This question relates to the Facebook group ‘NSW Incident Alerts’.

To be up front, even before I identify the question, let me make three disclaimers.  First: I subscribe to, or ‘like’ the group NSW Incidents Alerts. It’s in effect a ‘rebroadcast’ service that takes warning and news from the various emergency services (police, ambulance, Fire and Rescue NSW and NSW RFS, perhaps others) and resends them to the various subscribers.  According to their Facebook page they have 325 000+ ‘likes’ so they have a substantial audience.  As I say, I am one of that 325 000+.

Second: internet law is its own growing field of law and not my area of expertise which I claim is the law relating to emergency services.  Here there is an overlap but I’m not up to date on the case law and legislation specifically about internet services so I’m going to answer this question with reference only to general principles of law and the law of emergency services.

Third and finally: the question, below, relates to any potential liability the administrators may have for rebroadcasting the various warnings. My conclusion is that there is no real risk of the site managers being exposed to legal liability, but just as I will argue that no-one would or could rely on them in a legally relevant way, so too they should not rely on this.  I am answering the question I have been sent with all the limitations that must involve (eg I don’t have access to all the relevant facts); I am not giving legal advice to NSW Incidents Alerts so just as someone should not rely solely on them for hazard warnings so to, no-one should rely on this generic discussion paper.

Now to the question:

There is a page on Facebook called ‘NSW Incident Alerts’. They post, obviously, about incidents across NSW. They are not a government agency, nor do they pretend to be. Basically, they regurgitate information about fires, floods etc found through other sources and advise people about these incidents.

Tonight I asked them why they do not always refer people to the relevant agencies in their incident posts, so that the public can go to the appropriate source for further information … I asked if they (the page admins) were concerned that they may get into legal trouble if someone who accesses their page finds themselves in danger as a result.

For example, tonight I drew their attention to a post from a lady seeking information about a near-by fire. The post had gone unanswered for 3 days. Admittedly, the woman said that she had looked on the RFS website and saw nothing, but not only was she not then referred to the agency via another means (such as the 1800 number), but she was ignored. If this woman unfortunately found herself trapped by that fire, could she sue the page admins?

So, are they liable?

Let us accept this is a new or novel fact situation.  This is not like a car accident when we know car drivers owe a duty of care to other road users, or schools where teachers owe a duty of care to their students.  This is not one of the run of the mill well established situations where one can show a duty of care exists.  When considering a new or novel fact situation one has to consider multiple factors, what the courts have called the ‘salient features’ of the relationship.   In Caltex Refineries v Stavar (2009) 75 NSWLR 649, Allsop P in the NSW Court of Appeal identified a list of relevant salient features.  He said (at [102]-[103]):

… If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.

These salient features include:

(a)          the foreseeability of harm;

(b)          the nature of the harm alleged;

(c)           the degree and nature of control able to be exercised by the defendant to avoid harm;

(d)          the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;

(e)          the degree of reliance by the plaintiff upon the defendant;

(f)           any assumption of responsibility by the defendant;

(g)          the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

(h)          the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;

(i)            the nature of the activity undertaken by the defendant;

(j)           the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;

(k)          knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;

(l)            any potential indeterminacy of liability;

(m)         the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;

(n)          the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;

(o)          the existence of conflicting duties arising from other principles of law or statute;

(p)          consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and

(q)          the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

He went on to say (at [104]) that the list is not complete nor is it essential that every one of the factors listed in (a) – (q) be considered in every case; it all depends upon the circumstances and the alleged negligence.

An action in negligence is always very fact specific and the plaintiff has to show that there was something the defendant could have done, or should not have done, and that it would have made a difference.   In deciding what a reasonable response to a risk is, if there is any duty to respond to the risk at all, the court must consider:

(a)          the probability that the harm would occur if care 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 2002 (NSW) s 5B(2)).

Finally if the court finds that there was a duty and that the response to the risk was not ‘reasonable’ it must consider whether any breach caused the plaintiff’s damage.  In so doing the court must consider whether the negligence was a necessary condition for the damage and then whether ‘it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused’ (Civil Liability Act 2002 (NSW) s 5D).

So our assumption here is that someone receives the rebroadcast of a fire warning.  The warning is issued by the RFS and resent by NSW Incidents Alert.  Someone receives that and sends a message back asking for more detail about the fire.  They get no answer and sometime later they are burned out.  Can they sue?  (Remember anyone can sue just by going to the court house and filling in the form; the real question is ‘is that likely and is there as a matter of law any potential liability?’).

