations are often unattended because firefighters are out doing their job but the station is still ‘staffed’; they’re just out doing their job.  If further fire fighters are needed they can be brought in from other stations, retained fire fighters called up or off duty fire fighters recalled to work – Fire Brigades Regulation 2014 (NSW) r  27.  It’s a matter for the Commissioner to determine whether fire fighters should be called up ‘just in case’ or only when the next fire call is received.

If a job was to happen in front of the permanent’s station and they didn’t have a truck there within 3 mins and someone died as a result of the slower response because it was chasing a fire call out of area when the closer retained station could of done it and they want to save money and not page the retained fire fighters to stand by are they being negligent?

No; there’s no guarantee that a fire station will have fire fighters there all the time.  Whether the brigade is at a fire 20 minutes away or just around the corner, if there is an accident in front of the fire station the people are still going to have to wait for a response.

And how could we go about getting this issue fixed if it comes in?

The fire service is a part of government, and so the issue of how its run and how the government allocates the budget between the fire service, the health services, education, policing, local government, national parks, roads and transport and all the other myriad of things that governments do is a matter for the government.  Influencing the government is a matter of politics.  If you think the fire service doesn’t get enough budget, or that the Commissioner is making poor decisions, then the answer is in politics.  Raise your concerns with the management, join the union, lobby your local MP, get active in the community (remembering that ‘A firefighter must not comment publicly on the administration of Fire and Rescue NSW, except with the approval of the Commissioner’ Fire Brigades Regulation 2014 (NSW) r 23) or run for elected office.   But the law of negligence is not going to help.  The law says these sorts of decisions are matters for the Commissioner and there’s no legal obligation to have fire fighters on a station at all times, or to have a 3-minute response time, or to call the closest retained brigade in preference to a permanent brigade that’s already on station and ready to turn out.

This question comes from a volunteer fire fighter.  I won’t mention the jurisdiction as it doesn’t affect the answer.   My correspondent is with:

… a small rural fire brigade located approximately 15 minutes from the nearest town, and a lot of the time our pagers are not activated for emergency calls in our area and the next brigade is 15-20 minutes away. Our district has guidelines set out for certain calls for example a structure fire in our village would be cause for the activation of us and another brigade (local Brigade plus back up) but the local Brigade is often overlooked. Would this have any legal implications if someone was injured or killed because the nearest unit wasn’t activated? Who would be held accountable? The duty officer? The officer in charge of the other unit responding for not ensuring the local brigade was notified?

My question comes because we had a fire call 3 minutes from our station, we didn’t know about it until a few days later when local farmer asked us why the local brigade didn’t show up and why they had to wait 20 minutes instead of 8 minutes.

In many recent posts I’ve discussed the decision in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223).   That case said that where a person comes to court and asks for an order saying that whatever a government department is doing, nor not doing, the court won’t intervene unless the decision ‘‘… is so unreasonable that no reasonable authority could ever have come to it…”.  So in this context, the fire service has to make decisions about who gets called and when.  One would assume that they will call the ‘fastest closest most appropriate resource’ (to borrow a phrase from an earlier correspondent – Responding ‘the closest fastest most appropriate resource’ in South Australia (June 6, 2016)) but there may be reasons for not doing that.  Provided those reasons are not ‘so unreasonable that no reasonable authority could ever have come to…’ the same decision then the service will still being complying with its obligations.

So the critical issue is why is this particular brigade not activated?  Is it that the pagers are in a dead spot so the calls aren’t received?  Are there too few members or they don’t have appropriate training and qualifications?  If the answer to those questions or ones like it are ‘yes’ then that may be OK.  Or are they not activated because a more senior officer has decided that he or she doesn’t like the captain? Or thinks the brigade is made of trouble makers? Or somehow their details have just not been entered into some CAD system so the ComCen don’t know to call them?    Those decisions could not be ‘Wednesbury’ reasonable or worse, they are no decision at all.   A person who lived in the community or otherwise had sufficient interest in the matter could for example, seek a review of a decision (if there was such a decision) to not activate the brigade.

The ‘Wednesbury’ test is a test of administrative law but it has also been included into torts law so today, if someone want to sue a government agency for damages based on how they have attempted to do what the statute (Act) says they are to do, they also have to prove ‘unreasonableness’ (See for example Civil Liability Act 2002 (NSW) s 43; Wrongs Act 1958 (Vic) s 84).   That means if someone has suffered a loss because of the delay in sending the further brigade, and not dispatching the local brigade, and the decision not to activate the local brigade was ‘so unreasonable that no reasonable authority could ever have come to…’ the same decision then that would be one step in allowing that person to establish a claim in damages.

They would still need to prove that the brigade owed a duty of care which is not easy – see Liability for fire – a review of earlier posts (January 8, 2016).  But a judge would, I suggest, be attracted to find a way to find a duty if he or she thinks the actions of the service cannot be justified.  For example, in Kent v Griffiths [2001] QB 36, an English court had to decide whether London Ambulance owed a duty of care to a person who had rung 999.  The ambulance service wanted to rely on the English cases that said that a fire brigade would not owe a duty in those circumstances (Capital and Counties v Hampshire Council [1997] QB 2004).  A critical issue was whether the ambulance service should be equated with a ‘health service’ or an ‘emergency service’.   Regardless of the merits of the arguments, I have no doubt that the judge found it easier to find in favour of the patient, and against the ambulance service, when he found (2001] QB 36, [5]):

… that there had been contemporary falsification of the records by the member of the ambulance crew. He [the judge] considered that he [the paramedic] had not been given any satisfactory explanation for the ambulance taking 34 minutes to travel 6.5 miles from its base to the claimant’s home. The judge was satisfied that the crew member had “withheld the true reason, whatever it might have been, why it took so long for the ambulance to reach the claimant’s house”. The crew member “knew full well just how critical was going to be the record which he made” of the time of arrival. In the absence of any reasonable excuse for the delay, the judge was “driven to conclude that the delay was culpable”.

The relevance of that is that the bulk of the common law says that a fire brigade does not owe a duty of care to those that call for their assistance, but a judge may well find a way to distinguish that if the judge thinks, in an example like I’m given, that the fire service was delayed for improper reasons (“we don’t call that brigade because I don’t like them”) or ‘culpable’ reasons (“We don’t call that brigade because we forgot they exist”).

Who would be held accountable? The duty officer? The officer in charge of the other unit responding for not ensuring the local brigade was notified?

Everyone is accountable for their own decisions.  Accountable means that a person might be held to account –ie to explain why they did what they did. The duty officer would be accountable if the reason the local brigade was not called was because he or she elected not to call them.  They may have a perfectly good reason; they may not.   As for the ‘officer in charge of the other unit responding for not ensuring the local brigade was notified’ I find it hard to believe that would be an issue.  I assume that the officer in charge of a responding brigade has enough on his or her plate without being expected to question ComCen as to whether or not they have activated another brigade – but that’s really a matter for those in the relevant service to consider.  Is it ‘normal’ for a responding captain to ask ComCen have they activated a closer brigade?  If it is then the responding captain would also be accountable for his or her decisions or actions – that is he or she might be asked to explain what was done, or not done, and why.

If by accountable you mean liable to pay damages, the answer is it will be the relevant state or local government authority that operates the service (depending on the jurisdiction).   If you mean ‘ultimately responsible for the decision’ then it is the relevant Chief Officer/Commissioner.

This question is phrased as a question on industrial law, rather than emergency law but the issues have wider implications including for emergency workers.

I have always been of the understanding that if a person is subject to, say, unacceptable behaviour from someone such as their manager, they should keep file notes/diary entries of ongoing occurrences of this behaviour so that a pattern can be established. However I was recently informed that such notes can only be used if the person who was having notes written about them was actually informed that these notes were being written. In other words, if a person isn’t told diary entries are being made detailing their unacceptable behaviour, then any notes substantiating this behaviour won’t be referred to in any subsequent unacceptable behaviour investigation. It should be noted the person making this assertion to me said it related to Commonwealth law, but not specifically which law!

This doesn’t seem right to me as I have often advised staff to keep such contemporaneous notes. Can you please advise if diary notes can be used in a case of harassment / unacceptable behaviour if the perpetrator was not informed the notes were being taken.

