In their latest newsletter, the Australian Local Government Association reports on a review into the South Australian Fire and Emergency Services Act (see ‘Volunteers thinning because of job security and liability concerns’)
According to that brief summary: “The report found current volunteer ranks are thinning for several reasons, including the ageing population, increased paperwork and fears about liability”. My immediate reaction was to again ‘not again, how can volunteers be concerned about liability – and if they’re not reassured now, changing the law won’t help’. But going to the actual report reveals that the ALGA summary is not quite correct.

The report is the Review of the Fire and Emergency Services Act 2005 Pursuant to Section 149 of the Fire and Emergency Services Act by the Hon. Paul Holloway.

The discussion on liability issues is at pp 35-38 and p 41. At page 35-38 Mr Holloway discusses the liability of councils and others. With all due modesty, I note that the review draws extensively on the work of my colleague, Professor Stephen Dovers, and I. In our work we’ve argued that it is not liability that is the issue, but the process of review. In our paper, ‘Australian wildfire litigation’, published in (2012) 21 International Journal of Wildland Fire pp 488-497, we reviewed post fire litigation and concluded that litigation against the fire services was rare, and unheard of against volunteers. We concluded

If litigation is not very common, what can explain the perception that people are inhibited by fear of legal liability? It is suggested that the problem lies in the use of the term ‘liability’; what volunteers and others are, or should be, concerned about is not liability but the time, cost and inconvenience of responding to more and more complex post-event inquiries coupled with the fear of personal attribution of blame. This may not be ‘liability’ as a lawyer would understand it, but would be understood as such by lay members of the firefighting community

This finding was given explicit recognition when, at p 36 the review said:

Even though there is significant legal protection for firefighters and, in particular, volunteers, and even though litigation against fire services is rare and none exists against individual firefighters, many volunteers remain concerned. CFS Volunteers are concerned about the risk to their reputations, livelihoods and assets when called to appear to give evidence at various courts of inquiries and other legal proceedings. Such appearances are quite stressful to volunteers who are often asked to give reason for their decisions at the incident in question.

and at p 41 where it was noted that the relevant fear was at least in part, a fear of cross examination.

One of our suggestions has been that we need to develop a new model to review emergency events, a model that does not sacrifice the goodwill of volunteers by subjecting them to cross examination. The report, at recommendation 19 said:

When judging major incidents in the future, consideration be given to Eburn and Dover’s proposal to establish processes with a statutory basis that sufficiently balance the community’s interests in ensuring that true lessons, including lessons of error or neglect, are identified, whilst also protecting members of the emergency services. Processes need to be developed for emergency services such as those used in aviation and medicine, to facilitate open and honest disclosure of errors.

I am leading a research team that is currently seeking funding from the new Bushfire and Natural Hazards CRC to further explore alternative means for reviewing emergency events. Hopefully that work will assist the community to learn lessons from the response to catastrophic incidents without looking for someone to blame.

Michael Eburn