M. Eburn

Are Australian Federal Police Protective Services officers Emergency Workers?

In Driving and Road Rules on April 15, 2014 at 2:43 pm

This question comes from a protective service officer who says:

As far as I am aware, protective service officers of the AFP cannot claim exemption from the road rules using 305 or 306, even though they may attend emergency situations or needed to attend urgently.

My question is can protective services officers use lights and sirens to attend a job whilst abiding by all road rules? That is; keeping to speed limit, not running reds, just utilising the lights and sirens as a means to warn other road users out of the way? Would this be legislated or an organisation directive to do or not to do so?

Also what is the legality for protective service officer vehicles and red and blue lights? Looking at the NSW vehicle standards it says police, NSW Fire and Rescue, ambulance, SES, RMS emergency vehicles can have fitted red and blue lights. Nothing about Australian federal police vehicles or specifically vehicles operated by protective service officers. It does in the section regarding sirens state that Australian federal police vehicles may be fitted with a siren, as well as mentioning police, ambos etc.

The AFP work nationwide but given my correspondent has referred to the NSW Vehicle Standards, I’ll answer using NSW law.

The Australian Federal Police force is established by the Australian Federal Police Act 1979 (Cth).  The Australian Federal Police consists of the Commissioner, the Deputy Commissioner, AFP employees, special members and special protective service officers (s 6).  A special protective service officer is ‘a person appointed under section 40EC’ (s 4).   Section 40EC says:

The Commissioner may … appoint a person as a special protective service officer of the Australian Federal Police to assist in performing the protective service functions of the Australian Federal Police.

The ‘protective service functions of the Australian Federal Police’ are defined by the Minister (s 8A).  A special protective service officer is an AFP appointee which is a generic term intended to mean all the staff of the AFP so sworn police officers, protective service officers and special members.   A member of the Australian Federal Police is an AFP employee who has been declared to be a member of the AFP (s 4).  The implications of all that is that the AFP consists of special protective service officers, special members and other AFP employees.  Only those AFP employees who have been declared to be ‘members of the AFP’ are police officers.   What I infer is that a ‘special protective service officer’, although an AFP appointee is not a member of the AFP ie he or she is not a police officer.

Now to the road rules; remember that rules provide that the driver of an emergency vehicle is exempt from the road rules (rule 306) as are drivers of police vehicles (rule 305).   As my correspondent has noted, rule 306 applies to vehicles driven by an emergency worker in the course of his or her duties as an emergency worker – an emergency worker is

(a) a member of the Ambulance Service or the ambulance service of another State or Territory, in the course of providing transport in an emergency associated with the provision of aid to sick or injured persons, or

(b) a member of a fire or rescue service operated by a NSW Government agency, a member of the State Emergency Service or a member of a fire brigade (however referred to) or rescue service of the Commonwealth or another State or territory, providing transport in the course of an emergency, or

(b1) a member of Airservices Australia providing transport in the course of a fire or rescue emergency, or

(c) a person (or a person belong to a class of persons) approved by the Authority.  (Rule 4 and Dictionary).

Clearly the AFP does not fall within those definitions.

Rule 305 says:

(1) A provision of these Rules does not apply to the driver of a police vehicle if:

(a) in the circumstances:

(i) the driver is taking reasonable care, and

(ii) it is reasonable that the provision should not apply, and

(b) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm.

Police may benefit from this rule even if they are not displaying a red/blue light or sounding a siren and that is reasonable in the circumstances (Rule 305(2)).

A police vehicle is ‘any vehicle driven by a person who is: (a) a police officer, and (b) driving the vehicle in the course of his or her duties as a police officer’.  A police officer is ‘a member of the NSW Police Force who is a police officer within the meaning of the Police Act 1990’ (Rule 4 and Dictionary).    One would assume that a member of the AFP is not a member of the NSW police however, the Police Act 1990 (NSW) provides that members of the AFP may be appointed as recognised law enforcement officers.  This may be done either individually or as a class.  An audit report on police at Australia’s airports says ‘AFP officers in NSW have been sworn in as Recognised Law Enforcement Officers (RLEOs) under NSW legislation’ (ANAO Audit Report No.23 2013–14, Policing at Australian International Airports, p 44, [2.12]).

