I am a Senior Deputy Captain with the NSW RFS. In the RFS in order to go to callouts a member must successfully complete the bush firefighter (BF) course. As the name suggests this course teaches bush and grass fire fighting skills. There is a separate course which teaches village firefighting skills (VF) which is often done until about a year after BF and teaches skills relating to village firefighting incidents such as motor vehicle accidents, structure fires and car fires.
As I mentioned within the RFS members are able to start attending incidents once they have completed BF, regardless of what the incident is. This means that it is not unusual, particularly within village type brigades such as mine to have crew at village type incidents who have not completed the VF training course. The relevant NSW RFS service standard (6.1.2) does specify that the minimum qualification required to “Fight a village type fire (structure/vehicle)” is village firefighter but it is normal practice (and district staff are certainly aware that it happens) within all RFS areas I know of for members to attend village type incidents even if they are not village qualified. If only village qualified members were sent then there are cases where brigades may not be able to send a crew.
This then leads to a few questions:
- As an officer should I be stopping non VF qualified members from attending village type incidents?
- Is there any liability on myself, a non VF qualified member or the brigade either from a WHS perspective or more generally if a non VF qualified member gets injured/killed at a village type fire?
- Is there any liability if a member of the public or their property is injured / damaged as a result of the actions of a non VF qualified member at a village type incident?
The answers to these questions will, as if often the case, turn on the risk assessment. In the normal way with legal analysis we can start with the ‘rules’ and then apply them to the facts. The first relevant rules is Service Standard 6.1.2. For mainstream fire fighting roles, the Service Standard says, in Appendix 1, that in order to:
- ‘Fight a village type fire (structure/vehicle)’ one needs to be qualified as a Village Firefighter (VF).
- Lead a crew ‘fighting a village type fire’ you need a qualification as ‘Crew Leader Village (CLV)’.
- Fight a village fire using an interior attack, one needs qualifications as a Breathing Apparatus Operator (BAO).
These ‘requirements do not apply in rural remote brigades’ that is ‘farm based brigades’. I infer that my correspondent is not from a ‘rural remote brigade’. Further:
Using a risk management approach, a District Manager may waive any of the requirements for volunteer qualifications in their area of jurisdiction, provided they are working to achieve compliance within a reasonable time and are satisfied that current operations can be conducted safely. (Service Standard 6.12, [2.4]).
I will assume that no such waiver has been made.
Next we need to consider the Work Health and Safety Act 2011 (NSW) which says that person conducting a business or undertaking (the PCBU, in this case the Rural Fire Service) has to ‘ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person …’ (s 19). As is now well known, ‘workers’ includes volunteers (s 7). What reasonably practicable means is:
… 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. (s 18).
Although not a binding precedent, a Scottish Sheriff (the equivalent of our Coroner) in a report on the Death of Alison Hume (see ‘Legal confusion leads to unnecessary death’ 8 December 2011) was critical of the Strathclyde Fire and Rescue service for rigidly adhering to a policy directive without stopping to think what was the actual risk and importantly how severe was the risk compared to the objective to be achieved. There is always a risk to fire fighters but that doesn’t mean we don’t let fire fighters fight fires, the benefit of fighting fires warrants some risk but steps must be taken to minimise but not eliminate all risks.
Finally let’s remember the rule, referred to often in this blog, about the fire brigades’ duty of care. In Capital and Counties v Hampshire Council [1997] QB 2004 the UK court ruled that fire brigades are not established for individual benefit but for community benefit and they do not owe a duty of care to individuals. In that case the court (Lord Justice Stuart-Smith; Lord Justice Potter and, the appropriately named, Lord Justice Judge) said
In our judgment the fire brigade are not under a common law duty to answer the call for help and are not under a duty to take care to do so. If therefore they fail to turn up or fail to turn up in time because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable.
If they do owe a duty it is a duty not to make the situation worse, not necessarily to make it better (see any number of posts on this blog at https://emergencylaw.wordpress.com/?s=capital+and+counties).
If they are the relevant rules let us try to apply them to the facts as given. The situation is that there is a fire in the ‘village’ and the RFS have been called. The members are only qualified to BF. (I would expect that there may be some qualified to VF but that’s not in the facts as given so I will assume that in fact none are qualified to VF). Presumably there is a neighbouring brigade that may be able to come, and depending on where the village is NSW Fire and Rescue may also be dispatched but I will assume that their response times will be sufficiently long that waiting for them is not a real option.
