Those concerned that OHS rules will inhibit rescue may like to read this story from the New Zealand Herald – Rescue heroes: ‘We had to do something’. It is unlikely that an inspector appointed under New Zealand’s Health and Safety in Employment Act 1992 would prosecute any of these officers, even though there is a duty on each employee ”take all practicable steps to ensure (a) the employee’s safety while at work…” (s 19). Section 2A tells us that “all practicable steps”:

… means all steps to achieve the result that it is reasonably practicable to take in the circumstances, having regard to—
(a) the nature and severity of the harm that may be suffered if the result is not achieved; and
(b) the current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved; and
(c) the current state of knowledge about harm of that nature; and
(d) the current state of knowledge about the means available to achieve the result, and about the likely efficacy of each of those means; and
(e) the availability and cost of each of those means.

The result to be achieved in these cases was the rescue of those whose lives were under dire threat. The nature and severity of the harm that may be suffered if the result (rescue) was not achieved was death; the rescuers may well have had knowledge both about the risk and the ideal way to make a safer rescue but they also knew that it was not an ideal world and waiting for further rescue tools was not an option. Equally we can see the rescuers were not reckless, in the car accident the rescuers didn’t proceed once they were exposed to electricity, they rethought the issue and came up with another solution; ‘a fibreglass pole to lift the live line off the car’.

The legislation in New Zealand is very similar to the work health and safety legislation in Australia, which also requires an employee and employer to take reasonably practical steps to reduce risks to health and safety. In NSW the Work Health and Safety Act 2011 (NSW) s 18 says:

“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.

If the scenario reported in New Zealand happened in NSW then the Act appears to direct attention to the risk which is both death to the victim and the rescuer, but the degree of harm was the death of the victim but the rescuers appear to have been attentive (at least the firefighters) to a risk of injury and backed off when affected by electricity, and again they considered ways to deal with the risk.

In either country it’s unlikely anyone would be prosecuted but one has to also concede there is a real politik to that, it’s hard to prosecute someone in the name of the Crown when the Crown via the Governor General has just honoured them with a reward.

Michael Eburn
30 June 2013