M. Eburn

Sharing responsibility for injuries on the school sportsground

In Ambulance, Negligence on May 24, 2015 at 5:58 pm

This question comes from a private provider of first aid services. He says:

An employed first aider was working solo at a local private school sport day in NSW. One of the visiting schools brought their own physiotherapist to help look after their boys. On two occasions when visiting boys were injured the visiting physio refused to allow the first aider to treat the injured boys even though the “mechanism of injury” (bashing heads or heads/other body parts) was consistent with a high likelihood of concussion. On one occasion a boy had been unconscious which according to Australian Rugby Union guidelines required “medical advice” and possibly a hospital visit. On the other occasion the boy was unsure if he had been unconscious but it appeared to observers that he had before the first aider was on the scene. Other parents and a doctor who was a bystander attempted to intervene to allow the first aider to treat one of the injured boys but were refused by the visiting physio.

My questions are:

  1. Who has responsibility for the welfare of boys from visiting schools if they are injured on the grounds of the “home” school?

  2. Does the presence of a physiotherapist from a visiting school release the home school and the first aider from any obligations or duty of care to the visiting students?

  3. Is the home school or first aider exposed to litigation if they are aware of what they believe to be treatment that contravenes the concussion guidelines particularly if this leads to further injury or litigation by the child or his parents?

As I’ve noted before what is written here is written for the general information of the emergency services community and cannot be relied upon as specific legal advice. The discussion will be in general terms only and assumes that the story as I’ve been given it is correct. No doubt if legal proceedings did follow different people would have different versions of the events. With that limitation in mind –

We have probably all heard that a school stands ‘in loco parentis’ vis-à-vis its students. (‘In loco parentis’ is defined as ‘in the place of a parent’ by Merriam-Webster online, http://www.merriam-webster.com/dictionary/in%20loco%20parentis).   In Commonwealth v Introvigne (1982) 150 CLR 258, Murphy J said ‘The notion that a school teacher is in loco parentis does not fully state the legal responsibility of a school, which in many respects goes beyond that of a parent’.   Even if a school owes a duty to a child that a parent does not, he did not doubt the basic premises that the school has the care of a child in the place of the parent. (See also Ramsay v Larsen (1964) 111 CLR 16 and New South Wales v Lepore (2003) 212 CLR 511).

A school stands ‘in loco parentis’ to the students enrolled at the school, not all students. In this context it means that the ‘visiting’ school had the parental responsibility for its children, which it must exercise via its staff. In this case I assume the ‘staff’ included the physiotherapist but it really makes no difference if the physio was employed or a volunteer – perhaps a parent of one of the boys etc. If the school entrusted him ‘to help look after their boys’ he was exercising the school’s obligations in loco parentis.

The way to look at this scenario, then, is to ask what is the duty of the first aid provider if a parent refuses to consent to treatment. Put in that context the answers are not difficult.

  1. Who has responsibility for the welfare of boys from visiting schools if they are injured on the grounds of the “home” school?

It’s not an all or nothing issue. Both schools have ‘responsibility for the welfare of boys from visiting schools’ but it’s not ‘joint and several’ that is they are not both responsible for everything. The schools are responsible for that which they provide – the home school has responsibility for example of ensuring the grounds are safe and maintained so if the visitor was injured because of a hole in the football oval, or because the toilets collapsed, that would be the responsibility of the ‘home’ school.   If the first aider was allowed to treat the ‘visitor’ but did so negligently then responsibility might be shared between the home school and the first aid company depending on all the circumstances. The visiting school on the other hand is responsible, along with the parents, for ensuring that its students are fit to play, have proper kit, perhaps don’t trash the ‘home’ schools facilities.

The answer is then that both have responsibility for the welfare of boys from visiting schools but exactly what part of their welfare they are responsible for will depend on all the facts including agreements between the schools as to who will provide what.

  1. Does the presence of a physiotherapist from a visiting school release the home school and the first aider from any obligations or duty of care to the visiting students?

No, but the refusal of consent may. Let us assume that it is agreed that the ‘home’ school will ensure that there are first aid services provided and they meet that obligation by contracting with my correspondent.   They are indeed providing a service, but they cannot insist that others use that service. As we know people can refuse consent to first aid services and where children are involved, it is their parent who may refuse. Here the ‘visiting’ school is in the place of the parent so they, via their staff, can refuse consent. The ‘home’ school has acted reasonably and in accordance with the (assumed) agreement by ensuring that the service is there. What more can they do?