I can’t address the industrial law issues and perhaps there is some rule in industrial law or in some Commonwealth tribunal that says the notes can’t be used.   Speaking more generally, about the use of personal notes, they are not ‘evidence’ and can’t be put into evidence to prove that what is recorded is true, because that is called ‘hearsay’.  My definition of ‘hearsay’ is ‘an out of court statement admitted for the truth’.   A diary is an out of court statement, that is it was written ‘out of court’ so if you want to put the diary before a court to say ‘look it must be true it’s in my diary’ then that is an example of prohibited hearsay evidence.  So what use are file notes?  The text below is taken from my book Emergency Law (2013, 4th ed, Federation Press) p 18:

The other use of records is an aide-memoir or a tool to assist the person who wrote the record to refresh their memory should they be called into court to give evidence. In some cases where it is clear that the record maker has no recollection of the event, but did make a record at the time, the record may be given in evidence. One can imagine, for example, a fire officer who is called to give evidence in relation to a small fire and who is asked to remember some detail that happened three years previously, after the officer has attended many more fires. The officer may have a vague memory or no memory at all, of the particular fire. The officer may be able to use any record made at the time of the incident to refresh his or her memory about the matter.  To return to Lithgow Council v Jackson, discussed above, even if the patient record could not be used to prove how the injuries occurred, it could have been used by the paramedics, if they had been called to give evidence, to ‘jog their memory’ about the case and that may have allowed them to give more accurate evidence about what they saw and observed.

A record used as an aide-memoir does not have to be a “business record” but simply a record made at the time when the events where fresh in the person’s memory. Accordingly even a private notebook or diary entry can be used in this way.  This is relevant for people who may provide emergency assistance but not in the course of business. It would be prudent practice, after the event, for anyone who provided assistance at an accident to make a record of what happened, what they saw, heard and did so that the record can be used to refresh their memory at a later date.

In a book that has just published, Stuart Ellis and Kent MacCarter (eds) Incident Management in Australasia: Lessons Learnt from Emergency Responses (CSIRO Publishing, 2016) Euan Ferguson reflects on his experience as Chief Officer of the South Australian Country Fire Service during the 2005 Wangarry bushfires.  One of his lessons (p 9) is:

Write things down.  Much of my evidence at the Wangarry Coronial was based on detailed notes I took in the period leading up to and during the fire.  Because of these notes, there was a story to tell.  It was a story that was evidenced in my own hand and one that I was able to repeatedly and consistently return to.

Conclusion

Readers, and my correspondent, will note that I have not in fact answered or even attempted to answer the specific question as it relates to industrial law but whether or not the notes can be formally admitted into evidence, whether it’s an industrial matter or a coroner’s inquest into a fire or death, contemporaneous notes, that is notes written at the time of or soon after the event have a vital role to play in helping a person remember what happened and the details.   They help a person tell their story.

This question comes from WA but given it relates to interstate travel it could be from any jurisdiction.

An ambulance paramedic is travelling interstate/oversees and is being paid and in uniform.  A medical emergency occurs during the flight and the individual for obvious reasons is asked to assist. As an employee, the individual holds no authority to practice as a single responder, and would not have access to their normal equipment and medications.

Questions:

1. Am I correct in assuming the Civil Liabilities Act (WA)- Division 7 part 1D Good Samaritans would not apply as the person is employed at the time of the event occurring in the event that harm was done
2. To what extent does Division 7- professional negligence protect the individual? My interpretation of question 2 is that the Act would cover you in your capacity as a Paramedic, providing you are acting in accordance with practice that is widely accepted as competent professional practice
3. However to what extent does an organisation hold a responsibility to protect its employee in this circumstance where harm was done
4. Does vicarious liability still apply?

Discussion

1. Am I correct in assuming the Civil Liabilities Act (WA)- Division 7 part 1D Good Samaritans would not apply as the person is employed at the time of the event occurring in the event that harm was done?

That would certainly be arguable. In an earlier post Who to treat? A question for St John first aiders (June 30, 2013) I made the argument that in my view the Good Samaritan provisions of the Civil Liability Act 2002 (NSW) would not apply to St John volunteers on public duty as they are there holding themselves out to provide care – they are not acting without an expectation of reward.  In this scenario the paramedic ‘is being paid and in uniform’ so on one view he or she is clearly not acting ‘without expectation of payment’ (Civil Liability Act 2002 (WA) s 5AB).  But, on the other hand, at that very moment he or she is not actually engaged in providing paramedic services, rather they are a passenger on a plane and one might argue that stepping up to provide care was doing something that they were not at that time being paid to do.

Why do I split that hair?  I think if something went wrong and someone tried to sue (remember that is very unlikely) a judge could say, if he or she thought the case was without merit, that the good Samaritan provision (s 5AD) did apply; but if the judge thought there had been negligence, he or she could equally hold that s 5AD did not apply.   But putting aside the role of counsel in suggesting to judges how they can come to the result that they want to, I think as a matter of actual principle it’s correct – s 5AD can’t apply where the paramedic is in uniform and getting paid whether he or she is getting paid to be in an ambulance or flying interstate or overseas.

2. To what extent does Division 7- professional negligence protect the individual? My interpretation of question 2 is that the Act would cover you in your capacity as a Paramedic, providing you are acting in accordance with practice that is widely accepted as competent professional practice.

Division 7 of Part 1A of the Civil Liability Act 2002 (WA) is headed ‘Professional negligence’.  Relevantly that part applies to a member of one of the 14 health professions registered under the Health Practitioner Regulation National Law (Western Australia) (s 5PA(a)).  Paramedics are not yet a registered health professional so they are included in that list.

The Division also applies to ‘any other person who practises a discipline or profession in the health area that involves the application of a body of learning’ (s 5PA(b)).  Whether that applies to paramedics would be a matter for a judge should the issue every arise but see Are Paramedics members of a profession? (July 24, 2015).

The important part of Division 7 is s 5PB(1) which says ‘An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional’s peers as competent professional practice’.  This legislative enactment was a reaction to the High Court’s decision in Rogers v Whitaker (1992) 175 CLR 479.  Up until that time medical practitioners believed that the law said that the test for negligence was based on:

… the so-called Bolam principle, derived from the direction given by McNair J. to the jury in the case of Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582. In Sidaway v. Governors of Bethlem Royal Hospital, Lord Scarman stated the Bolam principle in these terms ((1985) AC 871, at p 881):

“The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment.”

In Rogers case the High Court said that the Bolam principle was not part of Australian law.  Mason CJ, Brennan, Dawson, Toohey and McHugh JJ held that:

… while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care… Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play…

but at the end of the day whether conduct meets the standard required by law is a legal question to be determined by a court and not the professional opinion of those that are subject to the inquiry by the court.  Section 5PB(1) is an attempt to ‘wind back’ that decision but it doesn’t actually mean much.

Assuming paramedics are not covered by Division 7 so what?  The question of whether a paramedic’s conduct in an mid-air emergency will be judged (if it be judged at all) by the question of what would a reasonable paramedic have done.  To answer that the court would need to look at the paramedics Clinical Practice Guidelines as they define what paramedics are trained to do and hopefully the evidence of other paramedics.  (Stopping to note here that in Ambulance Service of NSW v Worley that even though the issue was whether the Ambulance Service and/or the treating paramedic had been negligent, both sides called 5 doctors each, but neither party called a paramedic to give expert evidence as to what could have been expected from a reasonable paramedic ([2006] NSWCA 102, [30])).    That evidence would ‘have an influential, [if not]  a decisive, role to play’ in judging the paramedic’s performance.

3. However to what extent does an organisation hold a responsibility to protect its employee in this circumstance where harm was done?

I’m not sure I understand the question.  The employee is at work so the obligations to the employee are the same as they are whenever a person is at work (Occupational Safety and Health Act 1984 (WA)).

4. Does vicarious liability still apply?

In this case it would have to.  The paramedic was approached not because he or she was the passenger in seat 8D but because he or she was the passenger in seat 8D clearly identified as a paramedic and what the crew were looking for was assistance.  The reason the paramedic was travelling in uniform is because he or she was ‘being paid and in uniform’.  Whether they were travelling interstate for a meeting or overseas for an international deployment, they were at work, being held out by their employer as a representative of the employer (hence the uniform) and they were approached to perform tasks essential to their employment.  Vicarious liability would still apply.

