This was a very long question, so I’ve edited to make it shorter. I am also told that my correspondent has removed this discussion from his assessment task, so I’m only addressing this on the understanding that I am NOT contributing to his assessment task. My correspondent writes:
I am currently studying unit on Emergency and Crisis management as part of my Masters in OHS at Edith Cowen University WA. As part of this unit we have been asked to comment on the new WHS legislation and the inclusion of volunteers into the definition of worker, how this WHS legislation might affect volunteers and to summarise the legal health and safety issues that underpin volunteers in your region.
This task set me off thinking about the Emergency Response Teams on WA Mine sites. My interpretation of the Mines Safety and Inspection Act [WA] 1994(MSIA) is that all members of the ERT working in any capacity, are under direction of the employer, and are employees even though they have volunteered to be members of the ERT.
This then begs the question as to what is the coverage if they as volunteers, utilising the skills and knowledge gained during their employment, along with the resources of the mine, assist in emergency management beyond the mine. If they attend traffic accidents on the gazetted road, which runs through the mine lease, are they acting as employees or good Samaritans? Let us assume they apply first aid measures, and transport casualties, in the first instance to the town medical centre. This is within the boundaries of the community, and on the mine lease. However the MSIA explicitly exempts these community areas, from the Act. So what now are we employee or Good Samaritan? If during this patient transfer a member of the ERT injures his back, is he covered by the MSIA act? Does Workers Compensation cover him? I would argue this is still within the confines of the mine, and therefore he is an employee and covered, because the MSIA excludes “leisure activities”. Now let us assume he is transferring the patient from the medical centre to the Royal Flying Doctors aircraft. During this if the hypothetical ERT member causes harm, by the fault of his actions, were would this stand at law? Covered by the Civil Liabilities Act 2002?
Now let us assume the accident they attend utilising the equipment and resources of the mine happens out on the North West Coastal Highway. Now they are well and truly off the mine lease? They have taken on the duties of the now defunct, volunteer fire brigade. Defunct as a direct result of the introduction of mine rescue teams by the mining company and the withdrawal of their support to the volunteer fire brigade. Had they attended the scene as members of the volunteer fire brigade, they were volunteers and therefore entitled to the protection of the State government or the Civil Liabilities Act? As members of the Mines ERT they are employees who must adhere to the policies and procedures of the mining company as well as the MSIA. Not possible as the MSIA does NOT cover workplaces outside a mine. So will we revert then to the Occupational Safety and Health Act? Looking beyond these semantics, over which act, what happens again if they make a mistake and cause serious harm to the casualty. Can that person now take action against the individuals or even the mine? As a corporation the mine is not covered by the “good Samaritan clauses”. Would members of the team be entitled to coverage?
Good Samaritan clause gives protection via the Civil Liabilities Act. This is not applicable to the workplace and only covers claims for “damages for harm caused by the fault of a person” the Western Australian Volunteers (Protection from Liability) Bill 2002 specifically excludes a person who is taken to be performing a function under an emergency services act. Would this include the privately funded ERT units?
This question suggests that the law is much more complex than it actually is or will be and the legislation will not really determine most of the matters.
First, though, the Volunteers (Protection from Liability) Bill 2002 was a Bill. A bill is a draft law, it is not however ‘the’ law. The relevant Act in WA is the Volunteer and Food and Other Donors (Protection from Liability) Act 2002 (WA).
I can’t see where or how the Mines Safety and Inspection Act 1994 (WA) explicitly exempts ‘community areas’ or ‘leisure activities’ as those terms are not used in either the Act or its regulations.
To the law:
An employee is an employee when they are doing what they are employed to do. There is no doubt that a person who is employed at a mine and who joins the Emergency Response Team is still an employee. They are not a ‘volunteer’ because they volunteered to assume extra duties. Their employment includes their role in the ERT so they are an employee.
An employer is vicariously liable for the torts or wrongs of their employee. If they are acting as members of the ERT they are employees, so if there is any negligence it will be the employer (the mine) that is liable (Hollis v Vabu (2001) 207 CLR 21; Sweeney v Boylan Nominees (2006) 226 CLR 161). This will not be the case if there is gross or wilful misconduct or their actions are so far beyond what they are employed to do they can be described as being on a ‘frolic of their own’. If they are using the ERT vehicle for drag racing or to provide a cool wedding transport vehicle, without the knowledge or permission of the mine, they may be on a frolic of their own.
So if they are attending to an emergency outside the mine the issue is, is that endorsed by the employer? If they are just driving along the road and see an accident and stop to help they, and the mine, are good Samaritans. The Civil Liability Act 2002 (WA) s 5AD says:
A good samaritan does not incur any personal civil liability in respect of an act or omission done or made by the good samaritan at the scene of an emergency in good faith and without recklessness in assisting a person in apparent need of emergency assistance.
A ‘good samaritan means a natural person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance’. In law a corporation is also a person (Interpretation Act 1984 (WA) s 5) so the reference to ‘natural person’ makes it clear that this section does not extend to a corporation, so the rescue workers can rely on that provision, but the mine could not.
I do not think this would be sufficiently divorced from their duties to constitute a frolic of their own. If they’re driving an emergency vehicle and representing a company that is a major player in the community then I cannot imagine for a moment that the employer would in any way want them to drive past and not help. The reputational damage would be immense. So even if there were no instructions that say ‘you can stop’ I would expect that any court, should it be an issue, would accept that by stopping their emergency vehicle to provide care they were acting in the course of their duties so if they were injured in the course of that work they could still expect to receive workers compensation.
If they turn out because they have ‘taken on the duties of the now defunct, volunteer fire brigade’ that must imply some level of cooperation with the police and emergency services, ie someone has to have called them out. One can imagine lots of reasons why a mine company would make its ERT available in those circumstances, it makes them a good corporate citizen, maintains good will, maintains the interest and willingness of people to join the ERT as they know they are contributing to their community and the people they are helping are their employees and the community they depend upon. In that case responding is clearly part of the ERTs duties and should there be any liability it would fall on the mine. Provisions that are designed to remove personal liability such as the Volunteer and Food and Other Donors (Protection from Liability) Act 2002 (WA) and the Fire and Emergency Services Act 1998 (WA) s 37 don’t apply as the members of the ERT are employees, not volunteers. Equally the good Samaritan provisions won’t apply as they are turning out as part of their work, but again that doesn’t matter as any liability (if any) would fall to the mine.
If the mine entered into an agreement with the Department of Fire and Emergency services to provide emergency services to help the Department fulfil its obligations under the Fire and Emergency Services Act 1998 (WA), or entered into an agreement with the local council to provide bush fire fighting services (Bush Fires Act 1954 (WA) ss 41 and 42A) then the mine could rely on s 37 of the Fire and Emergency Services Act 1998 (WA) which says ‘a person does not incur civil liability for anything that the person has done, in good faith, in the performance or purported performance of a function under the emergency services Acts’. Note that it does not say ‘natural’ person so that would include a corporation. Such an arrangement would be necessary, or at least implied, if the rescue service is being notified of triple zero calls requesting assistance and/or the mine has ‘taken on the duties of the now defunct, volunteer fire brigade’
The ERT members are employees when their responding to an emergency or if they are driving the truck in the course of their duties and come across an accident so the Occupational, Safety and Health Act 1984 (WA) and/or the Mines Safety And Inspection Act 1994 (WA) and the Workers’ Compensation And Injury Management Act 1981 (WA) will all continue to apply in any of the circumstances described above.