This inquiry reviews the performance of the Department in the conduct of hazard reduction burns that escaped and destroyed many houses and valuable community assets.    The report has been careful not to take a blame attitude (see ‘No one accountable, no ‘consequences’: Margaret River report‘ Sydney Morning Herald Online 24 February 2012); as Mr Keetly noted:

A sense of balance is also required to understand that everyone feels the losses, including the staff of the Department. Witness after witness from the DEC appeared before the Special Inquiry, clearly deeply affected by what had gone wrong and clearly also carrying the burden of the impact upon the very towns they were trying to protect and in which some of them live. These people are also part of the community and no evidence received by the Special Inquiry gave rise to any concern that the staff of the DEC were doing anything other than what they believed to be right. To ostracise or denigrate these people will simply amplify the losses felt by everyone and do little to make improvements for the future. (P 4, emphasis added).

The gist of the report appears to find that the fire was light a few days before extreme fire days and not enough resources were put in place to observe the fire overnight or to plan for how to deal with it should it flare up.    Keetly took the view, as other inquiries have found, that fire managers tend not to think about the ‘worst case’ scenario and what will they do if their plans don’t work.  He referred to the coronial inquest into the 2003 Canberra fires and said (at p 64) ‘The Coroner had been critical of the fire managers for possessing a level of optimism not based on objective facts and this, it must be said, is similar to the risk planning and understanding evident in this matter.’    Similar findings were also made in the 2009 Victorian Bushfires Royal Commission.

The recommendations from this inquiry largely deal with DEC procedures and making sure that their guidelines and procedures reflected field learning and actually set out what was intended, so that field staff didn’t either misunderstand or not apply the prescribed procedures.   My concern with that is that there is an implication that you can reduce everything to writing and that what is written down should and will provide ‘guidance’ (see p 60).  Written instructions are not the only method of communication, and probably not a very effective method of communication.  I’m sure my employer has any number of policies and procedures recorded somewhere that I am neither aware of, nor conversant with.    People don’t have time to read the manuals, don’t remember what they say and don’t carry them with them for constant reference.  Manuals are translated into training and people remember their training and then think they are doing what is required even if practice actually develops that is different from or inconsistent with the manual, particularly if field operators decide that the processes in the manual don’t actually work in their context.

Putting things in writing may help with the accountabilty measure, we can then judge performance against the written policy, but it can also curtail professional judgment.  If guidelines are flexible, eg managers should consider the risk to the economy’ there is room for dispute.  The manager says ‘I did consider it and decided x, but with hindsight y would have been better’ but that still shows ‘compliance’ but not a result the community is happy with (assuming that they wanted ‘x’ not ‘y’).    But if it’s too prescriptive judgments can’t be made.   This is an issue that is likely to be explored further when we get the report into the 2011 Queensland floods.  If we’re going to have a manual that says exactly what to do, we don’t need fire or flood engineers, only people who can read.

The reality is these decisions are incredibly complex and the desire to reduce everything to  a decision matrix belies that, and every inquiry that reveals defects in some process that is ignored or compromised doesn’t show that the managers are not doing the right thing but that decision making takes a certain amount of intuition that can’t be reduced to writing.  And sometimes the world lines up in a way that the residual risk, however small, will occur.

An interesting response to the report is that the Minister has announced that ‘DEC will suspend further prescribed burns within five kilometres of townsites and rural subdivisions’ (see Premier’s Media Statement).  The problem with that is, as colleagues in the Fenner School of Environment and Society at the ANU have shown, is that it is burning close to homes that has the most significant impact on reducing the threat to homes and lives (see Black Saturday provides bushfire answers; ‘“Clearing vegetation within 40 metres of houses was twice as effective as prescribed burning,” said Dr Geoff Cary from ANU.’  The full report of the research can be found on PLoS One).  Banning burning within 5kms of homes may reduce the risk from out of control hazard reduction burns, but it may mean the burns that are conducted are of little value in protecting homes and lives from wildfire!  For an interesting discussion on hazard reduction burns, and the significance of this research, listen to ABC Radio National’s Background Briefing, ‘Fighting Fire with Fire’ program, (broadcast on 19 February 2012).