A correspondent asks

… a question regarding adrenaline (epipens) and anaphylaxis.There does not seem to be any clear directives, and indeed there are conflicting opinions on what you can/should do. Here’s a scenario:

Jim is an advanced first aider/medic working at an event. Tom presents with signs & symptoms of anaphylaxis. He has his own epipen which he used before seeing Jim. However, the effects of the adrenaline are wearing off, Tom is in clear respiratory distress, and the ambulance is still some 10-15 minutes away. Assuming that there is another person’s epipen available, does the reasonable medic isolate Betty (who owns the other epipen) and, assuming Betty agrees to “donate” her epipen, use her prescribed medication to treat Tom, and ultimately, save his life? Would a similar situation involving minors have different answer? Would a reasonable medic use the epipen?

An EpiPen is an auto-Injectors that delivers a measured dose of a synthetic version of adrenaline—epinephrine. (https://www.epipen.com/about-epipen/what-is-epinephrine).  According to ‘NetDoctor’ (http://www.netdoctor.co.uk/medicines/allergy-and-asthma/a6668/epipen-adrenaline/)

EpiPen auto-injectors are prescribed to people who have a history or recognised risk of going into anaphylactic shock due to a severe allergy. The EpiPen is intended for self-administration, or administration by a family member or carer, in an emergency. Two EpiPens should be carried with you at all times…

The EpiPen is designed to be used by people with no medical training at the first signs of an anaphylactic reaction.  “Adrenaline autoinjectors are available from pharmacies without a prescription at full retail price (not PBS subsidised)” (http://www.allergy.org.au/health-professionals/anaphylaxis-resources/adrenaline-autoinjectors-faqs).

In the Poisons Standard (June 2016) ‘epinephrine’ is referenced as ‘adrenaline’ and is listed in Schedules 3 and 4.   If an epipen can be purchased from a pharmacy without prescription it must be in Schedule 3 ie ‘Pharmacist Only Medicine – Substances, the safe use of which requires professional advice but which should be available to the public from a pharmacist without a prescription’.

There are two types of epipen – “EpiPen (epinephrine injection) 0.3 mg and EpiPen Jr (epinephrine injection) 0.15 mg” (https://www.epipen.com/about-epipen/what-is-epinephrine). According to the Australasian Society of Clinical Immunology and Allergy (http://www.allergy.org.au/health-professionals/anaphylaxis-resources/adrenaline-autoinjectors-faqs, FAQ 20):

Higher dose adrenaline autoinjectors (yellow label devices) should NOT be administered to children under 1 year of age [but] In children aged 1 to 5 years of age … if only a yellow label device is available (containing 0.3mg of adrenaline) this should be used in preference to not using one at all.

What follows from that is that epipens aren’t ‘tailored’ for individual patients.  A person either needs an epipen or they don’t. Using one person’s epipen is not going to deliver a different version or the dose of ‘epinephrine’.

A person who ‘…  holds a current first aid certificate issued after completion of a first aid course approved by the WorkCover Authority …  and the person has received training on the symptoms and first aid management of anaphylaxis’ is entitled to possess and use adrenaline (Poisons And Therapeutic Goods Regulation 2008 (NSW) Appendix C, cl 13).  I will assume that Jim has completed approved training in anaphylaxis first aid.

Discussion

In the scenario there is no issue of giving an epipen to someone who hasn’t had the relevant diagnosis.   Both ‘Tom’ and ‘Betty’ have their epipen. The epipen may be ‘prescribed’ for Betty in order to allow her to buy it at a subsidised price, but we know that it will be the same as the epipen for Tom.

The question I ask is not whether Jim can use Betty’s epipen to save Tom, but what possible reason would stop him?  Betty’s agreed, Jim’s trained and knows how to use it, and Tom needs it.  In deciding whether or not a duty of care arises a key issue is ‘vulnerability’.  Tom is vulnerable, he’s likely to die.  Can he do something to protect himself?  No, he’s not got another epipen. Can Jim?  Not without Betty’s assistance but given Betty’s volunteered her epipen then he not only can see the need, he knows what is required and has the opportunity to do something.  And he’s not a mere volunteer (ie someone who just happened upon the scene and volunteers to help) he’s ‘an advanced first aider/medic working at an event’ so Tom’s presumably come to him for help.

What are the costs? It deprives Betty of her epipen should something happen to her.  One certainly couldn’t insist that Betty give up her epipen or take it from her, but if she volunteers it that’s fine.  There is no limit on its use, it’s not a ‘prescription only’ drug and even if it is Jim is authorised to take possession of it from Betty and use it.  There really is no reason not to do it.   And every reason to do it. Imagine your Tom’s loved one and it turns out that when Tom was dying, Betty was saying ‘I have an epipen use it’ and Jim, the onsite first aider says ‘I won’t use that, it’s yours’ with the result that Tom died?  If we accept that there is a duty of care, the test for breach is set out in the case that is quoted so often on this blog, Wyong Council Shire v Shirt (1980) 146 CLR 40,.  There Mason CJ said (at p 48).

… what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

The magnitude of the risk is that Tom’s going to die.  I’ll leave it to clinicians to say how probable that is but remember we’re asked to assume ‘Tom is in clear respiratory distress, and the ambulance is still some 10-15 minutes away’.   What’s the expsense of treating him?  The cost of Betty’s epipen which she’s volunteering.  Is there any ‘difficulty and inconvenience of taking alleviating action’?  Only that it leaves Betty without an epipen.  There are no conflicting responsibilities given Jim’s actually authorised to use and administer the drug.  Failure to take action would appear to be an axiomatic case of neglect and negligence.

Conclusion

Does “the reasonable medic isolate Betty (who owns the other epipen) and, assuming Betty agrees to “donate” her epipen, use her prescribed medication to treat Tom, and ultimately, save his life?”

I can’t see how a reasonable medic would do anything else.

Would a similar situation involving minors have different answer?

No, even if Betty only had an epipen and not an EpiPen Jr it should still be used.

Would a reasonable medic use the epipen?

I can’t see how a reasonable medic would do anything else.

A Victorian paramedic wants to know

… how much legal standing having a patient sign your Patient Care Record acknowledging they do not wish treatment or transport carries?

I’m talking about cases here where you assess a mentally competent patient, deem they probably should go to hospital to be treated for whatever, but they decide they don’t want or need to go.  Our case sheets here carry a disclaimer broadly stating that the paramedic has assessed the patient and advised them they should go to hospital.

If the patient wishes to refuse transport, that is fine, but we are then supposed to get them to sign, in fact policy requires us to get them to sign.  Notwithstanding it is a policy requirement, I am wanting to know the legal strength, and what if the patient refuses to sign?

The other point is, we are getting the patient to sign a PCR that we have not fully completed, in most cases we would have just entered their personal details and the rest would be added later when we clear the scene.  Would this have a bearing if, for whatever reason, the case later went to court?

Over the years, I have heard varying opinion –  from you NEED to get this signed to protect yourself from any adverse events, – right through to “it makes no difference legally whether the patient signs or not”

The patient’s signature on the Patient Care Record is evidence confirming the details are true.  But the details of what?  Not the details on the PCR but whatever it is they are being asked to sign.  Let me explain.  In NSW a patient is asked to sign a Non-Transport Declaration (I use NSW even though my correspondent is from Victoria, as I couldn’t find the Victorian equivalent online, but a NSW form was online (Patient Health Care Record SOP (Version 4.0 July 2009), <http://www.ambulance.nsw.gov.au/media/docs/phcr_version_4-ab6dab58-37b5-453c-8fda-720f86212df0-0.pdf> p 65).  I’ll assume that the Victorian (and all states’ equivalent) is in similar terms.

So in this case the patient is acknowledging that they understand they have been assessed, that a full and complete medical examination is not possible, and that if there is any change they should seek further advice.  They are not certifying that everything on the PCR is correct – they couldn’t in any event certify what the paramedic found on examination, what treatment if any was given, what observations were made or conclusions drawn.  So the first point is that it doesn’t really matter that they are being asked to sign even though the PCR is not fully completed; but we’ll come back to that.

If the document is evidence then that is the extent of its legal standing.  It doesn’t prove that the patient has indeed been assessed by paramedics, or that they do in fact understand that if there is any change they should seek further advice but it raises evidence that that is the case.

