M. Eburn

Who legally owns RFS vehicles?

In Driving and Road Rules, Fire on August 31, 2016 at 5:55 pm

A NSW RFS volunteer has

… a question regarding who legally owns vehicles that are purchased by NSW RFS Volunteer Brigades, with funds raised from public donations?

I’ve asked senior staff of the NSW RFS this very question and have received conflicting answers.

A legal person can sue and be sued and can enter a contract.   Only a legal person can ‘own’ something.  A legal person is a natural person (you and I) or a corporate entity.  A corporation may be a company or it may be a government or an organization created by an Act of Parliament.

The Rural Fire Service Act 1997 (NSW) establishes the Rural Fire Service (s 8).   The Act also provides for the creation of brigades by a local authority (s 15; though local authorities have delegated that authority to the Commissioner (RFS Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades).  The RFS Act does not say that fire brigades, or the RFS, are legal entities – see also How autonomous are NSW Rural Fire Brigades? (February 25, 2015).

Compare the RFS position to, for example, the ‘Health Administration Corporation’.  That corporation is established by the Health Administration Act 1982 (NSW) to provide a legal entity for the delivery of health services.  The Act provides that the Corporation ‘may take proceedings, and be proceeded against in its corporate name’ (s 9).

So if a brigade is not a legal entity, and the RFS is not a legal entity, who does own the RFS assets?  The Government Sector Employment Act 2013 (NSW) defines the public service, departments, public service executive agencies and separate public service agencies. The Office of the NSW Rural Fire Service is an executive agency related to, or part of, the Department of Justice (Government Sector Employment Act 2013 (NSW) s 22 and Part 2 of Schedule 1).  The Crown Proceedings Act 1988 (NSW) says that the ‘Crown’ can sue (s 4) and be sued (s 5).  The Crown includes ‘the Government of NSW’ as well as ‘a statutory corporation, or other body, representing the Crown in right of New South Wales’ (s 3). (See also the Rural Fires Act 1997 (NSW) s 12(5) which says (emphasis added) that:

The Commissioner (on behalf of the Crown) may make or enter into contracts or arrangements with any person for the carrying out of works or the performance of services or the supply of goods or materials in connection with the exercise of the functions of the Service’.)

The relevant legal entity is, therefore, not the Rural Fire Service, it is the Crown in Right of NSW.  That the relevant legal entity is ‘NSW’ is why legal actions against the RFS are described as being a case against ‘NSW’ – see for example the legal action arising out of the 2003 Canberra fires: Electro Optic Systems Pty Ltd v State of New South Wales; West and Anor v State of New South Wales [2014] ACTCA 45.

Conclusion

So ‘who legally owns vehicles that are purchased by NSW RFS Volunteer Brigades’, with funds raised from public donations?’

It can’t be the brigade as the brigade does not have a separate legal existence, a brigade is a part of the RFS.  It can’t be the RFS as the RFS does not have a separate legal existence, it is an executive agency and part of the Crown in Right of New South Wales.  The answer, therefore, is that the assets of a brigade, including ‘vehicles that are purchased by NSW RFS Volunteer Brigades, with funds raised from public donations’ are owned by the State of New South Wales.

 

 

In Brisbane for AFAC2016

In Uncategorized on August 30, 2016 at 2:14 pm

Australian Emergency Law (Michael Eburn) is in Brisbane for the annual Bushfire and Natural Hazards CRC/Australian Fire and Emergency Services Authorities Council (AFAC) Conference. Looking forward to three days of learning and presenting at 11:30am on Thursday. Any followers of this blog who are at the conference should say hello!

Lawsuit over fatal Ambulance Victoria helicopter accident

In Ambulance, Negligence, Rescue on August 29, 2016 at 9:33 am

Victoria’s Herald Sun newspaper is reporting on a legal action against Ambulance Victoria following the death of a man who was being winched into a helicopter after he ‘lost his footing and broke his ankle while walking in dense bush’ – see Peter Mickelburough, ‘Death fall lawsuit: Ambulance Victoria ‘failed’ in rescue after hunting mishap near Lake EildonHerald Sun (Online) August 28, 2016 (and thank you Luke, for bringing the story to my attention).

Herald Sun stories are behind a paywall so readers may not be able to see it and I can’t reproduce the whole story here – the gist of it is however that the deceased man’s widow is suing AV in negligence over the rescue operation.  She says ‘Ambulance Victoria failed in its duty of care to winch and treat her husband with reasonable skill, care and diligence’ when they used a rescue ‘strop’ that could cause injury by compressing a patient’s chest. As the deceased ‘reached the helicopter, he became “limp and unresponsive” and was “making no apparent attempt to hold on” as he slipped from the strop.’  He fell some 30 metres to his death.