It is not obvious to me that the recommendations, if adopted before these fires, would have necessarily made any significant difference to the decision making or the outcome.    Conducting hazard reduction burns, like everything, carries both risk and compromise.   What is required is informed community debate about the level of each we are prepared to accept.

Michael Eburn

The plaintiffs invite me to accept that their trial preparation is compromised by:

(a) the need for substantial further expert evidence because of the withdrawal by SPI Electricity of the admission;(b) late disclosure by SPI Electricity of the questions and materials to be provided to its electrical experts;

(c) late disclosure by SPI Electricity of an additional electrical expert;

(d) late service of SPI Electricity’s principal expert report by Professor Russell;

(e) recent delayed disclosure by SPI Electricity that relevant sections of the conductor had been removed from the site to a CSIRO laboratory; and

(f) discovery issues, particularly the provision by the State Parties of what was described as the majority of its discovery just before Christmas 2011.

The plaintiffs contend these considerations warrant the conclusion that a fair trial is not possible for the plaintiffs without at least a further six weeks of preparation time.

It was agreed that some of the delays were occasioned by the failure of SPI to serve Professor Russell’s report in accordance with the court ordered timetable.

His Honour was bound to make orders that would do justice for all the parties.  After a lengthy consideration of all the matters he refused to adjourn the case for six weeks, but did adjourn it for two.  The trial will now commence on 5 March 2012.  It will be very interesting to see if we get a judgement from the litigation arising from the 2009 Black Saturday fires before the ACT Supreme Court hands down a judgement from the 2003 Canberra fires!

Michael Eburn
14 February 2012.

The Minister who introduced the Bill explains its importance and what it will do in his second reading speech.

You can read the full text of the Bill and a detailed explanatory memorandum, here.

As this is a government Bill we can expect it will pass in due course and its provisions will be incorporated into the law of Victoria.

Michael Eburn
13 February 2012.

Dozens of ambulance officers a month are being fined for speeding on their way to code 2 jobs, which are urgent but not life-threatening…

Paramedics are demanding their bosses use discretion and waive fines for minor speeding in the course of their duties…

Ambulance officers are not issued with speeding fines when they are using lights and sirens for the most urgent, code 1, cases, but they are fined when on less serious, code 2, cases such as transporting people to hospital and overdoses.

The story may have some merit but there are so many, fundamental legal mistakes, that it is no credit to either the Herald Sun or Ambulance Employees Australia.

The critical starting point is the law.  All Australian states and territories have adopted the uniform Australian Road Rules and have incorporated the rules into their local laws.  In Victoria the relevant law is the Road Safety Road Rules 2009 (Vic) (‘the Rules’).  These rules are regulations made under the Road Safety Act 1986 (Vic).

The basic speeding offence (as well as more specific offences) is set out in the Rules.  Rule 20 says:

A driver must not drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving.

There are exemptions for the driver of an emergency vehicle, which includes an ambulance.  Rule 306 says:

A provision of these Rules does not apply to the driver of an emergency vehicle if-

(a)    in the circumstances-

(i)                  the driver is taking reasonable care; and

(ii)                it is reasonable that the rule 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.

Let us assume that Victoria Ambulance and Victoria Police have discussed what constitutes a ‘code 1’ job.  Let us also assume that Victoria Ambulance have given some instruction to their staff about what constitutes a ‘code 1’ and what is expected.   We can infer, if that is the case, there is agreement between Victoria Ambulance and Victoria Police that, all else being equal, it is reasonable that ambulances may be driven in excess of the speed limit on code 1 jobs or to put that in the terms of the section, that when on a code 1 job, clause 306(1)(ii) applies.  Whether or not the driver is taking reasonable care is a matter the police will judge taking into account all the circumstances in particular the time of day or night and the traffic conditions.

Whether or not clause 306(b) applies is not a matter of judgement; either the blue and red flashing lights, and/or the siren are on, or they are not.