Assume that shortly after leaving the scene the patient collapses and does end up in hospital with a serious and critical illness or injury and the question becomes ‘why didn’t the original crew transport?’  If the patient says ‘they told me I didn’t need to go’ or ‘they refused to take me even though I begged them too’; then the patient’s signature on that form will be evidence against those claims and he or she will have to explain how their signature got there.  That is not impossible – “I didn’t know what I was signing”, “They told me I had to”, “I couldn’t read it” etc.   All of that evidence goes into the mix for a judge or jury to decide what they believe actually happened.

These things (documents and forms generally, not just this one) really come to grief when they are used because people believe they have to be, or that they are a guarantee, even when it’s not for a proper purpose.  A clear example in this context would be using a ‘Refused treatment’ form when really what you mean is ‘Paramedic advises patient treatment not required’.   I see now that NSW Ambulance has a ‘Patient Transport Decision’ form (see below):

Once upon a time though recommending non-transport was frowned upon so people would claim the patient had refused transport when clearly that was not the case (see Transport everyone or act as a professional? A question for paramedics (May 6, 2013)).   In that case getting a person to complete a card saying ‘I refuse treatment’ when really what happened is ‘I have been advised I don’t need treatment’ just brings everyone into disrepute and is likely to make a court view any evidence with suspicion.

It follows that the absence of a signature doesn’t prove anything either.  You can’t make a patient sign the document. If they don’t the paramedic can still give evidence as to the conversation that occurred and the circumstances in which advice was given, rejected and the patient refused to sign the declaration.  Critical here would be the paramedics ‘contemporaneous notes’ that is notes written at or soon after the time of the event where you record what happened and what was said (and try to record conversations in the first person ie I said …; he said ….’).

Conclusion

The questions I was asked were:

… how much legal standing having a patient sign your Patient Care Record acknowledging they do not wish treatment or transport carries?

Answer: its evidence that the things stated on the card are true – using the NSW example the signature is evidence that the patient understood that they had been assessed, that a full and complete medical examination was not possible, and that if there was any change in their condition they had been advised to seek further advice.  Having said it is ‘evidence’ means it does not prove, conclusively that those things are true, but the presence of the signature ‘could rationally affect (directly or indirectly) the assessment of the probability’ that those things did in fact happen (Evidence Act 1995 (NSW) s 55).

… and what if the patient refuses to sign?

Again that is evidence.  If in court the patient says ‘I didn’t sign because it wasn’t true’ then the absence of signature might suggest that is the case.  If the paramedic’s evidence, supported by notes taken at the time that says something like:

‘Patient refused treatment and left the scene.  I said ‘Excuse me sir, I really think you should come with us to hospital, I’m really concerned about your injury’.  He said ‘F#@- off’ [but in your notes you would actually write the words used, but this is a public blog]. I said ‘would you mind signing this form just to confirm that I’ve explained the situation to you.  He said ‘F#@- off’ and left the scene in a car driven by a person I didn’t know.

Then the absence of signature could confirm that version too.

… we are getting the patient to sign a PCR that we have not fully completed, in most cases we would have just entered their personal details and the rest would be added later when we clear the scene.  Would this have a bearing if, for whatever reason, the case later went to court?

As I said that doesn’t really matter as the person isn’t endorsing the entire PCR.  That may be an issue if the suggestion is that you completed the PCR after something went wrong.   So the patient refuses treatment, you move onto the next job, then the next and then you see your patient in the resus bed at hospital and realise things have gone from bad to worse so you then get out the PCR and start filling it out with the ‘Refused Treatment’ declaration right there in front of you. There may be some room for suggestion that in then filling out the PCR you put entries in, or omitted them, in order to make the decisions appear more ‘reasonable’.  That’s got nothing to do with the Non-transport declaration really, just the need to complete records ASAP and not when you begin to think they might actually be called for.

Over the years, I have heard varying opinion –  from you NEED to get this signed to protect yourself from any adverse events, – right through to “it makes no difference legally whether the patient signs or not”

It really does make ‘no difference legally whether the patient signs it or not’.  Should the issue arise the issue will be – did the paramedic explain the situation to the patient and did the patient competently refuse treatment?  The signed form is part of the evidence to go into the mix for the court to consider.

With the recent severe weather and many volunteers responding to help their community, the NSW Premier made a declaration under Part 3A of the State Emergency and Rescue Management Act 1989 (NSW).  You can read the declaration on the NSW Legislation website.

Section 60B of the State Emergency and Rescue Management Act 1999 (NSW) says:

An employer must not victimise an employee of the employer for being absent if the absence was due to the employee taking part in emergency operations as a member of an emergency services organisation and the absence occurred while this Part applied to the operations (pursuant to an order of the Premier under this Part).

Victimise means much more than just dismiss.  According to s 60C:

An employer victimises an employee if the employer:

(a) dismisses the employee from employment with the employer or terminates the engagement of the employee by the employer, or

(b) alters the employee’s position in his or her employment with the employer, or alters the circumstances of the employee’s engagement by the employer, to the employee’s prejudice, or

(c) otherwise injures the employee in his or her employment with, or engagement by, the employer.

In other words it is unlawful, in NSW to sack or otherwise adversely alter the terms of a person’s employment because they were on emergency service duty.

With the declaration in place (and it remains in place for 30 days), any employer who victimises an emergency service volunteer commits a criminal offence (s 60B) with a maximum penalty of $3300 (s 60B and Crimes (Sentencing Procedures) Act 1999 (NSW) s 17, which provides that in NSW a penalty unit is worth $110).  If the employer is convicted the Court may also order the payment of compensation, that the employee is reinstated and various other remedial orders (see s 60F).  I have not heard of any NSW employees being victimised because of their decision to help the community as volunteers, but at least those that are responding to the current emergency have, with the Premier’s declaration, added legal protection.

1. What are the legislative response for SES in relation to Animals

One of the functions of the SES is ‘to carry out, by accredited SES units, rescue operations allocated by the State Rescue Board’ (State Emergency Service Act 1989 (NSW) s 8(1)(e)).

According to the State Emergency and Rescue Management Act 1989 (NSW) s 3, rescue means (emphasis added): ‘the safe removal of persons or domestic animals from actual or threatened danger of physical harm’.    According to the Prevention of Cruelty to Animals Act 1979 (NSW) s 4, a domestic animal is ‘an animal which is tame or which has been, or is being, sufficiently tamed to serve some purpose for the use of human beings, or which, although it neither has been nor is being nor is intended to be so tamed, is or has become in fact wholly or partly tame’.

It follows that an SES unit that is an accredited rescue unit is required to respond to rescue ‘domestic animals’ which would include traditional pets (cats, dogs etc) but also farm animals and the like.

2. Can SES Bronze Licence (or any other licence), drive an operational vehicle (rental unequipped) with an Amber Flashing Light?

Putting aside the issue of SES licence, I’ll rephrase that question as ‘Can the SES put a amber flashing light on a rented vehicle that is being used as part of the operational response to an emergency?’  The answer is not what one might think.  The Road Transport (Vehicle Registration) Regulation 2007 (NSW), Schedule 2 – Vehicle Standards cl 124 says that a State Emergency Service vehicle may be equipped with blue or red flashing light (and I note that everyone interprets ‘or’ to mean ‘and’; cl 124(2)(p) and 124(7)(a)).  But what is an SES vehicle?  That’s not defined.  Does it mean a vehicle owned by the SES or operated by the SES?  I would suggest it has to mean the later as an agency like the SES may enter into all sorts of arrangements to access vehicles including leasing them or, in the past, using vehicles provided by local councils. The SES aren’t going to put roof bars and radiator lights on a car they’ve borrowed for the day but they may well do so on vehicles that are being supplied as some sort of vehicle leasing/fleet arrangements.  The issue isn’t really who ‘owns it’ but who is operating it.  If that’s the case, why not a rental vehicle too?

That of course doesn’t answer the question. The list of vehicles that can have flashing warning lights goes from (a) to (q).  The colour for police, ambulance, fire, SES and some other vehicles are set out in cl 124(7).  If the type of vehicles is not listed then s 124(7)(e) applies and it says ‘in the case of any other vehicle-a yellow light unless otherwise approved by the Authority’.

If I’m right and a hired vehicle can be an SES vehicle if it’s being used by the SES for operational reasons, then it has to be fitted with a red or blue light (cl 124(7)(a)) not a yellow light.  (Let me add I don’t think any vehicle driven by a member of the SES becomes ‘an SES vehicle’ so I’m not suggesting people can put flashing lights on their own cars.  But if a vehicle is hired by the SES then it could be an SES vehicle).   So the answer is ‘no, they can’t have a yellow or amber light, but they could have a red or blue one’.   Of course whether the SES wants to put a red or blue light on an otherwise unmarked car, and whether that’s a good idea, are different questions.   John Killeen, author of Ambulance Visibility Blog may have some thoughts on those questions?