Even if a patient refuses consent that does not necessarily mean there is no obligation upon the first aiders, again it’s not ‘all or nothing’. A reasonable first aider might stress ‘I really think they need to go to hospital, look out for these symptoms … If they get worse ring triple zero’.   Or they might, in this context, go past the physio and find a teacher from the visiting school. At the end of the day whether or not there is a duty to do any more and what might be done would depend on all the facts.

What you can’t say is that the refusal relieves the ‘home’ school, or its first aid provider from ‘any obligations or duty of care’ but it does limit what they can do. If they can’t examine or treat the person is there anything else they could or should reasonably do? If not then that’s the end of the matter.

  1. Is the home school or first aider exposed to litigation if they are aware of what they believe to be treatment that contravenes the concussion guidelines particularly if this leads to further injury or litigation by the child or his parents?

I’ll come back to ‘exposed to litigation’; what one really means is ‘will they be liable’. The answer is ‘no’.   The ‘home’ school and their first aid provider has an obligation to act reasonably, not to rescue everyone from harm.   They don’t ‘own’ the patient (see ‘Step aside – I’m a doctor’ (October 17, 2014)) and can only do what they can do.

Because the ‘visiting school’ is in locos parentis any failure in the care, described, would be the responsibility of the visiting school. In NSW v Lepore (2003) 212 CLR 511 Gummow and Hayne JJ said (at [306]):

The parents or guardians will have entrusted the children to the school, acting in loco parentis, on the assumption that they will be cared for, not abused. The common law does not usually disappoint legitimate and reasonable expectations in such matters.

That case was deciding whether a school was liable for the sexual assault of its student by a teacher, a case far removed from this one – here the issue is ‘care’, not ‘abuse’ – but the principle remains. If the child was injured because the physio, or any staff member, administered inappropriate treatment and/or refused to allow better qualified persons to render appropriate care, the liability will belong to that school, not the ‘home’ school.

Now what of exposure to litigation? Litigation is a dispute resolution process. Anyone can be exposed to litigation if one party thinks they have been wronged by another. The plaintiff’s case may fail but that does not mean they have not been exposed to litigation. In Lowns v Woods (1996) Aust Torts Reports 81-376 Dr Lowns was sued over his failure to attend an emergency when asked to do so. His defence was always that it never happened, he was never asked.   We’ll never know the truth but the trial judge, considering all the evidence, preferred the evidence to the little girl who said she knocked on the doctor’s door and he was found liable to the tune of $3million. Assume the judge found that he was telling the truth and he was found not liable; he would still have been exposed to litigation for something that didn’t happen. So can the ‘home school’ be exposed to litigation? Well they could be just as they could be if the visiting school’s bus crashed on the way home. It’s unlikely, but nothing’s impossible.

Another reason why it is unlikely a case like this would lead to litigation.

There is another reason why a case like this won’t go to court.   It would be very difficult to prove negligence here, certainly against the ‘home’ school, but why would one bother. As a school child engaged in school arranged sports, the child will be entitled to compensation under the Sporting Injuries Insurance Act 1978 (NSW) so would be better off seeking any remedy there. They might only sue if they are rendered seriously and permanently disabled but then they would have a problem showing it was the care they received, rather than the injury on the football field, that was the cause of their ongoing disability.

Conclusion

In conclusion the ‘home’ school and their first aid provider owe a duty of care to students from the visiting school, but it is not a duty to guarantee their safety, it is a duty to act reasonably in providing their contribution to the joint sporting activity. The ‘visiting school’, through its staff, stand in locos parentis vis-à-vis their students and like a parent can refuse care from the ‘home’ school’s provider. That does not mean there is no obligation upon the first aid provider, eg to try and stress the seriousness of the matter or to recommend ongoing care. What is reasonable has to be judged in all the circumstances.

In the circumstances described I don’t foresee any legal risk for the ‘home’ school. Any plaintiff has to show what more the defendant could have done and what more could the ‘home’ school have done here? If the child was seriously injured any action would be directed to the ‘visiting’ school as its obligation to care for its students is clear and stringent.

Pre-sale disclosure of bushfire risk in WA

In Fire, Legislation and plans on May 23, 2015 at 7:41 pm

This question comes from a volunteer bush fire fighter in the Margaret River region of Western Australia. My correspondent says:

The Community Engagement department of our state fire agency encourages us to promote bush fire awareness to community members; as per “Prepare, Act, Survive”, this starts with “risk is your own responsibility and you shouldn’t rely on fire fighters for help”. This is alien to people from overseas and metro areas whose city landscapes were made fire-resistant generations ago, and who expect professional fire departments to deal with fires.

