M. Eburn

Hold that thought – Australian Emergency Law is taking a break

In Uncategorized on September 11, 2016 at 6:32 pm

I’m going to be on leave until Mid-October.  During that time, I intend to be away from my phone and computer as much as possible!  So I won’t be responding to questions or approving comments.  Save your questions and thoughts and we can resume the conversation in October.  In the meantime, I hope not to meet you by accident, whilst I’m on the road!

Tradies as rescuers

In Rescue on September 11, 2016 at 5:36 pm

The operations manager of an organisation that provides an emergency trade response writes in response to my earlier post Paramedics forcing entry to premises (March 25, 2014).  My correspondent says:

… as a part of a business I run we deliver rapid response call outs to residential premises (Plumbing, Electrical and Locksmiths), we are often asked to attend a property where we may detect an issue with regards to the essential services to the property (Electricity or Gas) or a gas heater that is producing carbon monoxide and need to isolate supply to the property to ensure that the property is left in a safe state.

If we were to leave a detected gas leak or electrical hazard in an unsafe state and someone died as a result of this we would be open to criticism and potential litigation, so have an obligation as an appropriately qualified trade to exercise a duty of care.

However upon the attending trade communicating the risk to the owner of the property of what they have found there have been occasions that the owner of the property has told us to leave the property and has refused the right for us to isolate the problem, so we potentially are leaving the property unsafe and risking life and property.

Are you able to provide any insight as to what the obligations are of us as a trade representative in these occasions?  Do we have a right to remain on the property to preserve life or property essentially exempting us from Trespass, or do we follow the instructions of the owner of the property and leave, while leaving them in a potentially life threatening situation?

Would appreciate any information / guidance you could provide us on this occasion,

You would have a defence of course if you attended the home in response to a report of a gas leak and saw the householder unconscious on the floor so you tuned the gas off before breaking in to remove them but I don’t think that’s the issue you’re asking about.

The law of plumbing is not my field, so I don’t know what arrangements or expectations plumbers and electricians have with the supply authorities but I would not be surprised if there was some obligation to disconnect an unsafe service regardless of the householder’s wishes. With respect to identifying an unsafe installation but being denied permission to fix it, subject to anything in the relevant legislation or trade licenses, you would certainly have the right to contact others if you think the premises are unsafe.  The appropriate authority may be the supply authority, the council, or the emergency services eg the fire brigade if there is an obvious gas leak. The Fire Brigade would have the right to enter the premises and to ensure the gas is disconnected should that be necessary.

The issue is like with health and ambulance services.  A patient may well refuse treatment but that doesn’t mean that the paramedics don’t still have a duty to provide advice or maybe advise others (see Ambulance Service v Neal (January 29, 2009)).

However, given there will be specific rules relating to plumbing, electrical work and gas-fitting both in legislation and licensing standards, this answer can only be considered in the most general terms.

VICSES “Unit Controllers shall ensure that limited and moderate consumption of alcohol occurs …”

In OHS, SES on September 11, 2016 at 4:56 pm

Well not quite, but that is what the new 1.41 Provision and Consumption of Alcohol on VICSES Premises and Surrounds (Version 1.0) appears to say.  A correspondent from Victoria says (emphasis added):

Recently, VICSES management has amended their alcohol policy raising concerns among many Controllers. Apart from dissatisfaction at alcohol now being banned at SES units (especially country Units, where a relaxed beer after some ops might have been seen as reasonable), the specific clause they are concerned about reads:

“Unit Controllers shall ensure that limited and moderate consumption of alcohol occurs at Unit functions being conducted off site”.

This refers to functions such as Unit dinners etc. where alcohol is served. Members are concerned that the wording suggests Controllers should ensure (not advise or recommend) limits on members’ behaviour. Controllers are concerned that

  1. they are not given any training on how they should do this, or on what grounds they should do it;
  2. they are not trained in recognising what is limited or moderate or how they might determine who has exceeded the limit;
  3. they will be liable if a member has an accident (e.g. at the venue, on the way home etc.) and that person might hold them responsible if they had not ensured a limited consumption of alcohol

Would you have any advice on this? Will Controllers be liable for any claims arising from accidents or other matters (e.g. sexual harassment or bullying at the event)? How will they ensure particular levels of consumption for each and every attendee? Controllers feel the service is shifting workplace responsibility onto volunteers, are there insurance considerations for this?

First, no controllers will not be liable. They are acting in their capacity as unit controller’s of the SES.  As the policy says at 7.1 ‘Staff and volunteers members must at all times be aware they represent VICSES…’ any action by the unit controller to give effect to the policy is acting in their SES capacity.  In short if they fail in any duty, it is the SES that has failed and the SES that will be liable (see also Victoria State Emergency Service Act 2005 (Vic) s 42).

The Victoria SES does have duties to those that might be affected by those affected by its work which includes its members but also members of the public who might be affected by intoxicated SES members driving home from an official function where they have consumed too much alcohol (Occupational Health and Safety Act 2004 (Vic) s 23).   Implementing a policy such as this one may go further than is necessary but it is certainly open to VICSES to have a policy on the issue of consumption of alcohol on SES premises and SES endorsed activities and so this is within the area of their discretion.  Having developed a policy they have to give effect to it.  An organisation like the SES is organised hierarchically with unit controllers the front line of management, so it makes sense to place obligations upon unit controllers to take steps with respect to their unit premises and unit events.  So there is no doubt that this is placing responsibility on volunteers but that is always going to be the case.  Unit controllers have workplace responsibility to ensure that their unit operates safely, there is safe training and safe operational behaviour.     Victoria has not joined in the national Work Health and Safety scheme so the Victorian legislation may not impose legally enforceable duties on the volunteer controllers, but Victoria SES has to show that it has taken steps to ensure the safety of its volunteers and how else does it do that but, in part, putting some obligation upon unit controllers?  So yes this is placing ‘workplace responsibility onto volunteers’ but there’s nothing new or unusual in that.

If the SES does not arrange appropriate training, that is an issue that may go to the question of whether or not they have taken reasonable steps to ensure the health and safety of their volunteers, or others.     The reference to ‘limited or moderate’ amount is not the same as saying that people must not exceed a ‘limit’ whether that limit is a number of drinks per hour, or a blood alcohol concentration.   As for the grounds upon which a unit controller can try to limit a person’s consumption, the policy is the ‘grounds’ and to give effect to it I suppose a unit controller could brief members before an event and, during a event, tap a person on the shoulder and say ‘I think you’ve had enough’.   But if VICSES expect more than asking for training is not unreasonable.

Would the SES or a member be liable?  The SES could be liable if for example a failure of training meant the unit controller could not exercise the authority the SES wants them to and this represented a failure by the SES to take appropriate care.  As for the controller, putting aside that it would be the SES who would be liable.  Assuming that the function is being held on licensed premises, the controller is not actually serving the alcohol and the licensee has obligations to limit the amount of alcohol served and to otherwise comply with policies on the ‘responsible service of alcohol’.  And the member also has responsibility for his or her own conduct.

As for the question of liability for sexual harassment or bullying at the event the issues will be the same as for sexual harassment or bullying at the unit.  Of course a unit controller has some responsibility, by virtue of his or her appointment, to manage the unit and to take steps to ensure that such things don’t happen and if they do, to take action with respect to them. I have no doubt VICSES has policies on those matters but they do not appear to be available on the web.   So the situation is no different here.  The unit controller has some responsibilities but if there is a failure, provided everything was done ‘in good faith’ (ie not maliciously and not ‘I don’t need to try to apply this policy because it’s not my problem’) then the responsibiliy lies with the SES.