Three firefighters who acted as incident controllers during a fire in 2007 have been charged with manslaughter over the death of four firefighters.

See Three brigade bosses to be charged with manslaughter over deaths of four fire fighters in warehouse blaze (1 March 2011) and

Atherstone fire charges could be dropped (28 November 2011).

Unfortunately neither of these reports (or the many others that can be found using a Google search) reveal the details of what it is alleged that the controllers did, or didn’t do, and how that constitutes gross negligence.  As noted in the second story submissions are being made to have the charges dropped.  If that occurs we may never know exactly what the allegations were.

Under Australian law, manslaughter by criminal negligence requires conduct that is so far below the standard of the reasonable person it justifies criminal punishment.  It is up to a jury to determine whether conduct meets that description that is whether they think a defendant was not just negligent but so grossly negligent that they should be punished.   Proof of the case must be ‘beyond reasonable doubt’.

There is some suggestion that these firefighters may have been charged with offences under the  Corporate Manslaughter and Corporate Homicide Act 2007 (UK) but that does not appear possible.  That Act says:

An organisation … is guilty of an offence if the way in which its activities are managed or organised–

(a) causes a person´s death, and

(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

There are no provisions in this Act to prosecute individuals.

The other suggested source of the offence is a breach of the Health and Safety at Work Act 1974 (UK) s 2.  That Act says ‘It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.’  Where the breach is sufficiently gross it could form the basis of an allegation of manslaughter by criminal or gross negligence.

In short the stories don’t actually give enough detail to understand exactly what the charge is, or what circumstances, acts or omissions are said to have been so criminal as to warrant punishment.

Corporate manslaughter has been adopted in the Australian Capital Territory.  In this jurisdiction

A senior officer of an employer commits an offence if—

(a)     a worker of the employer—

(i)     dies in the course of employment by, or providing services to, or in relation to, the employer; or

(ii)     is injured in the course of employment by, or providing services to, or in relation to, the employer and later dies; and

(b)     the senior officer’s conduct causes the death of the worker; and

(c)     the senior officer is—

(i)     reckless about causing serious harm to the worker, or any other worker of the employer, by the conduct; or

(ii)     negligent about causing the death of the worker, or any other worker of the employer, by the conduct.

Maximum penalty: 2 000 penalty units, imprisonment for 20 years or both.

‘reckless’ means that the defendant realised that his or her actions may cause the prohibited outcome (death or injury) but did it anyway.

‘negligence’ means conduct falling below the standard of the ‘reasonable person’ in the circumstances but to justify criminal prosecution it must be gross negligence not simply civil negligence that can support a claim for damages.

If this were the relevant law the issue would be what was the cause of death, the decisions of the incident controllers or the fire?  And whatever decisision the controller made did they realise that the possible consequence of their decision would be death or were they grossly negligent in making the decision they did?  Of course every fire incident controller knows that death is possible when responding to a fire (it may be that firefighters are killed in a car accident on the way to the fire) so that can’t be the test.  It’s whether they realised that their action, their decision eg sending a firefighter into a fire without BA  when BA is called for, could lead to the firefighters’ death – not just that they may die.   As far as I can tell, no-one has been prosecuted under the ACT law.

These issues are of course very complex.  Firefighters don’t deserve to die at work any more than any one else, we expect that fire brigades and senior officers will take care of their personnel and not send them unnecessarily into harms way – but as a community we demand a lot from our firefighters as they do from themselves and there is always a temptation to ‘go in’ to save someone even though that necessarily and unavoidably exposes firefighters and rescuers to a risk of harm.   Deciding where the balance lies between acceptable and unacceptable risk will always be difficult in fast moving situations.    Prosecutions are rare so we will need to keep an eye on this to see if the case continues and if it does, exactly what the allegations are.

Michael Eburn