When clause 306 applies, it is not the case that traffic fines are ‘waived’, it is the case that no offence has been committed.  Ambulance officers are required to comply with the law but the law includes clause 306 of the Rules.  ‘Ambulance officers are not issued with speeding fines when they are using lights and sirens for the most urgent, code 1, cases’ because that is the law, not because anyone is doing them a favour.

Paramedics may demand ‘their bosses use discretion and waive fines for minor speeding in the course of their duties’ but it is not the discretion of the Ambulance service.  The decision on whether clause 306 applies lies at first instance with the police.   And the police don’t have a lot of discretion. A police officer by the side of the road with a RADAR or LIDAR speed detector may choose not to fine an ambulance officer but if they are detected by stationary cameras then there is a record and a process to be followed.  Whether the ambulance has the red and blue lights on will probably be seen on the photo.  If they are not on, there is no exemption.  If they are on then the matter is probably referred to ambulance to determine if it was a code 1 job or not.  If not, then even if they have their lights on if they are acting contrary to ambulance instructions then it is not reasonable that the rule should apply, and there is no exemption.

Police would have to issue a fine.  If they did not they could face internal disciplinary proceedings or worse.  One can imagine a journalist could, if they chose, make a story when someone finds they got fined in circumstances where a non-exempt ambulance officer was not on the basis that police were helping out their mates and not issuing fines notwithstanding the law had been breached.

An ambulance officer who is issued with a traffic fine and who believes that, for example, the patient’s condition meant that urgent ‘code 1’ travel was required and who activated the lights and siren, could make representations to the police or, ultimately, elect to have the matter determined by a court.   A magistrate would (or is at least meant to; but see Magistrate O’Shane dismisses case against a man accused of assaulting a NSW Paramedic and Commentary on Magistrate O’Shane) hear both sides and make a decision in public with published reasons as to why they believe that the exemption does or does not apply.

The AEA spokesman is quoted as saying the ‘pressure to speed was worse now than ever before’ that may be true but that is trite and no justification for not issuing speeding tickets. The defence ‘I was just doing my job’ has never been a lawful defence.   Ambulance officers like everyone are expected to do their job in accordance with the law, that law includes exemptions such as rule 306 of the Road Rules and other defences that justify treating people in circumstances that may be an offence if a non-ambulance officer gave the same treatment.  It is not the case that we just don’t apply the law because we value the work of paramedics, the law contains provisions, such as rule 306 to allow them to do their work, but the law is not carte blanche, there are conditions that must be met and in the case of rule 306 they are that it is reasonable and the lights and/or sirens are activated.

The fact that the job has demands does not justify breaking the law as the heavy truck industry has learned.   There are increasing obligations upon the supply chain, from manufacturers to retailers to ensure that their demands don’t put unreasonable burdens on truck driver’s forcing them to speed or drive beyond the regulated prescribed hours.  If there is “… pressure on paramedics to get response times down and offload patients at hospitals” then the answer is for ambulance officers to drive as required by the law, and the ambulance service to do something to ensure that they can meet their obligations by making appropriate staffing arrangements or having performance indicators that reflect reality.  If ambulance officers try to meet unrealistic expectations by breaking the law the ambulance service may not see a problem and, as noted, ambulance paramedics will face traffic infringement notices, but that is not a fault with the law and no reason not to issue fines or to assume that the speed limit for ambulances is some percentage higher than for other vehicles.  Simply leaving it to police to decide if they should issue a fine (particularly when the incident has been caught by camera) is to open the door for favouritism, resentment and corruption and is the antithesis to the concept of the rule of law.

Finally the Herald Sun asks the loaded and misleading question, ‘Should paramedics be fined for doing their job’ and invites a ‘yes’ or ‘no’ answer, but this begs the question of ‘what is their job?’  It is not their job, nor a police officer’s job (see “Police caught on camera running red lights, speeding for no reason”) or a journalist’s job or anyone else’s job to break the law.   A paramedic should not be fined for speeding when rule 306 applies but speeding when it does not apply is not part of their job.    If the answer to that question as ‘yes’ what happens when the speeding paramedic runs over a child and is not prosecuted because they were ‘just doing their job’?

