A NSW volunteer firefighter has written to me with this question: ‘The new OHS laws as of 1/1/12 classify us “workers” and as such become liable in the case of accident. Put simply: The scenario: Responding to a fire I am rolling a hose of the truck, I trip and the jet hits a person in the face and blows out an eye. Can I be held liable in any way, and subject to the very stiff penalties of up to $300,000?”
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  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
5 February 2012