A recognised law enforcement officer ‘may exercise all the functions (including powers, immunities, liabilities and responsibilities) that a police officer of the rank of constable duly appointed under this Act has and may exercise under any law of the State (including the common law and this Act)’ (Police Act 1990 (NSW) s 207E(1)).  Further ‘a provision of any Act or statutory instrument applies to a recognised law enforcement officer in the same way as it applies to a police officer in his or her capacity as a police officer’ (s 207E(3)).  It follows that even though AFP officers are not members of the NSW Police, the road rules will apply to them as if he or she was a police officer; so yes police officers with the AFP can rely on rule 305.

But Protective Service Officers are not police officers – so that provision won’t help.   It appears therefore that ‘protective service officers of the AFP cannot claim exemption from the road rules using 305 or 306, even though they may attend emergency situations or needed to attend urgently’ but there is one more argument.  A special protective service officer has:

(a)  any powers and duties that are expressly conferred or imposed on special protective service officers under a provision of this Act or any other Act; and (b)  such of the powers and duties conferred or imposed on protective service officers as are specified in his or her instrument of appointment ( Australian Federal Police Act 1979 (Cth) s 40ED).

Whilst I very much doubt that the Commissioner has given special protective service officers the power to drive without regard to NSW road rules in the instrument of appointment, he or she may have been given police powers that are sufficiently generic such as ‘all the powers and duties of a police officer’ or the like.

Without going into the details of what might be, the Australian Constitution provides that if there is an inconsistency between a State law and a Commonwealth law, the Commonwealth law prevails (Australian Constitution s 109).   If the Commissioner has given some relevant power in the instrument of appointment, that could override any inconsistent state law.  I am unable to verify if that is the case but I do have to say I suspect that it is unlikely.  So AFP Special protective service officers can benefit from s 305 if the Commissioner of NSW Police has appointed them as recognised law enforcement officers or there is a valid Commonwealth law, or power in his or her instrument of appointment that allows them to do so.

The next question is ‘can protective services officers use lights and sirens to attend a job whilst abiding by all road rules?’  The answer has to be ‘no’.  The point of lights and siren’s is to warn other drivers and there are obligations upon other driver’s to give way to emergency service and police vehicles (Rule 79).   Further it is a defence to stop, where it would otherwise be unlawful to stop, to comply with another rule (rule 165) so a driver who pulls over and stops to let a police vehicle with lights and sirens on pass, commits no offence.   In short if you have lights/siren on other vehicles are required to make way for you.  It would lead to confusion if, for example, you stopped at a red light with lights/siren on, other vehicles stopped to give way, but you stayed stopped at the intersection.  Driving with lights and sirens on does nto give you permission to drive recklessly or dangerously but it would increase the danger if people made way for you but you then did not act on that courtesy as you can’t break the road rules.

If the vehicle is not a police or emergency services vehicle, (which it’s not if it’s not being driven by an emergency worker or police officer, even if it’s a marked police care) then it is an offence to ‘use a device to make a sound like the sound of a siren’ (Rule 224-1), and a siren makes a sound like a siren!

As for fitting lights and sirens to AFP vehicles; the Road Transport (Vehicle Registration) Regulation 2007 (NSW) says that a vehicle must not ‘be fitted with a device that can make a sound like the sound of a siren’ unless, amongst others, it is a police vehicle or an Australian Protective Service vehicle’ (Schedule 2, clause 33).   That is the only mention of Australian Protective Services in the Regulation.

There remains the general catch all- an emergency worker includes ‘a person (or a person belong to a class of persons) approved by the Authority’ as an emergency worker (Road Rules 2008 (NSW) r 4 and Dictionary, definition of Emergency worker); a vehicle may be fitted with flashing blue/red lights if they are ‘approved by the Authority’ (Road Transport (Vehicle Registration) Regulation 2007 (NSW) Schedule 2, clause 124).

Conclusions

Let me return to the questions:

As far as I am aware, protective service officers of the AFP cannot claim exemption from the road rules using 305 or 306, even though they may attend emergency situations or needed to attend urgently.

They could rely on clause 305 if they have been appointed as a ‘recognised law enforcement officer’ by the Commissioner of the NSW Police.  This appears unlikely and is more relevant for members of the AFP (as opposed to AFP appointees).    They could rely on clause 306 if they have been approved as ‘emergency workers’ by the NSW Road and Maritime Services.

They may be exempt the NSW Road Rules if there is a valid Commonwealth law or there is a power in their instrument of appointment that is inconsistent with the NSW rule. That too would seem unlikely.