In other posts (Questions about the new Work Health and Safety laws; Suspended jail sentence for firefighter involved in a fatal accident) I have made the point that if anyone in the emergency services are concerned about legal liability, and in particular criminal liability, the risk lies in driving emergency vehicles.

Ambulance paramedics, and more importantly the AEA should understand

1. The decision not to issue a traffic infringement notice is not a matter left to the whim of the police, the ambulance service, or the public; they are not fined because the Government has granted an exemption as part of the law; to benefit from the exemption the law has to be complied with;
2. The decision whether to issue a traffic infringement notice, or to withdraw it, is a matter for the police, not the ambulance service;
3. Pressures of work is not an excuse for breaking the law and, worse, exposing others to risk of injury or death.   The fact that the ambulance is responding to a life threatening emergency is no good reason to expose others to injury or death; if you are going to exceed the speed limit, or travel through red lights you have to have the warning devices (lights and sirens) on to warn other drivers so they can make way.  If you do not you do not get an exemption from any rules and may face charges for offences that are much more serious than speeding.

Michael Eburn
13 February 2012

In a paper that now appears in the Canberra Law Review I have made an argument on why the Commonwealth should pass legislation in this important area.   My paper is called ”Responding to Catastrophic Natural Disasters and the Need for Commonwealth Legislation” [2011] CanLawRw 30; (2011) 10(3) Canberra Law Review 81.  You can find the paper either on the Law Review’s own website, or via the Australian Legal Information Institute (AustLII).

In this paper I also discuss the Canadian emergency management legislation. In Canada there is a federal emergency management minister, a role now filled in Australia by the former Attorney General Robert McLelland.  The Canadian model may be a model that could be adopted here, given the current arrangements do not make it clear what the role of this new portfolio is – see my earlier post ‘New Minister for Emergency Management’ (December 12, 2011).

Michael Eburn

Majority of O’Shane decisions overturned in Supreme Court appeals

and in an opinion piece in the same paper:

Resignation now could help O’Shane preserve a proud legacy.

The comparison data between the three magistrates did not end up in the paper, so I’ll put it here:

We can observe that Magistrate 2 was overturned in 100% of civil appeals, and Magistrate 3 in 100% of criminal appeals, but in each case there were only 4 compared to the 16 criminal appeals, and 40 civil appeals against Magistrate O’Shane’s decisions.  It is of course the grounds or reasons for upholding the appeals that is the real concern.  A magistrate may have a case that involves a complex question of law and he or she has to decide the matter quickly and perhaps with limited assistance.  By the time the matter gets to the Supreme Court the Judge will have more time and will be assisted by leading Senior Counsel who have had time to consider and draft legal submissions.  For a judge to rule that, after due consideration, on a tricky point, the Magistrate made an error is simply to acknowledge that Magistrates are human or that the law was unclear and the Magistracy will be assisted by more thought out direction.  Being overturned in situations like that is hardly a reflection on a Magistrate’s performance.

In the case of Magistrate O’Shane, however,  Justice Garling, in Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 (3 February 2012)  said:

69. “… it is difficult to understand how the Magistrate has fallen into errors of the kind which I have found, since this judgment is not the first occasion upon which the proper procedure has been described, and the correct procedure pointed out to the Magistrate by this Court.

70. Her Honour has had the correct process drawn to her attention in a number of decisions of this Court, on appeal from her determinations in summary proceedings. These include:

(a) DPP v Wunderwald [2004] NSWSC 182 (Sully J);

(b) DPP v Lee [2006] NSWSC 270 (Howie J);

(c) DPP (Cth) v Neamati [2007] NSWSC 746 (Howie J);

(d) Commonwealth Director of Public Prosecutions v Acevedo [2009] NSWSC 653 (Davies J).

71. If I may say, with respect, the judgment of Sully J in Wunderwald sets out in a model of clarity, the Magistrate’s obligations when considering whether a prima facie case had been established. His Honour’s judgment was not followed in this case, but rather seems to have been entirely ignored.”

Our paper has included other quotes indicating the sort of errors, not on tricky points of law but on fundamental points of procedure, that have been made by Magistrate O’Shane.