Remember that fire brigades are established for the community benefit and what the community requires is that the village is not razed; the loss of a single building will be bad for the building owner and may be quite devastating for the village if it is a key piece of infrastructure (the pub or the shop) but losing that will not be as bad as losing the entire village or shopping strip. The RFS has received the call and it is the function of the Rural Fire Service to provide rural fire services which includes protecting people, property and infrastructure from damage by fire (Rural Fires Act 1997 (NSW) s 9). As the local brigade you have two options: go or don’t go.
If you don’t go, the risk to the community is self evident. There won’t necessarily be any ‘liablity’ if you don’t go, there is no duty of care to individuals, it is not clear but the balance of authority would say that the obligations set out in s 9 do not give a person a right to sue if you don’t go (Bennett and Wood Ltd v Orange City Council; Board of Fire Commissioners (Third Party) (1967) 67 SR(NSW) 426). If there is liability it would fall on the RFS, not individual members as it is the RFS (if anyone) that is required to respond, not individuals – volunteers can always not volunteer. But as noted, the risk is self evident and no doubt volunteer fire fighters volunteer to support and protect their community.
The alternative is to go. What’s the risk, so far nothing more than the risk of responding to any fire. The members get in the appliance and they go and arrive at the fire scene. Now the options are more complex: what do you do when you get there? Now is the time for risk assessment – if your there for the community benefit the objective has to be to contain the fire. An urban brigade, or an RFS brigade, staffed with VF and BAO qualified fire fighters may see their measure of success as containing the fire to the room of origin (see Productivity Commission Report on Government Services 2014 (Commonwealth of Australia, 2014) Volume D, Chapter 9, page 9.33) but that is not a reasonable expectation here. Here containing the fire to the building of origin is more realistic.
I’m not a fire fighter but I can imagine there are a number of strategies that could be deployed which involve fighting the fire from the street. There is no need to actually enter the building. It could be that fire fighting resources are in fact deployed to simply wet down neighbouring buildings and deal with spot fires and allow the burning building to burn.
Again risk assessment is the key and to again quote Mason CJ from Wyong Shire v Shirt (1980) 146 CLR 40 (at 48), an assessment of what is reasonable
… calls for 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.
So the officer in charge has to consider the risk to firefighters, the risk to the community, what can be done to mitigate those risks and the like.
Let me return to the questions:
- As an officer should I be stopping non VF qualified members from attending village type incidents?
If members are allowed to attend with BF then I don’t see why. That answer may be different if there is a specific instruction from the RFS to that effect, but you tell me that members are allowed to attend with BF and the service standard says they’re not allowed to ‘fight’ a village type fire, but that doesn’t mean that they are not allowed to go. And then we have a question of what does ‘fight’ a village type fire mean? We can reasonably infer that they should not be going into the burning building – regardless of definition of ‘fight’ that’s just too risky – even if there are people in the building!
Within the RFS you must know what is taught in the VF course and what the extra skills are and the OIC/IC can determine what skills are required. If turning the water onto nearby homes is the best option that, I would think, is quite consistent with a BF skill.
- Is there any liability on myself, a non VF qualified member or the brigade either from a WHS perspective or more generally if a non VF qualified member gets injured/killed at a village type fire?
There is unlikely to be personal liability. The RFS would be liable to pay compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) but that’s a no fault scheme. Under common law the RFS would also be liable for the negligence of its volunteers and one would argue they were negligent in not sufficiently training you on what to do – particularly given ‘district staff are certainly aware that it happens’.
By virtue of the Work Health and Safety Act 2011 (NSW) s 34, a volunteer’s duties are limited to those set out in s 28 and 29. Section 28 says:
While at work, a worker 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.
(Section 29 is similar and relates to the duty to protect others at the workplace and will not be discussed here).
