M. Eburn

‘Court dismisses landholders’ appeal over 2003 Canberra bushfire’

In Fire, litigation, Negligence on October 31, 2014 at 11:09 am

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

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

 

 

 

 

 

Non-operational staff travelling in marked emergency service vehicles (NSW)

In Flood, Negligence, OHS, Rescue, SES, Storm on October 29, 2014 at 1:00 pm

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

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

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

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

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

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

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

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

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

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

As a general principle was can say there is no duty to rescue and in this regard the state authorities are in no different position to the general public (Stuart v Kirkland-Veenstra [2009] HCA 15) but that statement is misleading in its simplicity.  As Crennan and Kieffel JJ said (at [129]):

In principle a public authority exercising statutory powers should not be regarded by the common law any differently from a citizen. It should not be considered to have an obligation to act. But the position of a public authority is not the same as that of a citizen and the rule of equality is not regarded as wholly applicable. It has public functions and it has statutory powers which the citizen does not. Some powers might be effective to avert or minimise a risk of harm to particular persons or their property, but the statute might not oblige their use. The relevant concern of the common law is whether a public authority might nevertheless be considered to be under a duty of care which obliges it to exercise its powers in a particular way.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The next part of the question is:

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

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

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

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

(1) A matter or thing done by:

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

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

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

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

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

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

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

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

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

Conclusion

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

What are the possible outcomes?

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

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

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

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

“ESA commissioner criticised over Sydney Building fire”

In Fire, Legislation and plans, OHS on October 28, 2014 at 11:05 am

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

The paper says:

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

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

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

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

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

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

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