This question comes from a member of the South Australian Country Fire Service:

Approximately 8 years ago a CFS Group put an OHS&W order on the CFS due to a number of GRN Radio black spots within their response area. They claimed (in part) that CFS/ State Government had a duty of care to provide a safe working area for volunteers responding to emergencies in this area which includes communication between trucks and communication back to Adelaide Fire should the emergency button be pressed on their radio. I believe the court ruled in favour of the CFS/State Government and advised the Group that if they were aware of the Black spots and should conditions dictate that these areas are unsafe to fight fires in then they should not proceed due to the known risk. The concern the current Group Officer has is that he may be held liable for not sending in crews to fight a fire where someone is injured or killed or structures are lost as a result of his order not to proceed due to the lack of reliable communication. Conversely he is also concerned that if he proceeds to send crews in to an area of a known GRN black spot and a fire fighter is injured or killed could he also be held liable?

We don’t need to go into detail about what an OHS&W order is (or was) or what jurisdiction any particular court had.  We can infer that there was a dispute, presumably the CFS wanted to require the government to fix the black spot, not surprisingly that was rejected (it costs a lot) with the relevant tribunal making the point that if a particular risk was too high they should not go in.  Now the group officer is afraid he or she will be damned either way.

A group officer is elected by representatives of brigades within the group (Fire and Emergency Services Act 2005 (SA) s 70).  A group officer is a volunteer.

When we talk about liability that can mean many things.  In this context we could be referring to liability to pay damages in negligence or liability for criminal prosecution for breaches of the Work Health and Safety Act 2012 (SA).  If we’re talking about negligence any claim would necessarily be against the state of South Australia.  The obligations if any are owed by the CFS but it acts through its officers and members. They are the hands and eyes of the CFS so the CFS will be vicariously liable if there is any negligence.

Fire and Emergency Services Act 2005 (SA)

The notion that it is not the member that is liable, but the state, is reinforced by the Fire and Emergency Services Act 2005 (SA)s 127 which says:

(1)       No civil or criminal liability will attach to a member of an emergency services organisation, a person appointed or authorised to act under this Act by the Commission, or other person for an honest act or omission—

(a)       in the exercise or discharge, or purported exercise or discharge, of a power or function under this Act; or

(b)       in the carrying out of any direction or requirement given or imposed at the scene of a fire or other emergency.

(2)       A liability that would, but for subsection (1), lie against a person lies instead against the Crown.

Section (1) says that the member is not liable, section (2) says that the State may be.

In Inspector Mayo-Ramsay (Workcover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW  Fire  Brigades) [2006] NSWIRComm 356 the New South Wales Industrial Commission found that s 78 of the Fire Brigades Act 1989 (NSW), which says that a ‘matter or thing done … in good faith’ does not subject the fire fighter ‘or the Crown to any action, liability, claim or demand’ did not apply to criminal prosecutions under the then Occupational Health and Safety Act.  Note however that the South Australian Act is different, it says ‘No civil or criminal liability will attach …’   So the South Australian Act will apply to ensure that even if we’re talking criminal prosecution it’s not the member who will be liable, but the State can be.

So the first thing is that the group officer will not be liable to anyone for alleged negligence.  As they are acting as the CFS it is the CFS and ultimately the State of South Australia that would be liable.  A person can be liable for failing to perform their duties under work health and safety law but provided the decision is made honestly attempting to perform one’s duties under the Fire and Emergency Services Act the group captain is protected. The real issue is will anyone, including the state or CFS be liable.

Duty of care – to the people in need of rescue

No-one will be liable for ‘not sending in crews to fight a fire where someone is injured or killed or structures are lost as a result’.  There is a big difference between not rescuing people who are in danger through no fault of your own, and sending someone into harm’s way.   As has been said often enough there is no duty to rescue (Stuart v Kirkland-Veenstra [2009] HCA 15).

We have seen recently the ACT Court of Appeal confirm that the fire services do not owe a duty to individuals to come to their assistance (‘ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires’ November 3, 2014).  In Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales [2014] ACTCA 45 Jagot J said (at [340]):

If a person in the position of incident controller fighting a fire owed a duty of care to individual property owners to protect their property from damage, then there would be a real risk of the functions of the incident controller under the Rural Fires Act being distorted and impaired. There would be a real risk that the incident controller may favour the protection of private property over public property, or favour the protection of property over the safety of persons, or favour the protection of one property over another based not on an overall assessment of how best to control or suppress a fire but on the likelihood of a property owner suing or the value of one property compared to another. The effect of such a duty of care to individual property owners is potentially invidious. These are strong indications against the existence of any such duty of care.

