A fire has been burning at the Hazelwood open cut coal mine in Victoria for some time and, on the 24th February, was expected to burn for at least another two weeks (http://news.cfa.vic.gov.au/news/mine-fire-faq-24-february-2014.html ). The fire is having an impact on people in the area and there are clear fears for community safety. In response the Department of Health and have been issuing P2 face masks or respirators and that has lead to a question and this post. My correspondent writes:

The Hazelwood Mine fire in Vic is causing ongoing issues for the CFA (and other fire agencies) and the public and is likely to for the next few weeks at least. On the 19th of Feb the DoH (Vic) released this about face masks http://docs.health.vic.gov.au/docs/doc/D39854C896DE0842CA257C88007D25F3/$FILE/Face%20mask_%20Q%20&%20A%20UPDATED_24%20February%202014%20.pdf and I have some questions regarding the use of P2 respirators in this setting … I am well aware of the requirements under AS/NZS 1716 and AS/NZS 1715 regarding the selection of, fitting and use of respiratory protection devices. In a workplace there are some fairly onerous requirements in using a P2 respirator (what the DoH are calling face masks) and I wonder how they are getting around these when supplying them to the general public? Even though the DoH states the P2 masks do not protect completely does this absolve them of the requirements of the relevant standards? It seems a bit strange to me that given the problems with wearing a P2 respirator (increased work of breathing and very uncomfortable) in the high risk groups that this would be considered a suitable solution. Maybe it is the much lesser of two evils with evacuation being a rather large exercise in this setting!

The real issue in this question is not applying standards from one area; to another. First I am not aware of ‘the requirements under AS/NZS 1716 and AS/NZS 1715’ but it may come as a surprise that Australian Standards are not legally binding. There is no general obligation to comply with Australian standards though there may be in specific circumstances. For example a motorcycle crash helmet must comply with Australian Standard 1698-1988 but that is because of a specific rule (Trade Practices Act 1974 – Consumer Protection Notice No. 9 of 1990 – Consumer Product Safety Standard: Protective Helmets for Motor Cyclists) rather than some general obligation to comply with the Australian Standards.

The relevance of the Australian Standards is that if there is an allegation that someone failed to act reasonably, whether that is in a claim for negligence or a prosecution for work health and safety standards, evidence of compliance with (or failure to comply with) an Australian standard may be evidence that the defendant’s response to a risk was (or was not) reasonable. It is not however conclusive evidence, compliance with an Australian standard does not prove a reasonable response to risk; evidence of failure to comply does not prove an unreasonable response to risk. It is just one factor to be considered in all the circumstances.

Even if compliance with a standard was required, one has to identify when the standard applies. I don’t have access to the standards in question. Presumably the P2 respirators meet the standard in terms of manufactor, even if there are limitations in when they should be used (see https://www.worksafe.vic.gov.au/forms-and-publications/forms-and-publications/respirator-and-filter-integrity and https://www.worksafe.vic.gov.au/forms-and-publications/forms-and-publications/respiratory-protective-devices). The decision on which respirator to use must, as in all things these days, be based on a risk assessment. You don’t have to supply everyone with self contained breathing devices if a P2 mask will do.

As my correspondent says ‘In a workplace there are some fairly onerous requirements in using a P2 respirator…’ but this is not a workplace issue; neither health nor the CFA lit this fire; that is they did not expose the people to risk, nor are they under a legal duty to provide respirators. In the circumstances the standards that may apply in a workplace just wouldn’t apply here; what needs to be applied here is a risk assessment. They have done a risk assessment and are providing advice other than just the use of these masks. The question of what is a reasonable response to a risk involves:

… a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. (Wyong Shire v Shirt (1980) 146 CLR 40, [14] (Mason CJ)).

They are not issuing P2 masks to firefighters, they are giving comprehensive advice, and what are their options? More expensive masks? Evacuation? All of these have their own costs. Remember too that in fact they don’t have to issue masks at all; they could suggest people buy them, or leave the area etc.

The DoH may have issued P2 masks but they are not saying that they must be worn or that they are the the ultimate solution. They advise

It is better to stay indoors, away from the smoke. If you cannot avoid going outdoors and choose to wear a face mask to reduce inhalation of particles and gases in the air it’s important to understand their benefits and limitations.

They warn:

P2 masks don’t provide complete protection.

And

P2 masks can be very hot and uncomfortable and can make it harder for you to breathe normally.

They warn who should not wear a mask and what else can be done to ‘protect my family from the smoke and ash?’ This is quite different to an employer saying ‘I require you to work in this hazardous smoke and this is the PPE I’m issuing you’.

So how are they ’getting around these [workplace standards] when supplying them to the general public?’ The answer is that workplace standards do not apply in this context. What does apply, to the extent that there is a duty to do anything, is a duty to act reasonably and that requires a consideration of all the circumstances. Issuing a P2 and advising on the limitations of the mask may well be a reasonable response given the potential risk and the ‘expense, difficulty and inconvenience’ of any alternative response. It is, as my correspondent suggests ‘the much lesser of two evils with evacuation being a rather large exercise in this setting’ and evacuation bringing it’s own costs to those evacuated.