M. Eburn

Non approved PPE, the NSW RFS & Work Health and Safety

In Fire, OHS, Volunteer compensation on November 22, 2014 at 11:14 pm

This is another Work Health and Safety issue from a member of the NSW RFS.  My correspondent reports that:

Recently the post below was made in a forum that was discussing the use of non-RFS sourced smoke masks.

“… Volunteers from time to time purchase and use other items of PPE that are compliant with [Australian Standards]… but not on the RFS approved purchasing list. The NSWRFS are bound to government procurement process and utilise many criteria when selecting products for use, such as compliance with NSWRFS specification (sometimes this exceeds the [Australian Standard]), ability for the product to be readily available and have sufficient numbers and into store logistics options, product support, value for money, strength of the companies trading, the list goes on. It is about providing suitable PPE products to meet the high standard of WH&S that the NSWRFS are required to maintain under the WH&S legislation. If you choose to purchase and use a non-complainant piece of PPE and as a result sustain injuries you may implicate not only yourself, but all those around you from your Crew Leader to the Commissioner for not ensuring you have the appropriate PPE under the WH&S legislation.

Whilst the “motherhood” style of this is understood, ie the intention to provide a safe workplace and working environment, the broadness of it concerns me as it may be at odds with, or perhaps overstates the requirements or limitations of WHS with regards to PPE / PPC.

Read in particular the portion in bold, above.

Firstly, the RFS, as much as it thinks it might, does not provide all required PPE. As an example, look at a broad brimmed hat for sun protection. We work often outside and not always directly at fires, and in Australia a broad brimmed hat is necessary for sun protection. The RFS does not supply these items. So I bring my own, it doesn’t work well, I get skin cancer, and I put in a workers compensation claim. Another example, the RFS does not provide folding chairs. I bring a chair or my brigade buys chairs and we use these chairs at staging areas whilst waiting for deployment. I fall out of my chair and get injured, and place a compensation claim. In these two situations the RFS tells me the items does not meet the Australian Standard and I have placed myself, my crew leader, and the service at risk.

Secondly, the RFS sourced item that meets the Australian Standard could still be dangerous or deficient. Going back to smoke protection, the RFS P2 mask is prone to ignition by embers, does not seal well and is ineffective especially for members with facial hair, and there is plenty of anecdotal comments from members that allude to these issues. So a member decides to use an item that does not meet the Australian Standard but is actually safer. The member now theoretically puts himself and the service at risk with those “implications”.

Thirdly, the RFS issues PPC that does not meet the Australian Standard for a task that the RFS allows, for example structural firefighting or village firefighting. The Australian Standard requires a full “bunker suit” style ensemble. The RFS allows members to wear wildland PPC under certain circumstances eg external firefighting (a form of risk management) but it could be seen that the “bunker gear” would be safer and the best risk management.

Fourthly, I am aware of a brigade that in 2009, sourced a “better” smoke mask and approached the RFS Engineering Section for approval. The approval was not given, and instead a reply was given, with words to the effect “that the smoke mask could only be used at the risk of the member, and the service would not accept any responsibility or compensation claims arising”.

The “no fault” scenario of the workers compensation scheme is perhaps ignored in the recent statement, and perhaps in retrospect the communication given in 2009, and the recent statement could be implied to communicate that the member’s perceived negligence puts the member at risk by “implicating” oneself; (Implicating for what, though I ask).

Also, I would suggest that the WHS legislation does not specify any particular PPE/C nor does it imply that the Australian Standard is the measure of being appropriate PPE/C other than that it perhaps it should be “reasonable” which is not defined.

Let us then consider the text in bold, above.  It says:

If you choose to purchase and use a non-complainant piece of PPE and as a result sustain injuries you may implicate not only yourself, but all those around you from your Crew Leader to the Commissioner for not ensuring you have the appropriate PPE under the WH&S legislation.

Is that true and if so, implicating oneself, and others, for what?