One obvious issue is that we can only “engage” after people have relocated, and it may then be physically, financially or, perhaps, legally impossible for them to achieve appropriate safety for themselves – we have estates of vulnerable elderly retirees and young fly-in, fly-out families in highly flammable bush blocks. In our land of “a fair go” and in an age where Consumer Protection is fairly advanced, it seems anomalous that no warning is given on advertisements promoting family homes in high-risk bush locations.

Does the U.S.A do any better?

Note: I did try, unsuccessfully, to interest the ACCC in this  – quoting Bushfire CRC research,:

“..in many peri-urban places around Australia the growing mix of people and property with bushland creates the potential for disaster..”  “..The results demonstrated that people have a heavy reliance on the Rural Fire Brigade to protect people and property during bush fire (93%). Those who may rely more heavily than others include those with an urban background, newcomers (<10 years),….” (FIRE NOTE, Bushfire CRC, Issue 9, November 2006, emphasis added).

The only specific question here is ‘Does the U.S.A do any better?’ and that I can’t answer but I’ll make general comments.

First the ACCC is in effect the ‘guardian’ of the Australian Consumer Law and the Competition and Consumer Act 2010 (Cth) (which replaced the Trade Practices Act 1974 (Cth)).   As might be inferred by the name of the Act, the ACCC is concerned with competition and anti-competitive practices, and consumer rights and protection.   The issues raised by my correspondent do not relate to ‘competition’ but ‘consumer protection’.

For the purposes of the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law (which is Schedule 2 of the Act) a consumer is a person who buys goods and services for less than the prescribed amount (currently $40 000). Land (or a house) is neither a ‘good’ (s 95A, definition of ‘goods’) and is likely to cost more than $40 000 so the sale and otherwise of land is not governed by the Act.   It stands to reason that the ACCC are not interested in the matter; it is outside their area of authority or concern.

What then of others and who should issue a warning? In the absence of legislation we’ve all heard of the rule ‘caveat emptor’ – buyer beware. Depending on the jurisdiction a vendor has to make information about the property to the buyer (see http://advice.realestateview.com.au/buying/ultimate-first-home-buyers-guide/13/) but there is no compulsory disclosure in WA (see https://www.commerce.wa.gov.au/sites/default/files/atoms/files/salebyofferandacceptance.pdf).

When buying a house a purchaser should (but doesn’t have to) make inquiries of the local authorities.  It is up to the prospective buyer to make their own enquiries when buying land to determine whether or not ‘factors affecting use and enjoyment of land’ have been recorded on the title (Transfer Of Land Act 1893 (WA) s 70A) and whether or not the property is in a designated bushfire prone area. It is also up to them to decide what they do with that information and if they seek advice on what they can do to reduce the risk of being impacted by bushfire. If they fail to do that, that is their own lookout.

There have been calls to increase the level of warning information given to households but equally it has been reported that there is some fear of liability for disclosing risk information. It is my view that fear is unfounded and I discuss that in some detail in a paper I wrote with John Handmer or RMIT – ‘Legal Issues and Information on Natural Hazards’ (2012) 17 Local Government Law Journal, 19-26.

Even if there is no legal liability there are political realities and so councils or state governments may face community backlash if they start giving stark warnings to potential buyers of fire risk or impose an obligation upon vendors to do so.   And let us remember that even in fire prone areas, the risk of your home being consumed by bushfires remains small.   I recently supervised a student who wrote a paper on why insurers don’t take a more active stance in encouraging people to take steps to prepare their property for bushfire. He found

Preliminary analysis of statistical data on natural disasters shows that from 1967 to 2010, fire has only accounted for approximately 8 per cent of total losses when normalised to 2011-dollar values.

McAneney, Chen and Pitman calculate that:

… the average annual probability of a random home on the urban–bushland interface being destroyed by a bushfire to be of the order of 1 in 6500, a factor 6.5 times lower than the ignition probability of a structural house fire. Thus on average and if this risk was perceived rationally, the incentive for individual homeowners to mitigate and reduce the bushfire danger even further is low. (http://www.bushfirecrc.com/sites/default/files/managed/resource/mcaneney-et-al-2009.pdf)

Governments have an interest in improving public safety but steps to do so, including requiring people or agencies to add a ‘warning … on advertisements promoting family homes in high-risk bush locations’ is not cost free. Governments would have to impose the obligation and then enforce it with no doubt political backlash; and given the real risk is it worth the grief? That is a political and not a legal question.

Conclusion

It’s not for me to say whether such warnings should be required, but I can say that under current law there is no obligation for warnings to be given when advertising a house for sale. Such a warning is not required by the Competition and Consumer Act 2010 (Cth), the common law or the Transfer Of Land Act 1893 (WA).