Michael Eburn

8 February 2012.

The cycle is now repeating itself with the Queensland floods of 2011 and we are now well into ‘accusations and blame’, as reported by the ABC: Qld Government could face massive flood lawsuit

Of course the Queensland government, as with business and citizens are already facing huge costs from those floods and the 2012 floods.  Maurice Blackburn principal Damian Scattini is reported to have said some of the claimants were insured but others were not, or were underinsured.  If the claimants were insured then presumably it will be their insurance companies who will sue exercising their right of ‘subrogation’.  That right means if you claim on an insurance policy, the insurer is given all your rights, and may seek to recover whatever they paid out on the claim.  That right means that they get to sue not in their own name, but in your name – that is what happened after the 2003 Canberra fires and I’ve often wondered if many of the people named as plaintiffs in that case realised that there was legal action in their names.

Following the 2011 Perth fires, insurers have also started litigation in the names of their policy holders; see  story ‘Insurers sue over fires’ from WA Today (10 October 2011).  In that story one person is quoted as saying ‘… most people in the area would not want to be part of the legal action. “My name should not be on there, I’d be absolutely spewing if it were.”  Regrettably for the insured, they have no say in the matter.  They don’t get to direct their insurance company and their consent is not required for legal action to be brought in their name.

For those that were uninsured we may be tempted to say ‘you live by a river, you take the risk’ but as post event inquiries have revealed, flood and flood insurance are not concepts that were easiliy defined or understood.  We can understand why the uninsured may feel they need to seek compensation in this sort of claim because that is the only way they can recover any of their losses.

The chilling side effect however, is that yet again government employees may feel that they are unwilling to take on positions of significant responsibility because of the tendency of these proceedings to focus on personal blame – it was the engineers fault, rather than systemic issues.

We are told that ‘Ipswich City Council has flagged it will take legal action if the dam’s operator, Seqwater, is found to have been negligent.’  That is a statement that shows a fundamental misunderstanding of inquiry and legal processes.  An inquiry such as the Queensland flood inquiry, or the 2009 Victorian Bushfires Royal Commission, is set up to discover what happened.  Whether or not those facts meet the legal test of negligence is not something the inquiry can decide, that can only be decided by a court of law.   If Ipswich is waiting to see if SEQWATEWR is ‘found to have been negligent’ they have missed the point of the legal action.  The point of the legal action is to answer that very question so they will need to commit their money to the legal action to see if they, and the other claimants, can satisfy a court that whatever facts there are, constitute negligence.  As we have seen in litigation from the Black Saturday fires, the findings of these post event inquiries are not necessarily admissible in subsequent legal proceedings (see my blog ‘More from the Black Saturday litigation’, September 6, 2011)

If this action does proceed, the plaintiffs will also have serious legal hurdles to clear.  It will be very difficult to show that SEQWATER and its staff had a legal duty to take action to protect individual interests.  They were operating a major water utility and had a number of competing duties including, primarily, a duty to protect the dam.  It is likely that this litigation, if it proceeds, will take many years, and add many millions of dollars to the final bill, before it is resolved.

What has to happen is we have to find a way to distribute losses from significant and catastrophic events without degenerating into a process of finding someone, and not even some institution but someone to be blame.

Michael Eburn

5 February 2012

Uniform Work Health and Safety laws were meant to be in place across Australia on 1 January 2012.  Not all the states have met that deadline but it is expected the uniform laws will come into effect during the year.  They have already been enacted in New South Wales as the Work Health and Safety Act 2011 (NSW).

As my correspondent has noted, the new Act says that the term ‘worker’ includes a volunteer (s 7).  What is not correct is that a worker is ‘as such’ liable in the event of an accident.  Liability under the Act is not automatic and does not apply every time there is an adverse event.  What the Act says is

 “While at work, a worker [including a volunteer] 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.”

The problem with commenting on a scenario such as the one I’ve been given here is that there are not really enough facts.  A prosecution depends on so many factors, so for example there may be liability if the fire fighter slipped because he attended the fire knowing he or she was under the influence of alcohol, was deliberately wearing inappropriate footwear or was playing the fool.  Let us assume none of that applies.    Let us also assume that they have done nothing in blatant disregard of brigade policy or standing orders, for example they are using the hose couplings appropriately.