Workers Compensation

My correspondent is correct that the scheme provided for in the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) is a no-fault scheme.  A fire fighter is who is injured:

  • in the course of fighting a bush fire or carrying out ‘an associated operation or work; or
  • when travelling to respond to a fire or as part of that associated operation or work,

is entitled to compensation (ss 7 and 10). There is no question of whether or not it was the fire fighter’s, or someone else’s, fault and there is no discount for ‘contributory negligence’ so the use of ‘non-compliant’ PPE is not relevant in that context.

Work Health and Safety Act 2011 (NSW)

What this must mean is potential prosecution under the Work Health and Safety Act 2011 (NSW).  It’s a criminal offence not to comply with one’s duties under that Act and a volunteer is required to ‘take reasonable care of their own health and safety’ and to ‘co-operate with any reasonable policy or procedure …relating to health or safety at the workplace that has been notified to workers’.  As my correspondent has also, correctly noted:

… the WHS legislation does not specify any particular PPE/C nor does it imply that the Australian Standard is the measure of being appropriate PPE/C other than that it perhaps it should be “reasonable” which is not defined

The role of Australian Standards

Standards Australia is a company that creates the various standards.  In an earlier post (‘Face masks for residents near the Hazelwood Mine fire, Victoria’ (February 26, 2014) I said:

… it may come as a surprise that Australian Standards are not legally binding. There is no general obligation to comply with Australian standards though there may be in specific circumstances. For example a motorcycle crash helmet must comply with Australian Standard 1698-1988 but that is because of a specific rule (Trade Practices Act 1974 – Consumer Protection Notice No. 9 of 1990 – Consumer Product Safety Standard: Protective Helmets for Motor Cyclists) rather than some general obligation to comply with the Australian Standards.

The relevance of the Australian Standards is that if there is an allegation that someone failed to act reasonably, whether that is in a claim for negligence or a prosecution for work health and safety standards, evidence of compliance with (or failure to comply with) an Australian standard may be evidence that the defendant’s response to a risk was (or was not) reasonable. It is not however conclusive evidence, compliance with an Australian standard does not prove a reasonable response to risk; evidence of failure to comply does not prove an unreasonable response to risk. It is just one factor to be considered in all the circumstances.

A search of the Australian Legal Information Institute (AustLII) using the search <“Australian standards” and negligence> brings up 996 cases which may sound like a lot but when one considers that is nearly all Australian tribunal and courts going back about 25 years and, in the case of the High Court, to 1901, it’s not really that many.  The cases (having looked at a view from the superior courts, not all 996) do as my correspondent has suggested, they refer to the Australian Standards as evidence, but not conclusive evidence as to what may be required in particular circumstances.

What is required?

From a Work Health and Safety perspective the issue is whether or not the person conducting the business or undertaking (the PCBU) has ‘so far as is reasonably practicable’ taken care to ensure the health and safety of the workers, including volunteers.

If there really is an Australian standard for folding chairs, and a fire fighter has bought one that is not compliant one might infer that it’s not safe; so if a fire fighter is intending to use their homemade dodgy built chair then it would be reasonable for the brigade captain to tell them not to use it; but if it’s been purchased from a reputable supplier there is no reason to think that it’s not safe as a chair (though it may not be safe to carry it in the appliance or use it at a particular staging post because of some issue there, but that’s a different matter).   If there is no relevant standard, then ‘non-compliance’ is not an issue.

Where there is a relevant standard one would expect that equipment that does comply with a relevant standard is fit for purpose, but that simply begs the question of what is the purpose that the standard was tested against; an item may comply with the standard and still not be safe for a particular use.  .

A piece of equipment may not be approved by the RFS but that does not meant it is not safe.  The quoted post says that in selecting equipment the RFS has to consider the

… ability for the product to be readily available and have sufficient numbers and into store logistics options, product support, value for money, strength of the companies trading, the list goes on.