There may be a breach of s 28(b) if you, as the IC, directed a non-qualified fire fighter to enter the building to rescue the cat. It may be argued that as the captain you did not ‘comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the[PCBU]’ but as we’ve noted there does not appear to be a specific instruction that BF firefighters can’t go, only that they can’t ‘fight’ a village type fire. And an instruction not to go at all may not be a ‘reasonable instruction’ given the risk to the village and that the Brigade may be able to do something to contain the fire even if they cannot save the building that is on fire.
So short of blatant stupidity, or malicious intent, there will not be personal liability. The RFS may be liable but as in all cases it would depend on the circumstances. What killed or injured the fire fighter? What was the risk assessment? Were the factors listed in section 18 (above) considered? When considering the risk was concern also given to the purpose to be achieved ie the need to contain the fire?
(I do know that there are specific duties on ‘officers’ under the WHS Act s 27; but a Senior Deputy Captain may be an RFS Officer but he or she is not an officer as that term is defined in the WHS Act s 247 and see also s 34 which exempts volunteers from the ‘officer’ provisions).
- Is there any liability if a member of the public or their property is injured damaged as a result of the actions of a non VF qualified member at a village type incident?
No.
Let me explain in more detail. The duty of the RFS is only not to make the situation worse. The property is on fire, what’s the fire fighter going to do to make the situation worse? I guess they could do what one of the defendants did in Capital and Counties v Hampshire Council [1997] QB 2004 which was turn off the sprinklers before the seat of the fire had been located with the consequence that the building was lost and would have been better protected if the fire fighters had not shown up at all.
But we know that an Act done in good faith does not attract liability (Rural Fires Act 1997 (NSW) s 128) so provided the fire fighter is doing his her honest best there will be no liability (see also my post on Myer Stores Ltd v State Fire Commission [2012] TASSC 54 (24 August 2012)).
What of the claim that they didn’t do enough? Well as noted the common law would say that the brigade’s duty is to the community not to the owner of the property; if the property was going to burn without them brigade in attendance then it doesn’t matter if it burns when they are there if they are doing things like protecting the neighbouring properties. Finding a duty to protect the property would be inconsistent with the RFS legislation in particular s 25 which says:
(1) An officer of a rural fire brigade or group of rural fire brigades may, if persons are, or property is, endangered or likely to be endangered by a fire … (b) destroy, pull down, shore up or remove, or cause to be destroyed, pulled down, shored up or removed, any buildings or structures or parts of buildings or structures on any land,
If the only way to contain the fire was to drive a bulldozer over it, that could be done to protect the village and provided it was done in good faith would not expose the RFS to liability. ‘A man may justify pulling down a house on fire for the safety of the neighbouring houses’ (Malverer v Spinke (1538) 73 ER 79, 81 (and yes, the reference to 1538 is correct)). If you have the power to destroy the building you can hardly be liable for failing to save it (Board of Fire Commissioners v Rowland [1960] SR(NSW) 322).
The property owner cannot sue the RFS for not having VF qualified fire fighters. The RFS has the resources it has, both in money terms and in terms of volunteers and cannot be sued for not responding with that which it does not have (Civil Liability Act 2002 (NSW) s 42).
‘The moral of the story is … : make sure you have insurance cover for losses occasioned by fire on your premises’ (Stannard v Gore (2012) EWCA Civ 1248, [50] (Ward LJ)).
Conclusion
The conclusion has to be, subject to any specific direction to the contrary, that you turn out and do the best you can but in doing the best you can you have to take ‘reasonable care’ for, and ensure so far as is ‘reasonably practicable’, the health and safety of everyone, the firefighters, bystanders, people in the property etc but what that means depends on all the circumstances. You have to consider the risks, what is the most effective thing that can be done without exposing people to clearly unacceptable risks (do not let the BF firefighter actually enter the building), and do the best you can.
I don’t think the law would expect any more, or less.