First of all let us look at Allsop P’s list from (a) – (q):

(a) the foreseeability of harm;

Let’s assume that it is foreseeable that if someone doesn’t know a relevant fact about the fire that they may make a poor judgement and not leave when they should.  We know the fact in question is relevant or material as they asked it.

(b) the nature of the harm alleged;

Here the nature of the harm alleged is that they got burned out, but the incidents alert team, no more than the RFS (assuming it’s not an escaped back burn) did not cause the harm by fire.  The harm alleged is some lack of information.

(c) the degree and nature of control able to be exercised by the defendant to avoid harm;

The harm is being ‘burned out’.  The Incidents alert team are not in charge or in control of the fire.  They are in control at best of their website.   The lack of information did not cause the harm, the fire did (we’ll return to that on causation).

(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;

In these days of shared responsibility and the media messages from the emergency services and the multitude of forms of warning, any suggestion that the plaintiff is vulnerable to the effect of fire, that they depended solely on this forum to give them information is unreasonable.  If their question was not answered there were alternatives to go to.

(e) the degree of reliance by the plaintiff upon the defendant;

There could be no reliance by the plaintiff.  This is not a situation where the plaintiff has to rely on the defendant as only the defendant can act to protect them or has promised to do so.  The NSW Incident Alerts is pretty clearly just resending official messages.

(f) any assumption of responsibility by the defendant;

The NSW Incidents Alert team assume no responsibility for the people who subscribe to their page.

(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

There is no relevant proximity.  There are some 325000 subscribers and the team cannot know who they are or where they are.  The management team are not creating the risks of fire, or flood, or accident or anything else they rebroadcast.

(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;

The relationshop is tenuous at best.

(i) the nature of the activity undertaken by the defendant;

The defendant’s activity is to rebroadcast warnings only.  They don’t write them and they don’t manage the information that goes into them.

(j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;

The management team is not creating the danger or hazard.

(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;

The fact that the plaintiff has asked a question could suggest that there is actual (if they read the question) or constructive (if they should have read the question) knowledge so that might suggest that an answer should be given, but the answer would be ‘contact your local emergency services’.

(l) any potential indeterminacy of liability;

The class of people looking at there site is infinite.  It’s not only the 325 000 subscribers but anyone can find their page and look at it.  They can’t know who the people are, anything about their state of mind or preparedness, where they live, what information is relevant etc.  They can’t be liable to everyone who uses the internet.

(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;

The only suggestion is that they should say to people ‘look at the official website’ or ring the information line but there’s no guarantee that would avoid the harm of being impacted by fire.

(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;

A duty to respond to people and to take responsibility for them would detract from their responsibility to look after themselves

(o) the existence of conflicting duties arising from other principles of law or statute;

There are no conflicting duties as the management team for NSW Incidents Alerts are not operating under any statute.

(p)          consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and

(q)          the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

I’m not sure that (p) or (q) are particularly relevant.

Even so, in the circumstances, given that NSW Incidents Alerts doesn’t claim to be anything other than a consolidation service it’s akin to people sitting in a coffee shop saying ‘have you seen the latest from the RFS?’ It doesn’t claim to be a sole authoritative source, it does not offer to provide individualised warnings, and no reasonable person would rely solely on them as their source of information.  I have no doubt that there is no way they would be found to owe a duty to answer questions seeking particular advice in relation to a particular fire.

Let us assume, however, that I’m wrong.  That there is a duty to answer a question about a specific fire, what does the reasonable defendant do in response.   Here we consider

(a) the probability that the harm would occur if care were not taken,

How probable is it htat the person will fail to take steps to either prepare to defend their home or leave if their question is not answered?  Given the extent of other warnings, the abilty to look out the window and see whether there are helicopters and fire fighters around, the ability to turn on a tv or radio or to make other inquiries, I would suggest it’s a very low probability that failure to anwer the question would lead to harm.

(b) the likely seriousness of the harm,

We can accept that the harm would be severe.