None of those criteria are specifically about safety.  So there may be a piece of equipment that is useful and safe but which can’t be obtained, or supplied, by the RFS in a cost effective way. But that does not mean it would be unsafe if a member chose to buy it themselves.  The fact that a piece of kit has not been approved, given the factors that they have said they take into account, does not meant that it is not safe.  It really is a question of fact and warrants a risk assessment in all the circumstances.

Of course there is a difference between gear that has not been approved and gear that has been specifically prohibited.  If there is kit that the RFS has specifically ordered is not to be used as an assessment has indicated it’s not safe for the RFS purposes that is again a different issue and a worker (including volunteer) must comply with those sort of directions to meet their duty under the WHS Act.

Conclusion

The issue is not whether or not an item is compliant or whether or not it is issued, the issue is whether or not it is safe and that is a question that depends on the particular circumstances. The use of non-compliant or non-approved equipment does not necessarily determine whether or not equipment is safe.  Even equipment that is compliant and has been issued, may still be unsafe in the circumstances.

Distributing warnings via Facebook and potential legal liability

In Fire, litigation, Negligence on November 16, 2014 at 11:35 am

This question relates to the Facebook group ‘NSW Incident Alerts’.

To be up front, even before I identify the question, let me make three disclaimers.  First: I subscribe to, or ‘like’ the group NSW Incidents Alerts. It’s in effect a ‘rebroadcast’ service that takes warning and news from the various emergency services (police, ambulance, Fire and Rescue NSW and NSW RFS, perhaps others) and resends them to the various subscribers.  According to their Facebook page they have 325 000+ ‘likes’ so they have a substantial audience.  As I say, I am one of that 325 000+.

Second: internet law is its own growing field of law and not my area of expertise which I claim is the law relating to emergency services.  Here there is an overlap but I’m not up to date on the case law and legislation specifically about internet services so I’m going to answer this question with reference only to general principles of law and the law of emergency services.

Third and finally: the question, below, relates to any potential liability the administrators may have for rebroadcasting the various warnings. My conclusion is that there is no real risk of the site managers being exposed to legal liability, but just as I will argue that no-one would or could rely on them in a legally relevant way, so too they should not rely on this.  I am answering the question I have been sent with all the limitations that must involve (eg I don’t have access to all the relevant facts); I am not giving legal advice to NSW Incidents Alerts so just as someone should not rely solely on them for hazard warnings so to, no-one should rely on this generic discussion paper.

Now to the question:

There is a page on Facebook called ‘NSW Incident Alerts’. They post, obviously, about incidents across NSW. They are not a government agency, nor do they pretend to be. Basically, they regurgitate information about fires, floods etc found through other sources and advise people about these incidents.

Tonight I asked them why they do not always refer people to the relevant agencies in their incident posts, so that the public can go to the appropriate source for further information … I asked if they (the page admins) were concerned that they may get into legal trouble if someone who accesses their page finds themselves in danger as a result.

For example, tonight I drew their attention to a post from a lady seeking information about a near-by fire. The post had gone unanswered for 3 days. Admittedly, the woman said that she had looked on the RFS website and saw nothing, but not only was she not then referred to the agency via another means (such as the 1800 number), but she was ignored. If this woman unfortunately found herself trapped by that fire, could she sue the page admins?

So, are they liable?

Let us accept this is a new or novel fact situation.  This is not like a car accident when we know car drivers owe a duty of care to other road users, or schools where teachers owe a duty of care to their students.  This is not one of the run of the mill well established situations where one can show a duty of care exists.  When considering a new or novel fact situation one has to consider multiple factors, what the courts have called the ‘salient features’ of the relationship.   In Caltex Refineries v Stavar (2009) 75 NSWLR 649, Allsop P in the NSW Court of Appeal identified a list of relevant salient features.  He said (at [102]-[103]):

… If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.

