The Canberra Times has another piece on emergency management under the heading ‘Leaders not up to disasters: new study’.   The article refers to a report by the Noetic Group headed ‘Senior Leadership in Times of Crisis’ (you can download the full report from the Noetic website – http://noeticgroup.com/nrs/news-and-publications/article/?id=noetic-notes-senior-leadership-in-time-of-crisis.

The report is interesting and makes many suggestions but as they are not raising legal issues I won’t comment on them. What I did find legally interesting was the finding that:

Calmness is also essential during a crisis. Noetic Group’s work confirmed what has been known for many years: when senior leaders resort to shouting, bashing on desks or maps and other hostile actions, they instil fear and break relationships, causing optimism and resilience to diminish. The likelihood of a successful response to the crisis becomes dramatically reduced. (p 9).

What struck me about that was the difference between that finding and the cross examination during the hearing in the matter of Warragamba Winery Pty Ltd v State of New South Wales [2012] NSWSC 701.   The issue was whether or not the members of the incident management team had taken sufficient action to communicate with the NSW Air Desk over their need for helicopters to assist with the firefighting effort.  The following is taken from the judgement of Walmsley AJ:

A general allegation was made … that [name] knew full well what was needed that morning but seemed to do very little about it, making an “extremely slow” attempt to obtain contact with the air desk. [His] … explanation, set out below, for why he did what he did, shows why, in my view, the plaintiffs’ criticism of him and the RFS and the NPWS generally that morning for not showing a sense of urgency, is completely empty, and shows only a misunderstanding of how a well run organisation works:

“Q. [Counsel]… asked you some questions about your telephone calls to the Airdesk?

A. Yes.

Q. And I think he suggested to you that you weren’t showing any sign of urgency or irritation, and you said, I think, it was in your nature to be polite?

A. Yes.

Q. Is there any point in sort of the situation you were in of losing your temper? …

A. Well, if the leader panics, the whole team panics. And I’ve trained myself over the years, I have been a long time, to try and keep cool, to manage people by steering them rather than give demands. And that’s how I manage people. And I found is very successful over the years to get the best out of people. But leaders cannot panic. They cannot show panic. You’ve got to be calm and organised. That is my style.”  (pp 492-493).

This aligns with Noetic’s recommendation, that a leader should remain calm.  This particular senior manager did that and was not criticised by the court; the judge said

[Counsel] … criticised him for not showing a greater sense of urgency when making that enquiry, but for reasons which I shall later explain, I consider there was no substance in that criticism. (p 81).

Further he said

It is obvious to me, having had the advantage of observing the witnesses, that [they] … did their jobs without a sense of panic, in the same way others in emergency operations, such as surgeons and ambulance officers, operate. Calmness is necessary to get the job done. The odd touches of humour coming from the many conversations in Exhibit K show the parties to the conversations seemed to know what they were doing, and managed their work without panic, and with the ability to see the funny side of things at times. These to my observation were men and women of competence and experience just getting on with their jobs. (p 490)

So far so good, the defence lawyers and the judge all saw the need for calmness and a failure to ‘resort to shouting, bashing on desks or maps and other hostile actions’ was NOT evidence that those managing the incident did not understand the serious of the situation or that they were not doing all that they could to arrange an effective response.  What is troubling is that the Plaintiff’s lawyers put that to the witnesses and attempted to criticise the managers for ‘not showing a greater sense of urgency’.

The theory in litigation is that each party is represented by competent counsel who vigorously put their client’s case in the strongest way.  If that is happening for each party each possible option is explored and the ‘truth’ will come out.  In one sense that seems to have happened here, one side put up the suggestion that ‘showing a greater sense of urgency’ would have improved the outcome, the other side responded and the judge came to the conclusion that ‘there was no substance in that criticism’ so in that sense the process worked as it should.

I’m afraid however, in my view it does my profession no credit to even put such suggestions.  It reinforces the view that they don’t know anything about the industry they are reviewing, they are trying to ‘trap’ the unsuspecting witness or they are putting on a show for their client.  Either way it is unhelpful and what’s more, it can only discourage people from coming forward as honest witnesses if they are going to be challenged and it is going to be seriously put that they should engage in conduct that is identified as being at best unhelpful, at worst harmful.  No wonder emergency services workers are confused as to what is expected of them if they are going to try to engage in ‘best practice’ and then be criticised by counsel for that conduct.  It is probably little consolation for a witness that has gone through vigorous cross examination, for the judge to later say ‘there was no substance in that criticism’.

It really is time to move away from the court room so we can learn lessons from events, and people can report what happened without being accused of personal failure.

Michael Eburn

1 November.