A sports trainer or first aider treats a person, hands the care to paramedics, but do they then take back the care of the patient.

I am a Level 2 sports trainer with about 10 years’ experience. Recently I had a player knocked out for approx. 15-20 secs. On field assessment there was no signs or symptoms of concussion or injury. Player was moved to the bench and then had delayed onset concussion signs and symptoms and complained of a sore neck. Player deteriorated rapidly and became emotional unstable. I called an ambulance and they arrived 7-10 minutes later. I had performed inline manual support of player’s neck. Paramedics determined it was soft tissue (which I was pretty sure it was but followed protocols.) Paramedics then advised player that they were happy for him to go home and be monitored by his mother and did not transport him to hospital. I followed up with patients mother the next day as she is a friend of mine. She advised that he had a big headache, sore neck and was still not quite right. I suggested she get medical advice. A colleague has queried if I then took back the duty of care in following up and giving advice. What are your thoughts on this? I have resumed duty of care? I always follow up with serious cases the next day or 2 and don’t want to put myself at risk.

Let me change the facts a bit and remove the words ‘as she is a friend of mine’; that is we can explore the point with more clarity if the only relationship is first aider/patient.

The Civil Liability Act 2002 (NSW) s 5B (and its equivalent in each jurisdiction) says:

A person is not negligent in failing to take precautions against a risk of harm unless:

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

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

If we take that as a starting point, there is no doubt that the trainer/first aider owes a duty of care to their patient on the playing field.   I accept that, in the scenario I’m given, the care provided by everyone met the requirements of ‘reasonable care’. For my correspondent it means the ambulance has been called, paramedics have assessed the patient and I accept made a reasonable decision to allow the person to go home with his mother.  If that was the end of the story that would, indeed, be the end of the story.  If the patient later suffered complications or their condition deteriorated it does not follow that the care provided up to that time has been reasonable.

The complication is that my correspondent rings the next day to check up on the patient.  I think there can be no doubt that at some point in the conversation the question ‘how is he?’ will be asked. There are two possible answers. Either 1) ‘he’s fine everything’s good’ or 2) ‘he’s not fine’ in fact the very answers my correspondent was given serve as an example of the second type of answer, ‘he had a big headache, sore neck and was still not quite right’.

If the answer was (1) ‘he’s fine’ all well and good.  If the answer was a type (2) answer, what do you do with that information?  You can either say ‘oh dear, sorry to hear that, I hope he gets better soon’ or ‘gee, that’s not so good, you should probably get medical advice’. In some circumstances the answer might be ‘we have to get off the phone and you have to call triple zero and ask for the paramedics’.

What’s the risk?  Let’s assume that the person has spinal or head injuries, or even both.  The risk could be catastrophic if care isn’t obtained.  Remember I’m assuming that the only relationship is first aider/patient, not that there is a friend or family relationship.   In that case  the trainer/first aider has special knowledge, perhaps more than the patient or his carer.  The trainer/first aider, because of that knowledge, knows of the risk and of the need to care.  Presumably the carer does not (if they did they would already have sought that extra care).  So you have a vulnerable person, the trainer/first aider has the relevant knowledge and can do something to protect the vulnerable person (ie give advice) and if they don’t the vulnerable person can’t protect themself because they don’t know of the need to do so.

Imagine if later the person drops dead and it’s found that they had cerebral oedema and if they’d been brought to hospital earlier it could have been treated and their life saved.  I can imagine the carer, in our scenario the mother, saying ‘The person who treated him rang me and asked how he was, I told him and that person didn’t say ‘seek medical care’ so I didn’t think to do so. If it was serious that person would have or should have said something’.  And that argument is attractive, because why else did you make the phone call?  If you’re not prepared to give advice if the answer is ‘things aren’t good’ what’s the point of following up with the person?  There have been cases where doctors have been liable because in consultations they didn’t stress the need to get further care or follow up on tests or the like and the plaintiff/patients have claimed ‘they didn’t tell me it was urgent or important or critical’.  I think a similar argument could work here.

Why did I remove the words ‘as she is a friend of mine’?  Because if there’s a pre-existing friendship the call can be explained by that relationship and one would understand that a friendly inquiry does not create a legal duty, but I would still expect advice to be given to seek care.  But if there is no pre-existing relationship, the only reason for the phone call is because you, the person making the call, was the person who provided care at the field and you are not providing follow up care.   If you don’t have in mind what you are going to say if the answer to ‘how is he’ is ‘not good’ then why are you making the call?

So yes, I think making the follow up call does bring with it a duty to respond ‘reasonably’.  That doesn’t mean that the caller has to rush over and provide an ambulance service or to deliver advice and care beyond their level of skill or expertise.  In this case a reasonable response may be exactly what was given ‘I suggested she get medical advice’ but the alternative of saying nothing or advising the person to do nothing in circumstance where they know you are a relevant health carer so you know your advice is, in the circumstances, required and likely to be acted on would be indefensible and could be negligent.

This question, with regard to the potential legalities surrounding the response of the closest fastest most appropriate resource to fire or other emergency, comes from a member with affiliations with both the South Australian Metropolitan Fire Service and the South Australian Country Fire Service.  My correspondent says:

In the peri urban areas of Adelaide city there is an area of interface between the SAMFS [Metropolitan Fire Service] and the SACFS [Country Fire Service]. The MFS have a clearly gazetted fire district (under legislation) with a boundary and everything outside of this is designated as CFS area (although to my understanding this is not a gazetted area just “CFS area” ie: not gazetted fire district).

As the city has grown and expanded we now have a situation where the volunteer CFS brigades are responsible for an area with major urban risks which traditionally were wheat paddocks or scrub or sparsely populated.

The response of emergency services is coordinated through a Computer Aided dispatch system (SACAD) which is supposed to respond the closest, fastest most appropriate resources, however here is the rub. There is no delay allocated against volunteer response as opposed to fulltime response. Resource responses are submitted for entry into CAD by local volunteer officers despite the fact that the local fulltime station would statistically have a much faster and not to mention, guaranteed response over the local volunteer resources.

In a recent example a fire occurred in an area of MFS and CFS interface in which the local MFS resource was the closest most appropriate resource however were not responded due to local CFS response plans in CAD.  The local volunteer unit took a period of time to assemble a crew and mobilise to the fire.  This time period was of such an extent that if the local MFS station had been mobilised at the same time (time of call) they would have been on scene and fighting the fire approximately one minute before the local volunteers became mobile from their station.

The incident was in CFS area (just) and as such response plans are under the control of the local CFS volunteer officer.  In this case they had not included the (closer) MFS station in their response plan.

The legal question is… Where do the emergency services and indeed the Government of SA stand in supporting a system which neglects to send the fastest closest most appropriate resource without a system of checks and balances against service delivery and what, if any, action could the local homeowner, whose house has burnt down, take against ESO’s who are consciously not including the fastest, closest most appropriate resources.

Will the legislation protect the actions (or lack of action) of the CFS in this example or is there a higher duty to compel ESO’s to put the community first and certainly before any inter-service rivalries?

A fire district is established by the Fire Services Commission (Fire and Emergency Services Act 2005 (SA) s 4).   The South Australian Metropolitan Fire Service (MFS) is, amongst other things, required to ‘provide services with a view to preventing the outbreak of fires, or reducing the impact of fires, in any fire district’ and ‘provide efficient and responsive services in any fire district for the purpose of fighting fires…’ (s 26).  Fire services in those part of the state that are not part of a proclaimed fire district are provided by the Country Fire Service (CFS). The CFS has similar functions to the MFS (s 59).   Both the MFS and the CFS can operate in areas that are the responsibility of the other service (s 4(4)) and take control of the response to an emergency if the other service is not yet in attendance (ss 42(2)(E) and 96(2)(D)).   The Act does not say that either agency is required ‘to respond the closest, fastest most appropriate resource…’

Even so, it is the case that the MFS is the agency for responding to fires within a fire district, and the CFS is the agency for responding to fires outside a fire district. If the property in question was outside a fire district, then responsibility for managing the response lies with the CFS.   In these days of ‘all hazards, all agencies’ the agency in charge of response does not need to actually ‘respond’ they could ask another agency to assist.  So I infer there’s nothing to stop the CFS asking the MFS to respond to a fire outside the fire district – save that removing that appliance from the fire district does necessarily leave the fire district with less cover.