These salient features include:

(a)          the foreseeability of harm;

(b)          the nature of the harm alleged;

(c)           the degree and nature of control able to be exercised by the defendant to avoid harm;

(d)          the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;

(e)          the degree of reliance by the plaintiff upon the defendant;

(f)           any assumption of responsibility by the defendant;

(g)          the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

(h)          the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;

(i)            the nature of the activity undertaken by the defendant;

(j)           the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;

(k)          knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;

(l)            any potential indeterminacy of liability;

(m)         the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;

(n)          the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;

(o)          the existence of conflicting duties arising from other principles of law or statute;

(p)          consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and

(q)          the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

He went on to say (at [104]) that the list is not complete nor is it essential that every one of the factors listed in (a) – (q) be considered in every case; it all depends upon the circumstances and the alleged negligence.

An action in negligence is always very fact specific and the plaintiff has to show that there was something the defendant could have done, or should not have done, and that it would have made a difference.   In deciding what a reasonable response to a risk is, if there is any duty to respond to the risk at all, the court must consider:

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

(b)          the likely seriousness of the harm,

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

(d)          the social utility of the activity that creates the risk of harm. (Civil Liability Act 2002 (NSW) s 5B(2)).

Finally if the court finds that there was a duty and that the response to the risk was not ‘reasonable’ it must consider whether any breach caused the plaintiff’s damage.  In so doing the court must consider whether the negligence was a necessary condition for the damage and then whether ‘it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused’ (Civil Liability Act 2002 (NSW) s 5D).

So our assumption here is that someone receives the rebroadcast of a fire warning.  The warning is issued by the RFS and resent by NSW Incidents Alert.  Someone receives that and sends a message back asking for more detail about the fire.  They get no answer and sometime later they are burned out.  Can they sue?  (Remember anyone can sue just by going to the court house and filling in the form; the real question is ‘is that likely and is there as a matter of law any potential liability?’).

First of all let us look at Allsop P’s list from (a) – (q):

(a) the foreseeability of harm;

Let’s assume that it is foreseeable that if someone doesn’t know a relevant fact about the fire that they may make a poor judgement and not leave when they should.  We know the fact in question is relevant or material as they asked it.

(b) the nature of the harm alleged;

Here the nature of the harm alleged is that they got burned out, but the incidents alert team, no more than the RFS (assuming it’s not an escaped back burn) did not cause the harm by fire.  The harm alleged is some lack of information.

(c) the degree and nature of control able to be exercised by the defendant to avoid harm;

The harm is being ‘burned out’.  The Incidents alert team are not in charge or in control of the fire.  They are in control at best of their website.   The lack of information did not cause the harm, the fire did (we’ll return to that on causation).

(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;

In these days of shared responsibility and the media messages from the emergency services and the multitude of forms of warning, any suggestion that the plaintiff is vulnerable to the effect of fire, that they depended solely on this forum to give them information is unreasonable.  If their question was not answered there were alternatives to go to.

(e) the degree of reliance by the plaintiff upon the defendant;

There could be no reliance by the plaintiff.  This is not a situation where the plaintiff has to rely on the defendant as only the defendant can act to protect them or has promised to do so.  The NSW Incident Alerts is pretty clearly just resending official messages.

(f) any assumption of responsibility by the defendant;

The NSW Incidents Alert team assume no responsibility for the people who subscribe to their page.

(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

There is no relevant proximity.  There are some 325000 subscribers and the team cannot know who they are or where they are.  The management team are not creating the risks of fire, or flood, or accident or anything else they rebroadcast.

(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;

The relationshop is tenuous at best.

(i) the nature of the activity undertaken by the defendant;

The defendant’s activity is to rebroadcast warnings only.  They don’t write them and they don’t manage the information that goes into them.

(j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;

The management team is not creating the danger or hazard.