Slipping in a fire ground is always a risk; the Act does not require that anyone reduce risk to zero, it has to be reduced as far as reasonably practicable, taking into account factors such as the cost and difficulty of avoiding the risk in the context of the task to be done (s 18).  That section says:

In this Act, ”reasonably practicable”, in relation to a duty to ensure health and safety, means 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.

We cannot make fire fighting risk free nor is that expected.   The Rural Fire Service should understand what risks fire fighters face and take steps to minimise that risk, that would include thinking about ensuring surfaces on trucks are non-slip, that fire fighters have appropriate footwear, perhaps that nozzles turn off if they are dropped, that hoses are capable of withstanding the pressure of the water from the pumps etc.  None of this requires pointless written risk forms completed on the site, but risk assessment done long before anyone turns out to a fire.

The duty on the fire fighter is not to reduce the risk but to take reasonable care of their own safety.  As with reasonably practicable what is ‘reasonable’ depends upon all the circumstances, including the need to perform the task they are there to perform.  It is impossible to say, in advance, what is reasonable but any consideration must take into account all the circumstances.  Further, following the decision of the High Court of Australia in Kirk v Workcover [2010] HCA 1, the prosecution cannot simply point to the fact that there was an accident to show that somehow reasonable care was not taken, they need to identify what the defendant should and could have reasonably done to avoid the particular event and they need to prove, beyond reasonable doubt, that had the defendant take some other action, the outcome would have been different.

A hypothetical scenario misses many essential facts, but it is crucial to ask – what else could the fire fighter have reasonably done to avoid the injury?   In the scenario I have been asked about if there is a failing, the liability would fall on the NSW Rural Fire Service, not the individual.  In fact imagining when an individual may be prosecuted is very hard.   An example may be where, as some perverse form of induction, new members are lined up against a wall and sprayed with water from a high pressure fire hose and an injury is suffered.  In that case an individual may be prosecuted, but short of that it is hard to imagine when the individual would be prosecuted.

The National Compliance and Enforcement Policy issued by Safe Work Australia indicates that the relevant law enforcement agencies have a number of options and tools to encourage compliance with work health and safety duties that fall far short of prosecution.   A minor mistake by a volunteer in emergency circumstances is unlikely to result in prosecution as that would not be an effective way to remedy the issue.

One can never say never, so the cautious lawyer would say, in response to the question asked, it is extremely unlikely that a prosecution would occur in the situation described.   I would go further and say it so unlikely as to be regarded as far-fetched and fanciful.    Fire fighters should remember that paid fire fighters have always been subject to work health (or occupational health as it was called) and safety duties and they have never been prosecuted for breaches of the relevant Act.   Victoria SES was prosecuted over the death of a volunteer during a training exercise and NSW Fire Brigades (now NSW Fire and Rescue) were prosecuted over failings in their approach to a fire in a silo that resulted in four factory workers being killed.  In neither case was a volunteer or individual prosecuted.  Volunteers have also been subject to OHS law in the ACT, the NT and Queensland but again have not been prosecuted.

Volunteers should see the new laws as an attempt to extend protection, to ensure that the organisation for which they volunteer has the same legal duty to take steps to look after their interests, as it owes to the paid staff.     The fact that volunteers now also owe a legal duty is really nothing significant.  They owed legal duties to their colleagues and others before, just not under work health and safety legislation.

Work health and safety legislation also has to be read in the context of fundamental legal principles that apply to the criminal law.  In the event of a prosecution the prosecution must prove its case beyond reasonable doubt, the negligence of the accused must extend beyond mere negligence to a standard that can be described as gross or reckless negligence.  Even if the offence is proved, the penalties provided for in an Act are maximum penalties, for the worst offence by the worst offender.  The fact that a person is a volunteer in the emergency services would be taken into account and penalties can be reduced to no conviction, and no punishment, in appropriate cases (see Crimes (Sentencing Procedure) Act 1999 (NSW) s 10).