I don’t know, from the facts given, whether or not a duty officer has to make a call on what appliance to respond to each call, or whether the response plans are determined, loaded into CAD and then the despatcher applies them.  Either way it doesn’t really matter.  Putting aside the assertions that the decision here was somehow improper or based on inter-service rivalry, and without wanting to get into an actual case and an actual decision, I can look at general principles.

The fire services and the South Australian Fire and Emergency Services Commission are given broad functions and powers under the Fire and Emergency Services Act 2005 (SA).  Having been given those broad directions, it is up to them to consider all they ways fire services can be delivered and make choices.   Those choices include questions of where to put fire stations, how many fire fighters to employ or volunteers to engage, what appliances to buy, response protocols and the like.  Making those decisions needs to take into account the budget, the population, the state of the fire science, what’s available, firefighter welfare etc.    That may mean that even if the appliance is the closest, it may not be the most appropriate.

A person who thinks that a fire service or the Commission has failed to perform its functions could seek ‘judicial review’ to compel them to perform their tasks according to law but a court will recognise that the Parliament has given the discretion as to how to perform the tasks required of the service to the service and its Chief Officer.  A Court will not override that decision unless the decision ‘… is so unreasonable that no reasonable authority could ever have come to it…’ (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223).

In order to sue for damages a person in the situation described would have to show that the decision to despatch the CFS, not the MFS was negligent.  The first thing that would require was establishing that the fire service owed the resident a duty of care and generally, a fire service does not – see Liability for fire – a review of earlier posts (January 8, 2016).   If they could show a duty of care they would have to show the action was in fact negligent, that is it was below the standard to be expected of a reasonable person in the defendant’s position.  To assess that the court needs to consider

… what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position. (Wyong Shire v Shirt (1980) 146 CLR 40, 48).

So the person responsible for nominating the appliance and who considers that the MFS may be quicker than the CFS has to consider what difference will it actually make to the outcome?  What impact will it have on the fire district to have their appliance leave, (assuming that the fire station has probably been put there to service the relevant community)? And that the policy is that the CFS respond outside a fire district, the MFS inside one.

The homeowner would also need to show that a different decision would have led to a different outcome.

So the answer to the question ‘what, if any, action could the local homeowner, whose house has burnt down, take against ESO’s who are consciously not including the fastest, closest most appropriate resources’ is not much.  The word ‘consciously’ is I think a pejorative here, in that I believe my correspondent intends to imply some mala fides which I don’t accept.  But consciously can mean ‘knowingly’ and the CFS may well despatch a volunteer brigade knowing it will be slower than a full time brigade because for a whole variety of reasons, including the need to keep the urban brigade for fires in the fire district.  Provided that is not so unreasonable that no-one would think the relevant officer was attempting to perform his or her duties, and provided it is supported by reasons (ie ‘reasonable’) then there will be no action the homeowner can take.

If the MFS station is close to a growing population but the boundary of the fire district is such that CFS brigades from further away are responding, then the real issue lies not with the fires services but the Fire and Emergency Services Commission.  It is up to the Commission to ‘… establish a fire district or fire districts for the purposes of the operations of SAMFS‘ (s 4(1)).  Further the Commission may ‘vary the boundaries of a fire district’ (s 4(2)).  The Commission is also ‘to provide for the effective allocation of resources within the emergency services sector’ (s 8(1)(e)).    If the population of ‘the city has grown and expanded’ to such an extent that a volunteer CFS brigade can’t really provide the necessary support then it might be incumbent upon the Commission to change the boundary and bring that population within a fire district.  Making that decision is more complex than just deciding who can respond fastest, because if that was the only issue every fire station would be staffed 24 hours a day, but communities can’t afford that.

The various duties or functions set out in the Act are statutory duties, but an aggrieved person can’t necessarily sue for a breach of statutory duty, there has to be an indication that the parliament intended that someone could sue (see ‘Black Saturday’ litigation (May 11, 2011).  So the chances of a home owner being able to sue are slim to zero.

The issue here is political. Governments get elected to do various things and one of the things we expect them to do is manage the emergency services but also to make allocations of resources across competing demands.  More money could be spent on emergency services but that would mean less money on something else.  Decisions have to be made but for every decision there are alternatives.  In Australia there is a separation of powers between the courts, the parliaments and the executive (represented here by the Commission, the CFS and the MFS).  The parliament makes the law (the Fire and Emergency Services Act 2005 (SA)), the executive have to put it into action and the court’s role is to ensure that the executive acts in accordance with the law – not to ensure that the executive makes the decision that a litigant or a judge would like them to make.  If the executive are making decisions that are within their discretion, a judge won’t interfere.  In this case the parliament has said it is up to the Commission, the MFS and the CFS to determine how fire services are provided.  If they are ignoring their duties, acting in bad faith or making decisions that are ‘so unreasonable that no reasonable authority could ever have come to it’ then a court may have jurisdiction to intervene.  Otherwise, if a community is unhappy with the decisions that are being made, it is up to them to take it up with the government or, if a person is really passionate about the matter, run for election!

Conclusions

The questions put to me were:

Where do the emergency services and indeed the Government of SA stand in supporting a system which neglects to send the fastest closest most appropriate resource without a system of checks and balances against service delivery?

It is up to the government, through the responsible minister to determine issues of emergency service management.   There is no obligation to have a system that guarantees ‘the fastest, closest most appropriate resource’ particularly as the ‘fastest, closest’ may not be the most appropriate.  It is up to the agency (with the government ultimately responsible) to decide what is ‘most appropriate’.

What, if any, action could the local homeowner, whose house has burnt down, take against ESO’s who are consciously not including the fastest, closest most appropriate resources.

None.

Will the legislation protect the actions (or lack of action) of the CFS in this example or is there a higher duty to compel ESO’s to put the community first …?

Yes, the legislation and the common law will protect the CFS in this example unless there is perhaps actual mala fides which I doubt (despite my correspondent’s implications to the contrary).  If there is a duty to ‘put the community first’ it is debatable what that means.  If the MFS were despatched to the fire and then someone’s house, in the fire district, burned down they might say that the decision to despatch the MFS did not ‘put the community first’.    How to deploy resources, not only how to deploy appliances that are sitting at a station, but where to put stations and what policies to put in place, are complex issues that require consideration of multiple factors so they are given ultimately to the Chief Officers.  That in a given case they mean a delay that another policy may have avoided does not mean that anyone is failing to ‘put the community first’.    If a person thinks the agencies are not putting their community first there remedy lies not in law, but in running for elected office and making the case in the forum of government.

It is clear to anyone paying attention to the news that there are significant industrial issues affecting Victoria’s Country Fire Authority and the relationship between employed firefighters, the United Fire Fighter’s Union, the CFA and CFA volunteers.  The matter is such that I’m asked a ‘couple of questions … that centre around the current political climate’.

A mass rally has been called for tomorrow* at Treasury Gardens in the Melbourne CBD, the volunteer association has directed members to wear their yellow PPC so as to identify them as CFA volunteers (has brand logo’s attached). The Chief office has in the past made it clear to employee’s (united Fire Fighting members) that clothing identifying the organisation was against CFA policy and not to be worn to political protests or rally’s. As a result, the United Fire Fighters Union has its own unbranded PPC for such events.  Would it be reasonable to apply the Chief Officers clear instruction to volunteers? If not, then what would constitute the disparity?

Sources have also indicated that some brigades would refund members (and presumably their families) the financial cost to attend the rally/protest, as this reimbursement comes from publicly donated monies (fund raising) for the purpose of administration and operational costs not covered by the organisation does this reimbursement raise propriety issues if not constitutional or legal implications when used to support political action?

We have been informed in the past that whilst monies gained from fundraising and donations are considered the individual brigades the reality is that the CFA has ownership and ultimately responsibility for said accounts. Does this in anyway impact legally on the decision to reimburse members.

* I received the email on Sunday 5 June so inferred that the rally was scheduled for Monday 6 June but others have said it will be/was on 5 June.