(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;

The fact that the plaintiff has asked a question could suggest that there is actual (if they read the question) or constructive (if they should have read the question) knowledge so that might suggest that an answer should be given, but the answer would be ‘contact your local emergency services’.

(l) any potential indeterminacy of liability;

The class of people looking at there site is infinite.  It’s not only the 325 000 subscribers but anyone can find their page and look at it.  They can’t know who the people are, anything about their state of mind or preparedness, where they live, what information is relevant etc.  They can’t be liable to everyone who uses the internet.

(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;

The only suggestion is that they should say to people ‘look at the official website’ or ring the information line but there’s no guarantee that would avoid the harm of being impacted by fire.

(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;

A duty to respond to people and to take responsibility for them would detract from their responsibility to look after themselves

(o) the existence of conflicting duties arising from other principles of law or statute;

There are no conflicting duties as the management team for NSW Incidents Alerts are not operating under any statute.

(p)          consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and

(q)          the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

I’m not sure that (p) or (q) are particularly relevant.

Even so, in the circumstances, given that NSW Incidents Alerts doesn’t claim to be anything other than a consolidation service it’s akin to people sitting in a coffee shop saying ‘have you seen the latest from the RFS?’ It doesn’t claim to be a sole authoritative source, it does not offer to provide individualised warnings, and no reasonable person would rely solely on them as their source of information.  I have no doubt that there is no way they would be found to owe a duty to answer questions seeking particular advice in relation to a particular fire.

Let us assume, however, that I’m wrong.  That there is a duty to answer a question about a specific fire, what does the reasonable defendant do in response.   Here we consider

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

How probable is it htat the person will fail to take steps to either prepare to defend their home or leave if their question is not answered?  Given the extent of other warnings, the abilty to look out the window and see whether there are helicopters and fire fighters around, the ability to turn on a tv or radio or to make other inquiries, I would suggest it’s a very low probability that failure to anwer the question would lead to harm.

(b) the likely seriousness of the harm,

We can accept that the harm would be severe.

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

The NSW Incidents Alert facebook page says the page is run by 5 volunteers across the state.  They are not actually in the various coordination centres, they presumably have no more information than anyone else.  Someone asking for specific information could not get it from them.  So answer the question would be an undue burden, but referring them to the RFS Helpline or webpage, that would not be so onerous but actually monitoring the traffic to find the question would be.  They don’t claim to be a two way street, the broadcast information.  Asking them to have in place some method to monitor questions coming to them 24 hours a day would be far above anything they could do, or claim to do.

Equaly they may not need to as there are other subscribers who could pass that information on, that being the nature of the web and social media.  So it may be appropriate not to manage them on the basis that their audience provide an effective monitoring service.

(d) the social utility of the activity that creates the risk of harm. (Civil Liability Act 2002 (NSW) s 5B(2)).

There is a great deal of social utility in their service and that needs to be considered.

In Vairy v Wyong Shire (2005) 223 CLR 422Hayne J said (at [125]) ‘The inquiry into breach… must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be “nothing”.’  So it may be foreseeable that if someone asks about a fire, and the management team don’t say ‘please contact the RFS directly’ that there could be some harm, but that risk may be so low (as I suggest it is) and the cost of actually trying to put in place a system to monitor incoming correspondence 24 hours a day so expensive and pose such a risk to the socialy useful purpose, that the appropriate response is to say ‘there is a risk but there is nothing we can reasonably do about it’.