The risk of getting prosecuted for a breach of the work health and safety laws is extremely low, and in the scenario presented, non-existent.    If you are worried about being prosecuted for your volunteer work you would be much more concerned about the various traffic offences that you may commit when driving an emergency service vehicle; remember that negligent driving causing a serious injury carries a maximum penalty of 7 years imprisonment, 10 years if death is caused (Crimes Act 1900 (NSW) s 52A; see also my blog post regarding a CFA fire fighter charged after a fatal accident).  The fact that you are driving an emergency services vehicle, even with the lights and sirens activated, will of course be relevant but it is not a defence.

For more discussion on the application of the new laws to volunteers and the emergency services see my paper ‘Changes to occupational health and safety laws and the impact on volunteers in the emergency services’ (2011) 26(4) Australian Journal of Emergency Management 43-47.  See also the various fact sheets and information put out by

• Safe Work Australia and
• The NSW WorkCover Authority.

Michael Eburn

5 February 2012

• In the Australian (‘Magistrate O’Shane race row’ 21 January 2012) and
• Via the nine network

Not surprisingly the decision has led to heated debate on the Facebook page – Paramedic Philosophy 101.   The outrage is understandable but it may be worth keeping some things in mind.

1. The accused was charged with assaulting an ambulance officer.  An assault is doing any act with the intention of, or knowing that it will, put another person in fear of violence.  A battery is the actual, intended application of force to another.  Notwithstanding that there is a difference between assault and battery, they are both generically referred to as ‘assault’.  I think we can infer that what is alleged here is a ‘battery’
2. The criminal law isn’t really about protecting victims, it’s about punishing offenders.  A person who hits another may not be guilty of assault if they didn’t intend to, were acting under a mistake or were so affected by alcohol, drugs, mental illness, the effects of their injuries etc that they were acting ‘involuntarily’; so, for example an epileptic who hits a paramedic is not guilty of assault even if the paramedic is injured.  The critical issue in a criminal prosecution is not the effect of the accused’s actions, or how someone feels about their actions, it’s ‘what was going on in the mind of the accused?’
3. None of this is to suggest that any of this applied in this case.  What we do know, however, the accused had entered a plea of ‘not guilty’ (if he had entered a plea of guilty, there would not have been a hearing).  We don’t know why he entered a plea of not guilty, that is what his defence was going to be, but he at least had some argument he wanted to run.  There was at least a dispute over his guilt.
4. It follows therefore that there was a presumption of innocence; we cannot know if he ‘assaulted’ the paramedic in question even if we accept that he hit him or her.
5. Magistrates’ cannot be sacked.  They can only be dismissed if both houses of Parliament are satisfied there is proved misbehavior.  Misbehavior is not making decisions that are unpopular.  It is because the State is often before the Court that judges and magistrates promise to dispense justice without fear or favour.   They would be ‘in fear’ if they could be sacked if the government of the day didn’t like their decisions.  The upside is that you should be able to expect an impartial hearing even if you are being prosecuted, or sued by the State; the downside is if you get judges you don’t like, you’re stuck with them.
6. The clear error here, at least if the reports are correct, is that Her Honour dismissed the case without first hearing all the prosecution case.  A magistrate can, after hearing the Crown case find the accused Not Guilty but she should not do so if she hasn’t heard the whole case.  As noted she is meant to be impartial and blind, to do justice is to do justice for all the parties, including the prosecution.  To dismiss a case without hearing all the evidence would I imagine be an appealable error in which case the Supreme Court would have no problem ordering that the case go back before the Local Court.   If the prosecution appeal a superior court judge (unlike a Magistrate) will have to give full written reasons explaining what happened and why they make the decision they do.  These will be published online at a site like AustLII or NSW Case Law.
7. Paramedics may be interested to realise that there are specific offences of hindering or assaulting an ambulance officer set out in the Health Services Act 1997 (NSW) s 67J.  That section says:

67J Obstruction of and violence against ambulance officers

(1) A person must not intentionally obstruct or hinder an ambulance officer when the ambulance officer is providing or attempting to provide ambulance services to another person or persons.