Whilst the questions are very interesting, I don’t think I should answer them.  On the ‘About’ page on my blog I say:

This is not a place for providing specific legal advice, so I won’t be able to answer questions that are based on actual events … If your concern clearly falls in the above categories then understand I may not be able to give an answer, but remember there is no harm in asking and if I think I shouldn’t answer a question or comment on an issue, I’ll say that.

Given the ongoing nature of the current dispute this is clearly about ‘actual events’ not a theoretical possibility and it is likely (if I can be so bold) that what I say might actually affect decisions by people about whether they go to the rally or what they wear.

And I can’t give specific advice here even if I wanted to. I haven’t seen ‘the Chief Officer’s clear instruction’ so I don’t know if it applies to volunteers or not.   As for the use of funds that would require detailed knowledge of how particular brigades are established, and relevant financial delegations and Victorian rules on using finance.    The CFA is different to say the NSW Rural Fire Service.  The CFA registers brigades upon their application so it is still a more old-fashioned model where people can form a brigade and then apply to be part of the CFA (s 23(1)(b); noting that it is an offence to operate an unregistered brigade (s 26)).  In New South Wales, RFS brigades are established by the RFS so they don’t have any independent existence (Rural Fires Act 1997 (NSW) s 15; see also ‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015)).   If CFA brigades are established and then registered they may have property independent of the authority and that is implied by s 22 that provides that ‘A person in whom personal property is vested for or on behalf of a brigade …may a) transfer the property gratuitously to the Authority’.  I can certainly understand why the CFA management would not want brigade money spent on sending members to rally against the government but whether they have that much direction over the use of brigade funds would require much more detailed knowledge of actual delegations and the structure of the particular brigades involved. It is not for me to tell CFA brigades or their members what they can do with their money in circumstances where it is at least likely that they may seek to act on that advice. 

Finally, does it raise constitutional issues?  Yes it must, see Speaking out on social media (May 9, 2016) – there is an implied right to free political speech. One can understand why the CFA doesn’t want people to represent themselves as CFA members when protesting some general government policy or running for election.  For example, a person handing out ‘how to vote’ cards at the forthcoming federal election should not wear their uniform as their CFA membership is irrelevant and would be an attempt to add some improper link to the CFA.  But a protest where the protest is about the CFA may be a different issue. People don’t need their CFA uniforms to show they are members of the CFA if they are at a protest of CFA members expressing their views on issues affecting the CFA.  Whether they are in their PPE or not it’s clear that they are members of the CFA and their membership of the CFA is an issue of essential relevance to exercising that right of political free speech – the very point is that the people protesting are members of the CFA.  We’ve seen fire brigades protest before using fire service appliances and uniforms – see darinsullivan.net Fire Strike and associated photos and description of fire fighters and appliances rallying before the NSW Parliament.   Whether that is sufficient to attract the constitution right should there be an attempt to discipline members who wear their PPE to the rally would be a debatable point.   To take that debate further would, however, again be giving specific legal advice to people who may well choose to act on it.  I’m in no position to say to members of the CFA who may be planning to go to the rally, that they do or do not have a constitutional right to wear their uniforms.  

So there are legal issues here. Issues of:

• How autonomous are CFA brigades and how can they spend money that has been collected by the brigade for purposes not covered by the CFA? and
• Would the constitutional right of free political speech extend to allow members to resist a direction not to wear CFA issued PPE to a rally where membership of the CFA is in fact the very issue?

On this blog I’m happy to say that they are relevant legal issues that could arise should anyone seek to take disciplinary or legal action against a brigade, the brigade executive or a member who attends the rally.  I am not prepared to give advice on what the answer actually is or will be; these questions need to be directed to the organisers of the rally.

A member of the NSW SES asks:

Is the NSW SES able to refuse to provide assistance to storm affected properties, where the owner/resident has previously had the NSW SES provide assistance multiple times, but since then has not taken any action to to mitigate future issues?  (This question is not meant to look at life threatening scenarios.)

I’ll provide you with a hypothetical scenario as it provides more context…

A home owner calls the NSW SES for the first time due to storm damage in their yard. The storm damage appears to be caused by lack of owner maintenance and something from council. The location of buildings etc on the property are a major contributing factor to the problem. The team attends, places some property protection, does the maintenance the owner should have done, and tells the owner to fix the cause of the problem or at minimum perform maintenance.  Some of the problem is due to an issue on council property, Council proceeds to fix their side of the problem. In a period of under 2 years, the home owner calls the NSW SES several times. Same action is taken and advice is given by SES team as on previous calls. The home owner gets to a point where they are calling “because it might happen”.

The State Emergency Service Act 1989 (NSW) s 8 says:

(1) The State Emergency Service has the following functions:

(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…

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

There are two issues to note:

• There is no definition of what is a ‘storm’ as opposed to ‘some rain’ or ‘a windy day’ (see The NSW SES is the combat agency for floods and storms – but what is a flood? or a storm? (October 6, 2015);
• Sections 1(aa) and 1(b) do not refer to an ‘emergency’ response. Although the agency is the State Emergency Service there is very little reference to ‘emergency’ in the Act.  Part 5 (ss 18A-24) deals with ‘Emergencies and Emergency Powers’ and applies during emergencies caused by floods (s 19) but what is an ‘emergency’ is not defined.    The State Emergency and Rescue Management Act 1989 (NSW) defines an ‘emergency’ 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 co-ordinated response.

If that is the relevant definition for the State Emergency Service Act one can see that organising a massive response where whole communities have been affected is an emergency, but responding to damage to a single house is not.    But as I’ve noted, ss 1(aa) and (b) don’t refer to an emergency.  In the scenario I’m given the householder’s property is at risk of damage arising from a storm.   One could say that the risk was also due to the homeowners lack of care but that would be true for every job – and if one took that to its logical extreme, the SES would only turn out to overwhelming events where no amount of preparation and enhanced building standards would have prevented the damage.  That could be a reasonable approach but it would stop the SES from responding to anything.

I ask myself could the SES impose a limit and say, for example, everyone is entitled to two calls for the same problem but no more?  That would be politically difficult and a person denied service would no doubt go to ‘A Current Affair’ or the Daily Telegraph with their story of woe particularly if they couldn’t afford to have the work done, or they were a tenant and the landlord refused to do the work, or they had arranged for it to be done but were still waiting for the tradie to find the time etc.   But if they want to law what would happen?

They could seek a remedy under administrative law in effect requiring the SES to perform its functions.  An agency like the SES has a wide discretion on how it gives effect to its Act and performs the functions required of it. If the SES had a clear policy that ‘we do x, but we don’t do y’ and if that policy was a reasonable approach then failure to do ‘y’ would be ok. For example, to take s 8(1)(aa) to its logical extreme, the SES should be out making sure everyone’s home is StormSafe but it doesn’t. A person could say that ‘given every time it rains my home floods the SES should come and do the repairs and that would be consistent with s 8(1)(aa) as it would be protecting ‘property from destruction or damage, arising from … storms’.   It may be consistent with s 8(1)(aa) but it doesn’t mean the SES has to do it.  The SES has to consider its resources and all the calls on those resources and make decisions on what it does and doesn’t do.   A fire brigade isn’t going to turn out because last time a person used the toaster the fire alarm went off and it might happen again; equally if it’s the rule being applied to everyone, the SES isn’t going to turn out because last time it rained a homeowner got wet so not responding “because it might happen” is fair enough if it’s consistently applied.  So the SES does have some policy, even if its unstated, on what it does and does not do. The SES responds to water coming in the home, but does not actually make homes StormSafe.

It’s probably the case that if the SES also had a clear policy on the number of responses they would make in non-life threatening situations that could also be defended but it would have to be expressly stated and made clear to a person who had made the relevant number of calls.   But if that was a policy position a person might find little sympathy if they sought some sort of order to require the SES to keep turning out.    As it is I’m not aware of such a policy and so it’s not, in my view, open to a unit to decide that a person is simply relying on the SES when they could take action to help themselves.

SES as a public good

As an aside, I do think it is legitimate to question why the state does provide an emergency service response to a single house impacted by a storm. If a fire breaks out in a home the community has an interest in making sure it’s extinguished to stop it spreading, but if water enters a roof why is it anyone’s problem but the homeowner?  If the homeowner has insurance, there is no doubt that the insurance company would respond if the SES did not as they want to minimise the loss and therefore the cost.  And if the homeowner is not insured, why isn’t that their problem?    That insurance companies have the most to gain no doubt in part explains why they pay 73.7% of the costs of providing the SES (State Emergency Service Act 1989 (NSW) s 24F; the State pays 14.6% and local councils 11.7%).   If the SES refused to turn out to events impacting upon a single home so that insurance companies had to set up their own response service they would, not doubt, protest the imposition of the SES Contributions.