Australian Emergency Law 
All good and well until………. it goes wrong. One thing we have to understand and that is when the proverbial s*** hits the fan, all rules, regulations and acts and operational guidelines go out the door. It’s a funny (not really) thing but when the red stuff is present, particularly when property is involved, it takes a very stable mind (preferably one that has been exposed to many events) to maintain a level of oversight over the situation. Including turning your back onto the fire and think about your crew, resources, skills, qualifications and abilities. Not easy! Particularly when someone eager to help (maybe not qualified) is there lending a helping hand. Who is responsible and covers this person having a twisted ankle, broken wrist or heaven forbid anything worse. It’s a real dilemma, most CFU/RFS volunteers have to deal with on a daily basis. Good luck with that one
Indeed it’s ‘All good and well until … it goes wrong’ and one can’t give a definitive answer to the question ‘Is there any liability …if a non VF qualified member gets injured/killed at a village type fire?’ because it all depends on the facts and the ways and means by which people can kill themselves is infinite. Equally if it all goes wrong someone may ‘have a go’ and the process will not be easy, so someone may then say my answer was wrong even if the end result is no liability if people confuse the process (being sued) with the outcome (winning or losing). The emergency for the property owner or the person in the car accident should not be an emergency for the emergency services, it’s their day to day work (even if they’re volunteers). If the impact of ‘the proverbial s*** hits’, means the ‘rules, regulations and acts and operational guidelines go out the door’ then that’s a problem with drafting, training and/or recruitment. As for who ‘covers this person having a twisted ankle, broken wrist or heaven forbid anything worse’ it’s the WorkCover Authority administering the WORKERS COMPENSATION (BUSH FIRE, EMERGENCY AND RESCUE SERVICES) ACT 1987 (NSW). This is a no fault scheme so no has to be at fault and the firefighter is covered even if they are the cause of their own injury.
As an RFS fire fighter with AF and VF qualifications and 16 years of experience I would be hesitant to accept all of these recommendations. I accept that there would be little concern for liability due to the inability to save a property. However, I believe the primary concern here is the safety of such BF fire fighters attending structural fire incidents.
An OIC (or crew leader) has a duty of care toward their crew. Which ultimately means they have the power to remove a member from their crew if they don’t feel that member could operate safely at the incident. The basic checklist which the RFS uses for making such assessments is IMSAFE. Which means:
– Illness
– Medication
– Stress
– Alcohol (& Drugs)
– Fatigue
– Experience
Any of these reasons could be cause for removal from a crew. A member will normally remove themselves. But, if a crew leader is concerned then they should not allow the member to join their crew. Whether or not a crew leader removes a BF member from their crew depends on whether or not they believe that the member can safely operate in that environment.
In some situations a BF member can safely operate provided that they are very closely supervised. Which usually means that they are paired with a VF member. In other situations a BF member (who has not been trained to recognise certain hazards) could be injured or killed just by stepping out of the vehicle.
It should be understood that the service standard referenced is an internal RFS document and not law. Though RFS members are subject to it, it should also be understood in the context of the priorities given in SOP #1. Which are:
– To protect life;
– To protect property;
– To restore normality.
SOP #1 also states that, “Fire officers are authorised to do any safe, reasonable and legal thing to satisfy the above priorities, even if it does not comply with normally accepted practices”.
Benjamin, thanks so much for adding your insights. I’d love to hear more from your or other VF qualified firefighters. I take my ‘facts’ as given by the people who ask me the question and add some assumptions. If either is wrong then the answer is also wrong, or at least might be, so may I ask for some clarification?
First let me go back through the process (and the assumptions). In my answer I assumed that there were no VF trained members able to respond. I appreciate that in a brigade that has village firefighting responsibilities that is probably unlikely, there would usually be some members that could respond so let me change that assumption and assume, instead, that there is one VF qualified member and let me assume that’s you, ‘an RFS fire fighter with AF and VF qualifications and 16 years of experience’. I also assumed that support from a neighbouring brigade or NSW Fire and Rescue was too far away to making waiting for them practical.
In those circumstances, a choice of not to go is not unreasonable, as you say safety should be the first priority, but I also assume that people join their RFS to support their community and if the community is small enough that the RFS provides village fire fighting rather than the community being protected by NSWFR, then most members are not going to be willing to stand by at the station to let the village burn; so practically, perhaps, ‘no go’ is not an option, but is that a reasonable assumption?
I also said that my answer depended on no specific directive from RFS not to respond. It may be a ‘standing order’ (‘a crew is not to respond to a village event unless and until there are three VF firefighters on the truck’) or the crew leader may have contacted CommCen and said ‘we’ve got four BF firefighters, but only one VF and we’re not expecting anyone else to respond’ and CommCen has directed – ‘do not proceed, we’ll respond Kickatinalong brigade and they’ll be there in ¾ of an hour’.