Maximum penalty: 50 penalty units or imprisonment for 2 years, or both.

(2) A person must not, by an act of violence against an ambulance officer, intentionally obstruct or hinder the ambulance officer when the ambulance officer is providing or attempting to provide ambulance services to another person or persons.

Maximum penalty: Imprisonment for 5 years.

…
(4) In this section:
“ambulance officer” means a member of staff of the Ambulance Service of NSW.
“ambulance services” means the work of rendering first aid to, or transporting, sick and injured persons.

 

It is interesting to note that both subsections (1) and (2) say that a person must not do those things to an ambulance officer who is ‘attempting to provide ambulance services to another person or persons’.  The question will be to whom does the word ‘another’ apply to?  I would suggest that the reference to ‘another person’ mean a person other than the patient.  If that is correct then this man did not commit these offences as the ambulance officers were not attempting to treat ‘another person’.  These sections are designed to protect ambulance officers from bystander, not patient, initiated violence.

If the reference to another person was a person other than the ambulance officer, then that would have implications for a right of a person to refuse treatment.  Refusing treatment could be hindering an ambulance officer even though we are entitled to refuse treatment.  If the section was intended to apply when a patient assaulted an ambulance officer it could simply say “A person must not, by an act of violence against an ambulance officer, intentionally obstruct or hinder the ambulance officer.”

It is also interesting to note that the sections only apply to the staff of the Ambulance Service of NSW.  This would not extend to volunteers with St John Ambulance Australia and may not extend to officers from other jurisdictions who are assisting at a NSW disaster.

The legal lesson

The legal lesson from this is

1. We should be cautious not to rush to judgment on the issue of whether or not the accused is guilty of assault. That issue has not been tested.
2. If the Magistrate did dismiss the case without hearing the entire prosecution case we can expect, if the prosecution appeal, that the Supreme Court would send the matter back to the Local Court for a hearing according to law.  If there is an appeal we will get detailed written reasons that will give much greater insight into what happened both on the day of the alleged offence and in the local court.
3. Section 67J of the Health Services Act 1997 (NSW) may not do the job that many paramedics think it will.

Michael Eburn

I have written about the potential impact of the new laws on volunteers in the emergency services in the latest issue of the Australian Journal of Emergency Management.

Fear of volunteer liability is being horribly overstated.  The new Act does include volunteers in the definition of ‘worker’ so that organisations that use volunteers must now take the same steps that they would take to take care of the health and safety of volunteers.

The Act does not impose strict liability- that is it is NOT the case that if someone gets hurt, someone is guilty.  The primary obligation is the person or business conducting the undertaking so that is the organisation, not the individual.  The obligation is to do what is reasonable in all the circumstances to protect health and safety.

The Act sets out the factors to be considered when determining what is reasonable and it is consistent with traditional risk assessment, how likely is it that something will happen, how bad will it be, what steps are there to reduce any risk and are they practical taking into account the task to be achieved.   It may not be reasonable to ask an employee or volunteer to enter a burning building to see if there is anyone in there, but it may be if they are a volunteer fire fighter, trained to do so, equipped with PPE and supported by a sufficient number of colleagues.

The new Act does impose obligations upon volunteers.  They have to take reasonable care of their own safety and that of others.  They must also follow instructions in relation to safety.  That is not unreasonable.  We don’t want SES volunteers throwing damaged roof tiles to the ground onto people below – but the reality is that most volunteers do take reasonable care for their safety and that of others.  If they don’t in circumstances that are less than sheer stupidity, the liability is likely to fall to the organisation for providing a lack of training and for not creating a safety culture.

Volunteers have been subject to OHS laws in the ACT, NT and Queensland for some time and there are no cases of volunteers being prosecuted.  Such prosecutions are extremely unlikely.

Unfortunately the press appear to have decided scaring volunteers is good for ratings.  The stories that I have read bear little link with the reality of the situation.

For more guidance on the application of the law to volunteers, Safe Work Australia has published a number of guides which you can find here (thank you Greg, from WA for referring me to this page).

Michael Eburn