A hairy issue for Queensland firefighters

In Fire, OHS on May 21, 2015 at 1:56 pm

A Queensland firefighter has written about a matter that (despite my poor attempt at emulating a tabloid sub-editor) is a matter of real concern for many.  I’m told that there is:

A story in Queensland [that] has prompted a significant amount of debate and discussion on social media sites. The story is here:

http://www.chinchillanews.com.au/news/ken-takes-ultimatum-on-chin/2637886/

An auxiliary firefighter (same as retained in NSW) refused to shave his goatee beard and was given a couple of options – shave it and stay, move to non operational duties, or leave. He chose to leave. Problem is, he has been a fireman for 18 years and has never been disciplined for having facial hair. It’s only been recently that someone in the hierarchy has pursued and implemented the relevant uniform code. The uniform code for QFES firefighters is also very clear and is a requirement that firefighters adhere to this code when they sign on the dotted line. It’s in the application pack.

Now my understanding of the AS/NZ standard for breathing apparatus is that a person ‘should’ be shaved, not ‘must’. Should being a recommendation, must being a requirement. I know of military and mining industry folk who wear full beards and have adequate protection when wearing positive pressure breathing apparatus. That I have no qualms about.

My question in relation to facial hair stems from a hypothetical. The QFES has implemented negative pressure masks for permanent and auxiliary firefighters to wear at grass fires. To wear a NP mask, you need to be clean shaven and do a ‘face fit test’ annually. There is talk that these masks will then filter down to the rural firefighters. As you are probably aware, there are some significant and magnificent beards amongst the rural firefighting fraternity! Which leads to my question:

If the QFES/RFSQ (Queensland Fire and Emergency Services/Rural Fire Service Queensland) introduce negative pressure masks for rural firefighters, and the rurals refuse to shave beards/wear NP masks, can they stay on the fireground? What happens if medical complications arise in the future because they didn’t wear supplied PPE? Will the ‘we’ve always done it this way’ argument affect fireground managers and potentially reduce the volunteer workforce?

For a related post, see ‘The use of breathing apparatus at car fires – NSW RFS’ (February 17, 2015).

This issue is all about work health and safety.  The Work Health and Safety Act 2011 (Qld) says that a PCBU (a person conducting a business or undertaking) ‘must ensure, so far as is reasonably practicable, the health and safety of— (a) workers …’ (s 19(1)).   We know that the term ‘worker’ includes a volunteer (s 7) so it does not matter, in this context, whether the fire fighters are full time, auxiliary or volunteer.

The issue is what is ‘reasonably practicable’?   Section 18 tells us that:

… reasonably practicable… means that which is … 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.

I assume the relevant risk is the inhalation of chemicals and gases that are not good for firefighter health.  What is the likelihood of that occurring?  I imagine it’s almost 100% but I suppose it may be less in a grass fire than a structural or car fire where there are all sorts of plastics and petro-chemicals to be burned.   How much harm is likely to happen?  Again I can’t say but let me also assume that the harm is ‘less in a grass fire than a structural or car fire where there are all sorts of plastics and petro-chemicals to be burned’.  I think a fire service, whether it’s the rural fire brigades or the QFES (given they are all under the same central administration; see ‘Status of Queensland Rural Fire Brigades’ (September 10, 2014) and ‘Passage of the Public Safety Business Agency Bill 2014 (Qld)’ (May 8, 2014)) should have pretty good knowledge about the risks that firefighters face when fighting fires (see Bushfire CRC ‘Operational Readiness Of Rural Firefighters Air Toxics’ [sic]).

Paragraphs (d) and (e) raise the relevant issues.  Presumably availability of ways to eliminate or minimise the risk changes over time with better science, innovation and changing costs of PPE.  In the history of rural fire fighting, when brigades were local groups turning out in cotton overalls with a beater and spray pack, there was probably no such thing as effective and affordable respiratory protection.  In 2015 I assume that ‘negative pressure masks’ are reasonably cheap and effective, hence the decision to require their use by auxiliary and permanent fire fighters.  So let us assume they are available and suitable.  Then, and only then, can the PCBU consider the cost.   I would suggest that cost is not limited to just money but the cost to the whole mission.    Things may cost by not allowing people to do their job in a timely manner or in the case by discouraging volunteers.  Losing a firefighter with 18 years’ experience is no doubt a cost.

That’s not however the answer, that’s just me going through the issues raised by the legislation.  I’m not the decision maker here; at first instance the PCBU has to think about those things.  If it is determined that the risk is high, the harm that might be suffered is great, the mask is available and suitable and taking into account all the costs, that the cost is not grossly disproportionate to the risk, then the PCBU should require that the masks are worn by volunteers at grass fires.