Assume, again, that I’m wrong.  Then the issue becomes did the failure to answer the question cause the harm?   Remember now we have to ask whether the failure to answer the question was  ‘necessary’ condition for the harm; I would suggest not.  The necessary condition was for the person, if they didn’t make any other inquiry, failing to look after themselves.  But even if it was there are good reasons to argue that it is not appropriate to extend liability to NSW Incidents Alert.  First their actions are consistent with a resilient community, shared responsibility and the National Strategy for Disaster Resilience.  They are creating a community and sharing official warnings and news.  That is they are assisting the emergency services to get their message out (I’m not suggesting they have the services blessing, they may nor may not, but that is what they are doing).  National policy encourages self help to relieve the burden from the state.   Shared responsibility includes the idea that the person asking the question is responsible for themselves.  They may be demonstrating this by asking for more information but if they don’t get an answer they are not accepting responsibly if they don’t make other inquiries on their own initiative.   If for whatever reason they are unable to do so eg because they are intellectually impaired or otherwise vulnerable then there are others who are closer – more proximate – who would have a duty to look after them, not the NSW Inicdents Alert team who can’t know anything about them.

In summary, in the circumstances described, it is my view that;

  1. NSW Incident Alerts would owe no relevant duty of care to ensure that questions coming back to what is a broadcast service are answered;
  2. Even if they did the relevant response may be to do nothing as they simply cannot provide that service but the social value of what they are doing still justifies the risk; and
  3. Even so I do not think the failure to answer the question on that website would be the legal cause of any harm.

So where a question for more information is asked but not answered with advice ‘please ring the RFS’ could the operators of this Facebook page be sued and would they be liable?  As a lawyer I’ll not say ‘never’ but in my view there is no real risk of the site managers being exposed to legal liability,

What’s really interesting is this belief that the agencies or the government have to do something to rescue everyone (see also ‘Firefighting and WHS in South Australia’ (November 14, 2014)) when that is simply not the case.  The emergency services want to say and do say ‘in extreme events, whether floods or fires, people cannot expect the emergency services and we cannot deliver personal warnings’ but yet, this unfounded fear that everyone will, and does, get sued leads to the sort of fear that if a question isn’t answered immediately there will be legal liability.

I agree that failure to warn arguments could be easier to run than failure to respond (see ‘The emerging legal issue of failure to warn’ (2012) 27(1) Australian Journal of Emergency Management 52-55 and ‘Litigation for failure to warn of natural hazards and community resilience‘ (2008) 23(2) Australian Journal of Emergency Management 9-13) but since I wrote those papers there hasn’t been a rush of cases.  It was presumed it would be an issue in the Canberra fires litigation but at the end of the day it was not; and in the Black Saturday litigation the claim that police were liable for failing to exercise a statutory duty to warn was dismissed (see Matthews v SPI Electricity (No 2) [2011] VSC 168 and ‘‘Black Saturday’ litigation’ (May 11, 2011).

In this context if someone reads an alert, sends a question for more detail but gets no answer and takes no further action to look after themselves, that’s their own lookout.  If anyone has a legal obligation to take steps to protect them, or warn them, it won’t be NSW Incidents Alert.

Firefighting and WHS in New South Wales

In Fire, Negligence, OHS, Volunteer compensation on November 15, 2014 at 6:25 pm

This question was originally posted as a comment on the post ‘Firefighting and WHS in South Australia’ (14 November 2014).   My correspondent writes:

I am a volunteer firefighter with the NSWRFS and currently a deputy captain. An issue still sits with me uncomfortably every time I attend an incident particularly after the ratifying of WHS and PCBU legislation (volunteers now have same rights under WHS as paid employees within NSWRFS).

Frankly it seems nothing has changed. It is still an archaic self-assessment method of ensuring you are fit for work. This is despite being told that our PCBU (NSWRFS) is now responsible for ensuring that we (volunteers) are in fact fit and healthy for frontline firefighting. I may be wrong but I don’t know of many other workplaces where fitness and health would be more important than at a wildfire front dragging hoses in extreme heat. My main concerns are;

Does the NSWRFS owe a duty of care to its volunteers (employees) to ensure they are medically and physically capable of undertaking such rigorous tasks? If so why has there not been some fitness or medical standard applied as in other industries (ie mining, aviation etc). Does self-assessment and self-disclosure method under such extreme work conditions get the PCBU off the hook should an injury or fatality occur?