The mere fact that the Group Captain knows that people or structures are at risk does not mean that he or she has a common law duty to attempt to rescue them.  Governments and their agencies are not liable for not protecting everyone from all foreseeable harm.

Apart from common law obligations the group captain has obligations under other laws, in particular the Work Health and Safety Act 2012 (SA).  The High Court in particular has, in recent times, been stressing that there can be no common law duty of care that would conflict with other legal obligations.

  • In Sullivan v Moody (2001) 207 CLR 562 the High Court held that police did not owe a duty of care to two men who were investigated for, but cleared of child sexual abuse allegations. The doctors that reported their suspicions, the police and the child protection agencies all had obligations to investigate the suggestions and it would be inconsistent with those obligations to impose a common law duty to protect the suspects from the adverse consequences of being investigated.
  • Just this week the High Court handed down a decision in Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon [2014] HCA 44. In this case the health service discharged a mentally ill man, Mr Pettigrove, into the care of his friend, Mr Rose, who was to drive him home to be cared for by his regular health care practitioner.  Along the way Mr Pettigrove killed Mr Rose and Mr Rose’s family sued.    The Mental Health Act provided that treatment for the mentally ill was to be delivered in the least restrictive way possible and that a person could not be detained under the Mental Health Act ‘unless the medical superintendent is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available to the person’. (Mental Health Act 1990 (NSW) (now repealed) ss 4 and 20; Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon [2014] HCA 44, [24] and [25]).   To impose a duty to protect Mr Rose from physical injury and his family from psychological injury would have imposed an obligation on the medical staff that was inconsistent with the mental health legislation.

The critical issue is ‘coherence’ the law can’t put people in a position where there are conflicting duties and where an alleged common law duty of care conflicts with a statutory duty, the common law must give way.   The Work Health and Safety Act requires that the CFS:

… ensure, so far as is reasonably practicable, the health and safety of—

(a)         workers engaged, or caused to be engaged by the [CFS]; and

(b)         workers whose activities in carrying out work are influenced or directed by the [CFS],

while the workers are at work in the business or undertaking. (Work Health and Safety Act 2012 (SA) s 19).

Workers includes volunteers (s 7).

To decide what is reasonably practical regard must be had to

(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. (Work Health and Safety Act 2012 (SA) s 18).

Here the risk is the risk of sending fire fighters onto the fire ground with known communication black spots and, without going through various coronial and Royal Commission reports, we can assume that this is dangerous and has certainly had or is likely to have tragic consequences.  One can weigh up the risk which includes taking into account the benefit that might be obtained (ie actually saving someone) but ultimately if the risk is too great, the only solution is to not go in.   There cannot be a common law duty to act that is inconsistent with the duties and obligations under the Work Health and Safety Act.

Breach of duty

Even if there was a common law duty of care, it would be a duty to do what is reasonable in the circumstances.

In considering what is reasonable a court has to consider

(a)       the probability that the harm would occur if precautions were not taken;

(b)       the likely seriousness of the harm;

(c)       the burden of taking precautions to avoid the risk of harm;

(d)       the social utility of the activity that creates the risk of harm. (Civil Liability Act 1936 (SA) s 32).

The harm is both the harm to people who need assistance and the harm to firefighters.  If the burden of taking precautions to save the people in distress is to risk fire fighters lives that may be such that no reasonable person would do that.  That will be confirmed by CFS training and doctrine.  If that is the case, even if there is a duty, there is no breach of duty by deciding a course of action is too dangerous to proceed.

There is simply no duty to rescue, or to die in the attempt.

Duty to the firefighters

The Group Captain ‘is also concerned that if he proceeds to send crews in to an area of a known GRN black spot and a fire fighter is injured or killed could he also be held liable’.  That’s a much more reasonable fear.

As noted the group captain will not be personally liable.  Firefighters killed or injured in the course of their duties will be compensated under the scheme set up in South Australia (‘Compensation for South Australian SES volunteers’ August 6, 2012 (which also discusses compensation for the CFS) and Workers Rehabilitation and Compensation Act 1986 (SA) s 103A and Workers Rehabilitation and Compensation Regulations 2010 (SA) reg 17).

Equally provided the group captain is honestly acting in the performance of his or her task the Fire and Emergency Services Act 2005 (SA) s 127 will apply.   To act honestly would require, in my view that the group captain/incident controller have regard to the factors listed in the Work Health and Safety and Civil Liability Acts (above) when making a decision to commit or withhold fire fighters.

Work health and safety

As a volunteer the group captains only obligations are:

(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. (Work health and Safety Act 2012 (SA) ss 28 and 34).