In coming to a conclusion about each of the factors listed and in particular (e), ie the costs and in deciding what changes to the workplace are required, the PCBU is required to consult with the workers (including volunteers) (Work Health and Safety Act 2011 (Qld) s 47).    As part of that consultation process ‘workers be given a reasonable opportunity— (i) to express their views…; and (ii) to contribute to the decision-making process’ (s 48(1)(b)).   It follows that volunteer fire fighters should be given a chance to do that, to express their views on the use of these masks and to contribute to the process by which the PCBU determines whether or not to require their use at grass fires.

Apart from asking for those views, the PCBU must ensure ‘that the views of workers are taken into account…’ (s 48(1)(c)).  But being given the chance to participate in the decision making process and having one’s views considered does not mean that the PCBU will make a decision that is in accord with those views.    For example the volunteer fire fighters may well express the view that they don’t want to shave their beard, and that the risk is not too great and the cost is too high.  The PCBU has to consider that but may still determine that the science and the manufacturer’s recommendations mean that, all things considered, the use of the negative pressure masks is to be mandated.

Once the decision is made it is the duty of everyone, including volunteers, to ‘(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’ (s 28).  That is if the WHS policy directive is that negative pressure masks are to be worn, then a worker fails to meet his or her WHS obligations if they refuse to comply with that policy direction.  One would also expect senior officers to direct the person not to enter an area of danger if they are not wearing the PPE as one would also expect them to do if a firefighter turned out in shorts or thongs.

What happens if medical complications arise in the future because they didn’t wear supplied PPE?  Firefighters are entitled to compensation if they are injured in the course of their duties and there is a move to have presumptive legislation to the effect that certain cancers will be deemed to have been caused by fire fighting (see ‘Landmark legislation to protect [Queensland] firefighters’ (December 11, 2014)).  These schemes are all ‘no fault’ so if a fire fighter is injured due to their failure to wear the PPE they would still get medical care and compensation.

The consequence of failing to comply with a WHS duty is not a loss of compensation rights, but it is a criminal offence.   A volunteer is only required to meet the duties set out in ss 28 and 29 (see s 34).  The obligation to comply with a WHS policy is a duty in s 28 so a volunteer who fails to ‘co-operate with any reasonable policy or procedure’ or ‘comply … with any reasonable instruction’ could be prosecuted.    Failure to comply with a health and safety duty in circumstances that exposes ‘an individual to a risk of … serious injury or illness’ is a category 2 offence (s 32). (It does not matter that the individual being ‘exposed’ is also the individual who is failing to comply with his or her duty).   If there is failure to comply with a duty but no ‘risk of death or serious injury or illness’ then it is a category 3 offence (s 33).  For an individual the maximum penalty for a category 2 offence is a fine of $170 775 and for a category 1 offence it’s a fine of $56,925 (Work Health and Safety Act 2011 (Qld) ss 32 and 33; Penalties and Sentences Regulation 2005 (Qld) cl 2B).

Of course no-one is going to be prosecuted and fine that amount for not wearing a face mask. One would expect many steps before then starting with counselling from senior officers to explain the policy and reasoning behind it; offers of work that does not involve being an active fire fighter; perhaps a direction from a relevant work health and safety inspector etc.  All steps long before anyone decided to commence a prosecution; but the option is there.

Finally “Will the ‘we’ve always done it this way’ argument affect fireground managers and potentially reduce the volunteer workforce?”  That I can’t say. That is not a question for a lawyer but for fire fighters.  Clearly it affected the fire fighter the subject of the initial story who resigned.  Will others take the same course? I don’t know.

Conclusion

The critical question I was asked was ‘If the QFES/RFSQ (Queensland Fire and Emergency Services/Rural Fire Service Queensland) introduce negative pressure masks for rural firefighters, and the rurals refuse to shave beards/wear NP masks, can they stay on the fireground?’

The answer is that

  • if the QFES/RFSQ determine that wearing these masks is a reasonable response to a risk to health and safety, taking into account all the factors listed in the Work Health and Safety Act 2011 (Qld) and having consulted with the workforce; and
  • if, after considering all those matters, they determine that the use of the masks is to be mandatory, just like wearing boots and other PPE; and
  • if they determine as a matter of policy that a firefighter who is not wearing the mask is not to be on the fireground ror is not to turn out then:

A firefighter who refuses to shave his beard or wear the mask could be directed or required to leave the fireground (Fire and Emergency Services Act 1990 (Qld) ss 53 and 83).

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