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

The NSW Incidents Alert facebook page says the page is run by 5 volunteers across the state.  They are not actually in the various coordination centres, they presumably have no more information than anyone else.  Someone asking for specific information could not get it from them.  So answer the question would be an undue burden, but referring them to the RFS Helpline or webpage, that would not be so onerous but actually monitoring the traffic to find the question would be.  They don’t claim to be a two way street, the broadcast information.  Asking them to have in place some method to monitor questions coming to them 24 hours a day would be far above anything they could do, or claim to do.

Equaly they may not need to as there are other subscribers who could pass that information on, that being the nature of the web and social media.  So it may be appropriate not to manage them on the basis that their audience provide an effective monitoring service.

(d) the social utility of the activity that creates the risk of harm. (Civil Liability Act 2002 (NSW) s 5B(2)).

There is a great deal of social utility in their service and that needs to be considered.

In Vairy v Wyong Shire (2005) 223 CLR 422Hayne J said (at [125]) ‘The inquiry into breach… must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be “nothing”.’  So it may be foreseeable that if someone asks about a fire, and the management team don’t say ‘please contact the RFS directly’ that there could be some harm, but that risk may be so low (as I suggest it is) and the cost of actually trying to put in place a system to monitor incoming correspondence 24 hours a day so expensive and pose such a risk to the socialy useful purpose, that the appropriate response is to say ‘there is a risk but there is nothing we can reasonably do about it’.

Assume, again, that I’m wrong.  Then the issue becomes did the failure to answer the question cause the harm?   Remember now we have to ask whether the failure to answer the question was  ‘necessary’ condition for the harm; I would suggest not.  The necessary condition was for the person, if they didn’t make any other inquiry, failing to look after themselves.  But even if it was there are good reasons to argue that it is not appropriate to extend liability to NSW Incidents Alert.  First their actions are consistent with a resilient community, shared responsibility and the National Strategy for Disaster Resilience.  They are creating a community and sharing official warnings and news.  That is they are assisting the emergency services to get their message out (I’m not suggesting they have the services blessing, they may nor may not, but that is what they are doing).  National policy encourages self help to relieve the burden from the state.   Shared responsibility includes the idea that the person asking the question is responsible for themselves.  They may be demonstrating this by asking for more information but if they don’t get an answer they are not accepting responsibly if they don’t make other inquiries on their own initiative.   If for whatever reason they are unable to do so eg because they are intellectually impaired or otherwise vulnerable then there are others who are closer – more proximate – who would have a duty to look after them, not the NSW Inicdents Alert team who can’t know anything about them.

In summary, in the circumstances described, it is my view that;

  1. NSW Incident Alerts would owe no relevant duty of care to ensure that questions coming back to what is a broadcast service are answered;
  2. Even if they did the relevant response may be to do nothing as they simply cannot provide that service but the social value of what they are doing still justifies the risk; and
  3. Even so I do not think the failure to answer the question on that website would be the legal cause of any harm.

So where a question for more information is asked but not answered with advice ‘please ring the RFS’ could the operators of this Facebook page be sued and would they be liable?  As a lawyer I’ll not say ‘never’ but in my view there is no real risk of the site managers being exposed to legal liability,

What’s really interesting is this belief that the agencies or the government have to do something to rescue everyone (see also ‘Firefighting and WHS in South Australia’ (November 14, 2014)) when that is simply not the case.  The emergency services want to say and do say ‘in extreme events, whether floods or fires, people cannot expect the emergency services and we cannot deliver personal warnings’ but yet, this unfounded fear that everyone will, and does, get sued leads to the sort of fear that if a question isn’t answered immediately there will be legal liability.

I agree that failure to warn arguments could be easier to run than failure to respond (see ‘The emerging legal issue of failure to warn’ (2012) 27(1) Australian Journal of Emergency Management 52-55 and ‘Litigation for failure to warn of natural hazards and community resilience‘ (2008) 23(2) Australian Journal of Emergency Management 9-13) but since I wrote those papers there hasn’t been a rush of cases.  It was presumed it would be an issue in the Canberra fires litigation but at the end of the day it was not; and in the Black Saturday litigation the claim that police were liable for failing to exercise a statutory duty to warn was dismissed (see Matthews v SPI Electricity (No 2) [2011] VSC 168 and ‘‘Black Saturday’ litigation’ (May 11, 2011).

In this context if someone reads an alert, sends a question for more detail but gets no answer and takes no further action to look after themselves, that’s their own lookout.  If anyone has a legal obligation to take steps to protect them, or warn them, it won’t be NSW Incidents Alert.