As the person in charge of the group the group captains decision to commit firefighters may impact upon their health and safety so he or she has to take reasonable care in coming to that decision and in doing so must comply with the polices and doctrine of the CFS that are intended to promote fire fighter safety.

Bad outcomes don’t prove negligence or lack of reasonable care

If there is a reasoned decision making process, where risks are assessed and careful decisions made, it does not mean there will be a successful outcome.  No matter how carefully you drive, you can still be in an accident.

A poor outcome does not mean a decision is not made in good faith or was negligent.  A risk assessment may suggest a risk to firefighters is small and the potential benefit of evacuating the primary school great, so a decision is made to go in.  If the fire fighters are killed it does not mean the decision making was flawed, or the decision wrong.  Just because a small risk occurs it does not mean it was not a small risk (the chance of winning the lottery is tiny, but people still win).

Provided the group captain/incident controller can identifying the reasoning process, and that it took into account the risk and benefit and came to a reasoned decision then they can rely on s 127 regardless of the outcome.

If they got the risk assessment wrong because they weren’t trained properly or the system allowed it to happen, eg by not ensuring that decision makers have people to seek guidance or to bounce ideas from, by not having a culture where anyone can say ‘stop; don’t go’ etc then that is a fault of the person conducting the business or undertaking (the PCBU), in this case the CFS.  If that’s the situation the CFS could be liable for not taking reasonable steps to ensure the safety of its firefighters, but not the group captain.

Honesty

The CFS does not have to lead direct evidence to show that the decision maker was acting honestly.  If all the circumstances show that the decision makers were doing their best to advance the purposes of the CFS, their actions will be found to be in good faith and s 127 will protect them (see ‘ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires’ (November 3, 2014); ‘Queensland Fire and Rescue not liable after factory fire’ (October 3, 2014); ‘Myer Stores Ltd v State Fire Commission [2012] TASSC 54 (24 August 2012)’ (August 24, 2012) and ‘Warragamba Winery Pty Ltd v State of New South Wales [2012] NSWSC 701’ (July 19, 2012)).

The protection of s 127 will also be lost if the decision is not an ‘honest’ one that is if the person making their decision is not genuinely trying to act for the purposes of the CFS and the community but to advance their own interest or some other improper motive.  If section 127 no longer applies a group captain could be liable under the Work Health and Safety Act if he or she did not take reasonable care in the management of the fire fighters and when making a decision to commit them to the fire ground.

A decision may not be an honest attempt to exercise one’s powers or functions if the motivation is a fear of legal repercussions and a belief that if they don’t commit firefighters they’ll get into trouble so they’re trying to ‘cover their arse’; or because they decide that work health and safety regulations are the nanny state gone mad and whatever happened to the days of firefighters being willing to risk their lives for others (see ‘Coroner condemns paramedics who refused to save drowning man in ditch ‘for health and safety reasons‘, Daily Mail 18 July 2013. That reference won’t be a consolation as the coroner did criticise the paramedics, but the coroner doesn’t make rulings of law and wishing back to the days ‘where men risked their lives to save lives of others’ is both sexist and out of touch with the view that we shouldn’t kill people in pointless rescues.  See also ‘Role of OHS legislation in rescue’ July 26, 2013; ‘Legal confusion leads to unnecessary death’ December 8, 2011 and Eburn, M.,‘Emergency services and health and safety’ (2012) 8(1) Crisis Response 10-13)).

In summary

In the circumstances described:

  1. The group captain will not be personally liable provided that whatever decision is made, to ‘go’ or ‘not go’ was made in an honest attempt to perform one’s duties and involved a conscious risk assessment.
  2. There is no duty to rescue people just because they are in danger so the chances of being liable ‘for not sending in crews to fight a fire where someone is injured or killed or structures are lost’ are virtually non-existent and indeed non-existent if there is a genuine concern for fire fighter safety.
  3. As a person with some command authority (Fire and Emergency Services Act 2005 (SA) s 70) the group captain has to ‘take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons’. Again that requires a risk assessment taking into account the factors listed in the Work Health and Safety Act 2012 (SA) s 18 and any CFS instructions and doctrine.
  4. Whether or not the actions were an honest attempt to perform one’s functions or duties can be inferred from all the circumstances.
  5. In the absence of an honest decision, eg one motivated by improper concerns about personal reputation, then there could be personal liability under the Work Health and Safety Act 2012 (SA).
  6. In no circumstances would the group captain be personally liable to pay compensation for death or injury to either the person they fail to rescue or injured or killed firefighters. That liability, if any, will always belong to the State.