My question is can protective services officers use lights and sirens to attend a job whilst abiding by all road rules? That is; keeping to speed limit, not running reds, just utilising the lights and sirens as a means to warn other road users out of the way? Would this be legislated or an organisation directive to do or not to do so? 

No; either your authorised to use the equipment or you are not.  This would be dangerous and illegal to operate red and blue lights or a siren on a vehicle that is not an emergency vehicle or a police vehicle and they only have that character when they are driven by an emergency worker or a police officer in the course of his or her duties in an emergency.  Subject to the discussion above special protective service officers are neither unless the appropriate appointments have been made, or authorities issues.

Also what is the legality for protective service officer vehicles and red and blue lights? Looking at the NSW vehicle standards it says police, NSW Fire and Rescue, ambulance, SES, RMS emergency vehicles can have fitted red and blue lights. Nothing about Australian federal police vehicles or specifically vehicles operated by protective service officers. It does in the section regarding sirens state that Australian federal police vehicles may be fitted with a siren, as well as mentioning police, ambos etc.

A police vehicle includes an AFP vehicle if AFP members have been appointed as recognised law enforcement officers.  It does appear that Protective Service vehicles can be fitted with a siren which is odd if there is no power to use it; but inconsistency in law is not unknown.  I would expect that relevant authorities have been granted by the RMS but to check that, this question should be directed to the AFP’s legal office.

Working with old ambulances – WA mines

In Ambulance, OHS on April 11, 2014 at 3:26 pm

A question from West Australia:

I have been working in the mines for the last 2 years. Have recently changed sites and now on a site with quite an old ambulance. This troop carrier still has the long bench seat (side facing seats) with lap type seat belts. In a recent team meeting the 4 medics were asked by our supervisor on feedback on our equipment. The ambulance received the greatest amount of comment.

My question is what is the legality of side facing seats in ambulances? A couple of the other medics and I have spoken after this meeting and we have all heard that side facing seats are now illegal and against Australian Standards. I have done a bit of a web search and see a lot of talk about new proposed laws for years but nothing from a reliable source. I can also assume the rumor mill starts something and the facts get changed. If there are new laws is that only apply to new vehicles. How would this also apply to WHS legislation if the changes to remove side-facing seats in new vehicles was as a result of increased injury.

Surprisingly the vehicle standards say nothing about the direction of seats (see Road Traffic (Vehicle Standards) Regulations 2002 (WA) and Road Traffic (Vehicle Standards) Rules 2002 (WA)) – though it seems obvious that the driver’s seat should face the front.   The only relevant rule appears to be the rule which says “A seat for a driver or passenger in a vehicle must be securely attached to the vehicle” (Road Traffic (Vehicle Standards) Rules 2002 (WA) rule 26).

The Road Traffic Code 2000 (WA) (that incorporates the national road rules) has some more to say. Regulation 234 says that a child under 6 months must be in a ‘rearward facing child restraint’.  A child over 6 months but under 4 may be in a forward or rearward facing child restraint and, necessarily, not in one that is on a side facing seat.  There are no other references as to the direction of car seating, so I can see nothing to suggest that side facing seats are illegal.  If the design rules do change, the changes apply to vehicles registered, or equipment fitted, after the changes (Road Traffic (Vehicle Standards) Rules 2002 (WA) rules 13 and 14).

The Occupational Safety and Health Act 1984 (WA) says ‘An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees ) are not exposed to hazards’ (s 19).  Despite its mandatory tone it’s not possible to ensure that there are no hazards, so the obligation is to ensure a hazard free environment ‘so far as is practicable’.  What is practicable means

 reasonably practicable having regard, where the context permits, to

(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring; and

(b) the state of knowledge about —

(i) the injury or harm to health referred to in paragraph (a); and

(ii) the risk of that injury or harm to health occurring; and

(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health; and

(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii);

In Kirk v Industrial Relations Commission & WorkCover Authority of New South Wales [2010] HCA 1 the High Court considered section 15 of the Occupational Health and Safety Act 1983 (NSW) (now repealed). That section said ‘Every employer shall ensure the health, safety and welfare at work of all the employer’s employees’.   The Court (French CJ, Gummow, Hayne, Crennan, Kiefel And Bell JJ) said

‘it is necessary for an employer to identify risks present in the workplace and to address them, in order to fulfil the obligations imposed by ss 15 and 16. It is also necessary for the prosecutor to identify the measures which should have been taken. If a risk was or is present, the question is – what action on the part of the employer was or is required to address it?