So if my assumptions:
1. The village is at risk and members want to help;
2. It’s you or it’s no-one;
3. You’ve not been specifically told ‘don’t go’
are correct; would you ‘go or not go’ if you’re the only VF qualified member and the other members are all BF qualified?
You then say ‘there would be little concern for liability … However, I believe the primary concern here is the safety of such BF fire fighters attending structural fire incidents’. I agree entirely and I’ve spoken on the liability issues, but those answers may change on your assessment of the safety issues. You say:
Clearly, on my assumptions, the BF members can’t be paired with a VF member.
I suggested that the risk of responding to the fire is not significantly more than responding to any fire, and there I meant the risk of getting in the truck and driving the fire ground. Is that assumption reasonable? There is not doubt that a person can be killed just by stepping out of the vehicle (I clearly remember a near miss with a fire truck as I got out of an ambulance many years ago, as an ambulance paramedic, I make a great lawyer but let’s not go there…). That risk may be higher in a village situation than a bush situation because there’s more traffic, but equally the ground may be more stable and visible than when stepping out of a truck in bushland, so there are risks in both, but is it significantly higher in a village situation?
I then said that once the crew gets there ‘the options are more complex’ because then you have to decide what to do, and in my revised example I am now assuming there is one and only one VF qualified firefighter and that’s you. So you have to decide what to do. Again you could do nothing, or just post firefighters at each end to close the street (Rural Fires Act 1997 (NSW) s 24). But what of my suggestion that
Is that correct and if that is correct do those strategies necessarily expose firefighters to an unreasonable risk?
My answers would be quite different if what you had in response to a pager call, was the ability to make up a crew of fully qualified VF firefighters and some extra BF firefighters who you could take with you to act under supervision or otherwise provide support, but that was not the situation put by the person asking the question nor was that my assumptions.
So can I ask you to clarify which of my ‘recommendations’ are you ‘hesitant to accept’ and why? Is it that my assumptions are incorrect and in particular my assumption that there is something a BF crew could do from the street which had, implied in it, that such an action would not expose them to unreasonable risk?
Given your experience, I would very much value your answers and I’m sure the other reader’s of this blog would, too.
Thank you for asking the question. I would be happy to provide what insight I can. Which hopefully will be of assistance.
In the vast majority of structural incidents an RFS brigade are likely to encounter the hazards are usually not that much greater than a regular bushfire incident. It should also be noted that emergency situations are inherently fluid. It is always possible for a bushfire incident to evolve into a structural incident. Or a structural incident to become a HAZMAT incident. So there often is a practical requirement to work with the crew you have (not the crew you would like to have).
As you have correctly surmised. There nearly is always some good that a crew can do at any incident. So long as they are able to recognise and work within their limitations. For instance a BF member could quite successfully prevent public access or perform traffic control. In doing so they are performing the most vital aspect of one’s duty – which is to protect the general public from the hazard.
One such example I can recall was when I was responded to a house fire. I was in charge of the appliance as an “acting crew leader” in a Toyota Landcruiser (what we in the RFS call a Cat 9). I had insufficient water for fire fighting and one other crew member who was only BF qualified.
I was obviously out of my depth and don’t believe I would have been faulted for refusing to respond. However, in doing so I was able to:
– Locate the property and gain access – conveying this information to other units so that the heavy tankers would not be delayed.
– Arrived on scene and reported the size and nature of the incident to FireCom.
– Located the property owner and made sure all occupants were safe.
– Was able to administer first aid treatment.
– Conveyed all the necessary information to the FRNSW commander on arrival.
However, there are some situations where specialist knowledge could be life-saving. Those particular hazards faced at structural incidents might include:
– Fallen power lines and electrocution hazards;
– Fast moving traffic;
– Volatile or explosive substances (which can deteriorate if the inappropriate extinguishing medium is applied)
– Toxic, Asphyxiating or Explosive gases.
– Pressure vessels and structures which might rupture or fail.
So in the particular example indicated. Where the crew consists of 1 CLV, 1 VF and 4 BF. I would tend to suggest that the crew respond to the incident. However, as that (hypothetical) crew leader, the inexperience of my crew would strongly influence what I had them do when they arrived on scene.