Secondly and as importantly, does the NSWRFS realise this issue and take relative precautions in not sending frontline volunteers into hazardous situations (that may be relatively benign for a fit and medically assessed person) in order to appease the law. Does the NSWRFS have to accommodate the whole fire crew based on the lowest common denominator (the least fit) when working a fire? Would this amount to unproductive and excessively costly firefighting? Would the scenario where volunteers were required to undertake fitness tests (Auditor General is currently pursuing this) mean greater fire ground productivity and most importantly safer frontline volunteers?

Is the Government concerned about losing too many “non fit or non-healthy volunteers” from the ranks if assessed as not fit for work in the process? As I see it there must be an enforceable duty of the PCBU to its Volunteers (employees) to make sure they are safe on the fire ground.

I believe this (WHS, PCBU) is one major issue of law contributing to unsustainable fire ground suppression costs.

I am fully aware of volunteers and the ethos of bucking in and having a go, but is that good enough in this modern litigious society?

There are some things there I cannot comment on, in particular what the RFS ‘realises’ or what it is actually doing to restrict unfit firefighters from responding to a fire ground, nor can I comment on the Government’s concerns (if any).  My comments are limited to the law, questions on how the RFS are dealing with the legal obligations will have to be directed elsewhere.

As noted New South Wales is part of the national work health and safety scheme (unlike WA, see ‘Firefighting and OHS in Western Australia’ (15 November 2014)).  The Work Health and Safety Act 2011 (NSW) does indeed say that the term ‘worker’ includes a ‘volunteer’ so a person conducting a business or undertaking’ (a PCBU) must take the same care of its volunteers as it does its paid staff.  ‘Person’ in this context means a ‘legal person’ so includes the RFS.

The obligation is not however to ensure safety but to do what is reasonably practical.  That 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.

One can imagine, without being a medical practitioner, that being unfit on a fire ground poses plenty of risk ranging from sprains and strains to death; but what can one do about it?  One way to eliminate the risk is to have a minimum fitness standard but there is no doubt that comes at a cost.  A diminution of firefighters restricts the services ability to respond to fires and might also be considered inconsistent with the National Strategy for Disaster Resilience and the concept of shared responsibility.  Having members of the community in the RFS facilitates a more resilient community and the RFS has to deal with communities as they are, not as we’d like them to be.

One can say that why has ‘some fitness or medical standard’ has not been applied would appear to because there isn’t one.  The former Bushfire CRC funded significant research on trying to develop appropriate fitness standards and to identify the risks faced by fire fighters on the fire ground (see Bushfire CRC, Occupational Health and Safety and Surge Capacity).   In the absence of an identified and accepted standard, and test, it would be hard and not reasonable for the RFS to invent its own as such a test needs to be actually related to the workplace risks (see ‘Occupational Health and Safety and Discrimination’ (January 5, 2010)).  The fact that research is being undertaken in this area suggests that the RFS (as a contributor to the CRC) is aware of the issue, but what to do about it would appear to be unsettled.

In deciding what a reasonable response to the risk is, ‘self-assessment and self-disclosure’ may well be sufficient if it’s done in a culture that encourages and allows people to step down without any criticism or peer pressure not to.

Ultimately the trend in modern law is not to impose blanket tests that apply to all industries or to regulate each industry.  The modern WHS model is to oimpose on the PCBU an obligation to undertake a risk assessment and take reasonable action to mitigate, not necessarily remove the risk.  Provided the PCBU can demonstrate a robust risk assessment process that will meet the demands of the WHS Act.

In terms of common law and negligence the RFS may have a duty to look after its firefighters but they also have a duty to take reasonable care of their own safety and to consider their own ability.  If a firefighter is injured on the fireground, issues of negligence are unlikely to arise.  A firefighter is entitled to the equivalent of workers compensation via the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) a no fault scheme so they don’t have to prove that the RFS or anyone else was negligent in their fitness standards.

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