In other words, an offence is not established just because there is a risk or just because an injury occurs, the prosecution must also prove there was something that could be practically done to ameliorate the risk.

So are side facing seats illegal?  They are not illegal under the vehicle standards rules.  Do they breach OHS laws – no but they might if a risk assessment concluded in all the circumstances, taking into account where and how the ambulance is to be used, they posed a greater risk to the occupants than other types of seats and ‘the availability, suitability, and cost’ of alternatives. Clearly there are alternatives in the form of newer, better designed ambulances or retrofitting the interior of the ‘old ambulance’.  Whether those costs are warranted depends on the assessment of ‘the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring’.  A very low risk of a minor injury may not warrant replacing the ambulance fleet, a very high risk of a fatal injury probably does.

NSW RFS village firefighting

In Fire, OHS on April 9, 2014 at 1:57 pm

I am a Senior Deputy Captain with the NSW RFS. In the RFS in order to go to callouts a member must successfully complete the bush firefighter (BF) course. As the name suggests this course teaches bush and grass fire fighting skills. There is a separate course which teaches village firefighting skills (VF) which is often done until about a year after BF and teaches skills relating to village firefighting incidents such as motor vehicle accidents, structure fires and car fires.

As I mentioned within the RFS members are able to start attending incidents once they have completed BF, regardless of what the incident is. This means that it is not unusual, particularly within village type brigades such as mine to have crew at village type incidents who have not completed the VF training course.  The relevant NSW RFS service standard  (6.1.2) does specify that the minimum qualification required to “Fight a village type fire (structure/vehicle)” is village firefighter but it is normal practice (and district staff are certainly aware that it happens) within all RFS areas I know of for members to attend village type incidents even if they are not village qualified. If only village qualified members were sent then there are cases where brigades may not be able to send a crew.

This then leads to a few questions:

  1. As an officer should I be stopping non VF qualified members from attending village type incidents?
  2. Is there any liability on myself, a non VF qualified member or the brigade either from a WHS perspective or more generally if a non VF qualified member gets injured/killed at a village type fire?
  3. Is there any liability if a member of the public or their property is injured / damaged as a result of the actions of a non VF qualified member at a village type incident?

The answers to these questions will, as if often the case, turn on the risk assessment.  In the normal way with legal analysis we can start with the ‘rules’ and then apply them to the facts.  The first relevant rules is Service Standard 6.1.2.  For mainstream fire fighting roles, the Service Standard says, in Appendix 1, that in order to:

  •          ‘Fight a village type fire (structure/vehicle)’ one needs to be qualified as a Village Firefighter (VF).
  •          Lead a crew ‘fighting a village type fire’ you need a qualification as ‘Crew Leader Village (CLV)’.
  •          Fight a village fire using an interior attack, one needs qualifications as a Breathing Apparatus Operator (BAO).

These ‘requirements do not apply in rural remote brigades’ that is ‘farm based brigades’.  I infer that my correspondent is not from a ‘rural remote brigade’.   Further:

Using a risk management approach, a District Manager may waive any of the requirements for volunteer qualifications in their area of jurisdiction, provided they are working to achieve compliance within a reasonable time and are satisfied that current operations can be conducted safely.  (Service Standard 6.12, [2.4]).

I will assume that no such waiver has been made.

Next we need to consider the Work Health and Safety Act 2011 (NSW) which says that person conducting a business or undertaking (the PCBU, in this case the Rural Fire Service) has to ‘ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person …’ (s 19).  As is now well known, ‘workers’ includes volunteers (s 7).   What reasonably practicable means is:

… that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about:

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. (s 18).

Although not a binding precedent, a Scottish Sheriff (the equivalent of our Coroner) in a report on the Death of Alison Hume (see ‘Legal confusion leads to unnecessary death’ 8 December 2011) was critical of the Strathclyde Fire and Rescue service for rigidly adhering to a policy directive without stopping to think what was the actual risk and importantly how severe was the risk compared to the objective to be achieved.   There is always a risk to fire fighters but that doesn’t mean we don’t let fire fighters fight fires, the benefit of fighting fires warrants some risk but steps must be taken to minimise but not eliminate all risks.