The Australian Transport Safety Bureau (the ATSB) conducted an investigation into the matter (you can read their report, online).

The ATSB found that, due to the compressive nature of the rescue strop around the patient’s chest, combined with the patient’s weight and pre-existing medical conditions, the patient probably lost consciousness during the winch operation. While the rescue strop was serviceable at the time, it was not suitable for the patient and contributed to them falling from the strop following their loss of consciousness.

The ATSB also identified that the operator and Air Ambulance Victoria had limited documented guidance to assist rescue personnel select the most appropriate winching rescue equipment.

I would not consider this a controversial law suit. This is not a case where paramedics are being sued for not achieving a good outcome even though they administered proper treatment nor being sued for not following all the protocols because of the particular danger of the situation (which is not to say those cases happen, but they would be controversial if they did and they are the sort of cases paramedics appear to worry about).  Further, and as one would expect it’s not the paramedics being sued at all, it’s Ambulance Victoria and it’s over the use and choice of equipment, in this case the rescue strop.

In the context of the emergency services, ambulance services do owe a duty of care to their patients, in fact such a duty would be axiomatic, it would be hard to find a closer relationship where the conduct of the defendant (ambulance) would affect a foreseeable person (the patient) and therefore there is a need to act with ‘reasonable care’ (see also Kent v Griffiths [2001] QB 36). In the context of the emergency services it has been said that the fire brigades do not owe a duty of care to individuals other than a duty not to make the situation worse (Capital and Counties v Hampshire Council [1997] QB 2004).  Even if that were the rule here, the plaintiff may well argue that her husband, given his injury was a fractured ankle, would in fact been better off if Ambulance Victoria had never appeared on the scene!

It would be my view, given that I have very limited information about the matter, that the plaintiff would have little difficult establishing that ambulance Victoria owed her husband the relevant duty of care.  The issue, should the case go to trial rather than settle out of court, would be whether or not there was negligence.

It will no doubt be open for Ambulance Victoria’s insurers to argue that the choice of the strop was ‘reasonable’ in the circumstances and given the state of knowledge at the time.  Following its investigation,

The ATSB advises helicopter emergency medical service and other operators carrying out winching operations to note the circumstances of this accident and consider the implications for their operations of the risk of patients or other persons being winched slipping out of a rescue/retrieval strop. In this context the size, weight and medical condition of the person(s) being winched may indicate that other recovery options offer reduced risk.

Before this accident, ‘the circumstances of this accident’ were not something Ambulance Victoria or any other operator could ‘note’ or consider.  If it was this accident that revealed the problems with this piece of equipment such that it would be negligent to keep using the equipment now, it does not follow that the use of the equipment was negligent at the time of this accident. An argument along those lines would require relevant expert evidence as to the industry’s state of knowledge, and what should have been known, at the time.  Such an argument would be akin to the argument in Ambulance Service of NSW v Worley [2006] NSWCA 102 where the issue was the use of adrenaline IV. The adverse outcome for Mr Neal was part of the evidence that brought about a change to IM administration, but it was not negligent to administer adrenaline IV to Mr Neal because, at the time, the evidence of the best route was inconclusive.

Any other defence would depend on claims and evidence that, given I’m relying on a newspaper report, I am not aware of.

What I think is unfortunate is the plaintiff’s lawyer saying “The Davis family hopes lessons can be learned from Robert’s untimely death to prevent any other family having to endure such grief,”’  If there are lessons to be learned they’ve no doubt been identified by the ATSB which has issued appropriate safety warnings to helicopter operators.   Lawyers make these claims to paint their client in a light that is favourable to the media and the public.  That this is required is also a tragedy.  Mrs Davis has no doubt suffered terrible, inconsolable losses and my sympathy goes to her.   If those losses were caused by the negligence of Ambulance Victoria she is entitled to the remedies that the law provides, inadequate as they will be.  There should be no need to apologise for that.  But if she thinks, or her lawyers have advised her, that the motivation for litigation is to identify lessons ‘to prevent any other family having to endure such grief’ then they are, in my view, likely to be disappointed.  Remember too that most cases settle out of court and if they do there are no admissions and no identified lessons (see also Settlement in Black Saturday litigation is approved (December 23, 2014)).

Finally let me acknowledge and remember the tragic outcome here that this theoretical and analytical post can hide.  A man suffered an injury and looked to Ambulance Victoria for assistance. He fell to his death, his widow has lost her husband with all the emotional hurt that brings.  The financial losses, which are all a court can compensate, will pale when compared to that loss, but money is the only remedy a court can give and if the facts and the law say she’s entitled to money compensation that will be paid.   Let us not forget, too, the other victims of this event, the paramedics and pilots involved who set out to provide care and comfort but who witnessed this man’s death and now have to live with those consequences.

 

 

 

 

 

 

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