So the SES is the insurance companies’ response agency but to avoid the old fashioned disputes that occurred when insurers provided fire brigades and brigades would only fight first where the property was insured, the SES is provided as a public good. That is, it is provided to everyone and it’s a public good because no one insurer or homeowner could afford to provide the state wide, and urgent response, that the SES can provide.   By requiring everyone to contribute to the cost (via taxes and premiums) everyone gets a benefit they could not afford if they had to pay for it on a ‘user pays’ basis.   If I understand my undergraduate economics studies, I think that is a classic example of a public good.

Conclusion

The question asked was:

Is the NSW SES able to refuse to provide assistance to storm affected properties, where the owner/resident has previously had the NSW SES provide assistance multiple times, but since then has not taken any action to to mitigate future issues?

On my current understanding the answer is ‘no’.  It could be ‘yes’ but only if the State decided to adopt and implement a policy consistently across the State.  It would certainly not be open at unit level to make that decision about a particular home owner, on what might be called an ‘ad hoc’ or case-by-case basis.

Today I’m asked:

To what extent can a forceful entry be conducted to save a life that either doesn’t want to leave or doesn’t want to live. This would also include forcefully handling the victim.

From a volunteer’s perspective a police officer would not be available to negotiate as time will not be permitting.  An example as attached:

https://m.facebook.com/story.php?story_fbid=1593978244249229&id=1571144583199262

I hoping that when a life is jeopardy. Logical steps would be taken. Although law isn’t always logical.

The issue in the video has nothing to do with the law – a matter I shall return to.

If what we are concerned about is liabilty for property damage, that is whether it’s ok to damage the car or home to get access to a person in need, the answer is clear- see

• Clearing up storm damage and the role of the property owner in NSW (August 18, 2014)
• Paramedics forcing entry to premises (March 25, 2014)

As for ‘forcefully handling the victim’, it is the law that any touching of another person, without either their consent or some other lawful justification or excuse is a battery, which is both a crime and a  tort (that is a civil wrong for which the person can recover damages without the need to prove actual injury).  So can you use force to pull someone from danger? Yes, because there is a lawful justification or excuse.

In Collins v Wilcock [1984] 3 All ER 374, Lord Justice Goff (the title ‘Lord Justice’ is a dead giveaway that this is an English case) said:

The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery… The effect is that everybody is protected not only against physical injury but against any form of physical molestation….But so widely drawn a principle must inevitably be subject to exceptions… to allow for the exigencies of everyday life [there is] … a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.

What is acceptable in the ordinary conduct of daily life will depend on the circumstances and the attitude of the court (should it ever get that far).  One example given is touching a person in order to get their attention.  Another example may be grabbing someone to stop them walking into the path of a bus or off a cliff, or to pull them from a burning building or car.

There is also an exception for actions done out of necessity.   That has been talked about often enough in the context of this blog with respect to providing health care where a person cannot consent.    Again it was Lord Goff who said (in In Re F [1990] 2 AC 1):

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

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

Necessity is a broad principle however and can form a defence to any tort or crime where the actions taken, although legally wrong, are intended to prevent a worse outcome and the actions are not disproportionate to the harm to be avoided.

 ‘An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained’.”  (Sir James Fitzjames Stephen’s Digest of the Criminal Law (1st. ed., ch. 3, art. 43; 9th ed., ch. 2, art. 11) cited in R v Loughnan [1981] VicRp 43).

So assume you grab a person out of harms way in circumstances that are technically a battery but your aim is to avoid worse consequences (ie their death) and you took no more action and applied no more force than was necessary to achieve that objective, then you may be able to rely on the defence of necessity.

But to return to Lord Goff and In Re F, necessity can’t justify action contrary to the known rational wishes of the informed person.  Rational does not mean you have to agree with them.  A person, in my view, could be quite rational if they say they would rather stay in their home and try to preserve the lives of their pets rather than evacuate and leave them to certain death. You may not agree but that doesn’t make the decision irrational.

What it’s going to come down to is the urgency of the situation.  Pulling someone from a burning building because it’s necessary to not only save their life but because the rescuer also doesn’t have time to debate the issue is one thing.  Pulling someone from a building that is likely to flood in the next few hours when they have quite rationally explained their desire to stay and given their reasons for the decision is another.

So let’s return to the video that my correspondent gave a link to.  The issue here is not the law. I would infer that the people in that video couldn’t have dragged the driver out of the car even if they’d wanted to but I’m sure if they had there would have been no legal wrong. The issue here is much more basic and it’s about the first rule of rescue, don’t put yourself in danger.   A number of those rescuers were washed away and we’re not told if they lived or died.  But it would have been quite reasonable to simply leave her, if she didn’t want to get out there’s no point killing yourself trying to force her.

Emergency services have various statutory defences that would protect their members but I haven’t discussed those as the video that was the stimulus for this question was about citizen rescuers.  But even so the cost in resources is, I suggest, a major reason why the Australian emergency (and in particular fire) services have resisted forced evacuations.  They all have various legislative powers to require people to evacuate but why would you want to divert resources and expose emergency service workers to heightened risk forcing people to leave who don’t want to?   For further discussion, see:

• Legality of forced evacuations during NSW Bushfires (January 10, 2014)
• Mandatory evacuations (December 26, 2015)
• Compulsory evacuations in Melbourne (February 8, 2016).

Conclusion

The question I was asked was ‘to what extent can a forceful entry be conducted to save a life that either doesn’t want to leave or doesn’t want to live. This would also include forcefully handling the victim?’   The answer has to depend on the circumstances.  There is a difference between pulling a person from a building that may in due course, be in the path of the oncoming bushfire or flood, particularly when they have a clear and articulated desire to stay;  and pulling someone from an apartment where the fire is well engaged.

For them the doctrine of necessity would be expected to provide a defence if in the circumstances both potential rescuers and the person needing to be rescued face an imminent peril (in the case of the video, being washed away by flood water) and the actions taken were reasonable and proportionate to avoid that peril and the harm done (an unlawful touching) was not disproportionate to the harm avoided (in this case death).

A correspondent asks for advice on the possible implications

… from a member of a volunteer fire service turning out under the influence of alcohol to an emergency call.  The scenario is that they did not drive to the station or drive the emergency vehicle.  I see responding to an emergency as a workplace even though a volunteer is not paid.  Besides the straight forward implications such as putting colleagues at risk.  Also What could be the implications for the officer in charge of the truck? Any advice would be greatly appreciated.

Being ‘under the influence of alcohol’ or having in the blood the prescribed concentration of alcohol are offences for drivers, but we’re asked to assume that this volunteer neither drove to the station nor did they drive the appliance so the relevant road rules are not the issue.

Even so if a person is ‘under the influence’ of alcohol, that is affected by alcohol they should not turn out.  The first implication is that they can be subject to the disciplinary proceedings of their service, provided the service has a policy on the issue.    So, for example, NSW Fire and Rescue’s Alcohol and other Drugs Policy says, at paragraph 3(1) ‘A firefighter must not: (a) come on duty while under the influence of alcohol or a drug…’ (Note my correspondent does not say he’s from NSWFR, I’ve just used their policy as an example).

It is well established that for the purpose of the Work Health and Safety legislation that has been adopted across all jurisdictions other than WA and Victoria, the term ‘worker’ includes a volunteer (see for example, Work Health and Safety Act 2011 (NSW) s 7).    As a worker, a volunteer must (s 28):

(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.

That imposes obligations, enforced by the criminal law, to follow policy statements such as the relevant service’s alcohol policy and also not to undertake work that can impose a risk to others if the worker/volunteer is aware that they are affected by alcohol.

As for the ‘officer in charge of the truck’ I assume we’re talking about the crew leader/officer in charge.  Under WHS laws and no doubt service policy, people in the chain of command have obligations to both ensure that the policies are applied and also obligations to exercise their duties to reduce risks. It follows that a senior officer who failed to discharge his or her duties could also be subject to disciplinary action and, possible work health and safety prosecution (though to be fair, that is unlikely).

Conclusion

Not only a senior officer, but any member, should tell a member who is under the influence that he or she is not to turn out.