Finally let’s remember the rule, referred to often in this blog, about the fire brigades’ duty of care.  In Capital and Counties v Hampshire Council [1997] QB 2004 the UK court ruled that fire brigades are not established for individual benefit but for community benefit and they do not owe a duty of care to individuals.  In that case the court (Lord Justice Stuart-Smith; Lord Justice Potter and, the appropriately named, Lord Justice Judge) said

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

If they do owe a duty it is a duty not to make the situation worse, not necessarily to make it better (see any number of posts on this blog at http://emergencylaw.wordpress.com/?s=capital+and+counties).

If they are the relevant rules let us try to apply them to the facts as given.   The situation is that there is a fire in the ‘village’ and the RFS have been called.  The members are only qualified to BF.  (I would expect that there may be some qualified to VF but that’s not in the facts as given so I will assume that in fact none are qualified to VF).   Presumably there is a neighbouring brigade that may be able to come, and depending on where the village is NSW Fire and Rescue may also be dispatched but I will assume that their response times will be sufficiently long that waiting for them is not a real option.

Remember that fire brigades are established for the community benefit and what the community requires is that the village is not razed; the loss of a single building will be bad for the building owner and may be quite devastating for the village if it is a key piece of infrastructure (the pub or the shop) but losing that will not be as bad as losing the entire village or shopping strip.   The RFS has received the call and it is the function of the Rural Fire Service to provide rural fire services which includes protecting people, property and infrastructure from damage by fire (Rural Fires Act 1997 (NSW) s 9).  As the local brigade you have two options: go or don’t go.

If you don’t go, the risk to the community is self evident.   There won’t necessarily be any ‘liablity’ if you don’t go, there is no duty of care to individuals, it is not clear but the balance of authority would say that the obligations set out in s 9 do not give a person a right to sue if you don’t go (Bennett and Wood Ltd v Orange City Council; Board of Fire Commissioners (Third Party) (1967) 67 SR(NSW) 426).  If there is liability it would fall on the RFS, not individual members as it is the RFS (if anyone) that is required to respond, not individuals – volunteers can always not volunteer.   But as noted, the risk is self evident and no doubt volunteer fire fighters volunteer to support and protect their community.

The alternative is to go.  What’s the risk, so far nothing more than the risk of responding to any fire. The members get in the appliance and they go and arrive at the fire scene.  Now the options are more complex: what do you do when you get there?    Now is the time for risk assessment – if your there for the community benefit the objective has to be to contain the fire.  An urban brigade, or an RFS brigade, staffed with VF and BAO qualified fire fighters may see their measure of success as containing the fire to the room of origin (see Productivity Commission Report on Government Services 2014 (Commonwealth of Australia, 2014) Volume D, Chapter 9, page 9.33) but that is not a reasonable expectation here.  Here containing the fire to the building of origin is more realistic.

I’m not a fire fighter but I can imagine there are a number of strategies that could be deployed which involve fighting the fire from the street.  There is no need to actually enter the building.  It could be that fire fighting resources are in fact deployed to simply wet down neighbouring buildings and deal with spot fires and allow the burning building to burn.

Again risk assessment is the key and to again quote Mason CJ from Wyong Shire v Shirt (1980) 146 CLR 40 (at 48), an assessment of what is reasonable

… 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.

So the officer in charge has to consider the risk to firefighters, the risk to the community, what can be done to mitigate those risks and the like.

Let me return to the questions:

  1.  As an officer should I be stopping non VF qualified members from attending village type incidents?

If members are allowed to attend with BF then I don’t see why.  That answer may be different if there is a specific instruction from the RFS to that effect, but you tell me that members are allowed to attend with BF and the service standard says they’re not allowed  to ‘fight’ a village type fire, but that doesn’t mean that they are not allowed to go.   And then we have a question of what does ‘fight’ a village type fire mean?  We can reasonably infer that they should not be going into the burning building – regardless of definition of ‘fight’ that’s just too risky – even if there are people in the building!

Within the RFS you must know what is taught in the VF course and what the extra skills are and the OIC/IC can determine what skills are required. If turning the water onto nearby homes is the best option that, I would think, is quite consistent with a BF skill.

  1.  Is there any liability on myself, a non VF qualified member or the brigade either from a WHS perspective or more generally if a non VF qualified member gets injured/killed at a village type fire?

There is unlikely to be personal liability.  The RFS would be liable to pay compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) but that’s a no fault scheme.  Under common law the RFS would also be liable for the negligence of its volunteers  and one would argue they were negligent in not sufficiently training you on what to do – particularly given ‘district staff are certainly aware that it happens’.

By virtue of the Work Health and Safety Act 2011 (NSW) s 34, a volunteer’s duties are limited to those set out in s 28 and 29.  Section 28 says:

While at work, a worker must:

(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.

(Section 29 is similar and relates to the duty to protect others at the workplace and will not be discussed here).

There may be a breach of s 28(b) if you, as the IC, directed a non-qualified fire fighter to enter the building to rescue the cat.   It may be argued that as the captain you did not ‘comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the[PCBU]’ but as we’ve noted there does not appear to be a specific instruction that BF firefighters can’t go, only that they can’t ‘fight’ a village type fire.   And an instruction not to go at all may not be a ‘reasonable instruction’ given the risk to the village and that the Brigade may be able to do something to contain the fire even if they cannot save the building that is on fire.

So short of blatant stupidity, or malicious intent, there will not be personal liability.  The RFS may be liable but as in all cases it would depend on the circumstances.   What killed or injured the fire fighter?  What was the risk assessment?  Were the factors listed in section 18 (above) considered?  When considering the risk was concern also given to the purpose to be achieved ie the need to contain the fire?

(I do know that there are specific duties on ‘officers’ under the WHS Act s 27; but a Senior Deputy Captain may be an RFS Officer but he or she is not an officer as that term is defined in the WHS Act s 247 and see also s 34 which exempts volunteers from the ‘officer’ provisions).

  1.       Is there any liability if a member of the public or their property is injured damaged as a result of the actions of a non VF qualified member at a village type incident?

No.

Let me explain in more detail.   The duty of the RFS is only not to make the situation worse.  The property is on fire, what’s the fire fighter going to do to make the situation worse?    I guess they could do what one of the defendants did in Capital and Counties v Hampshire Council [1997] QB 2004 which was turn off the sprinklers before the seat of the fire had been located with the consequence that the building was lost and would have been better protected if the fire fighters had not shown up at all.

But we know that an Act done in good faith does not attract liability (Rural Fires Act 1997 (NSW) s 128) so provided the fire fighter is doing his her honest best there will be no liability (see also my post on Myer Stores Ltd v State Fire Commission [2012] TASSC 54 (24 August 2012)).

What of the claim that they didn’t do enough?  Well as noted the common law would say that the brigade’s duty is to the community not to the owner of the property; if the property was going to burn without them brigade in attendance then it doesn’t matter if it burns when they are there if they are doing things like protecting the neighbouring properties.    Finding a duty to protect the property would be inconsistent with the RFS legislation in particular s 25 which says:

(1) An officer of a rural fire brigade or group of rural fire brigades may, if persons are, or property is, endangered or likely to be endangered by a fire … (b) destroy, pull down, shore up or remove, or cause to be destroyed, pulled down, shored up or removed, any buildings or structures or parts of buildings or structures on any land,

If the only way to contain the fire was to drive a bulldozer over it, that could be done to protect the village and provided it was done in good faith would not expose the RFS to liability.  ‘A man may justify pulling down a house on fire for the safety of the neighbouring houses’ (Malverer v Spinke (1538) 73 ER 79, 81 (and yes, the reference to 1538 is correct)).  If you have the power to destroy the building you can hardly be liable for failing to save it (Board of Fire Commissioners v Rowland [1960] SR(NSW) 322).

The property owner cannot sue the RFS for not having VF qualified fire fighters.  The RFS has the resources it has, both in money terms and in terms of volunteers and cannot be sued for not responding with that which it does not have (Civil Liability Act 2002 (NSW) s 42).

‘The moral of the story is … : make sure you have insurance cover for losses occasioned by fire on your premises’ (Stannard v Gore (2012) EWCA Civ 1248, [50] (Ward LJ)).

Conclusion

The conclusion has to be, subject to any specific direction to the contrary, that you turn out and do the best you can but in doing the best you can you have to take ‘reasonable care’ for, and ensure so far as is ‘reasonably practicable’, the health and safety of everyone, the firefighters, bystanders, people in the property etc but what that means depends on all the circumstances.  You have to consider the risks, what is the most effective thing that can be done without exposing people to clearly unacceptable risks (do not let the BF firefighter actually enter the building), and do the best you can.

I don’t think the law would expect any more, or less.

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