A firefighter with the NSW RFS raises this disturbing scenario:

I am a senior deputy in an RFS brigade. The area that we respond and to is in the middle of what Police describe as an ice epidemic. Today we had a job (illegal burn) that should have been a simple job – attend extinguish depart. Not the case, from the time I stood out of the appliance we were abused and threatened. We informed the resident of the rules and advised we were extinguishing however he refused us entry. Long story short he went to pick up a bar off the ground and became very aggressive I In turn removed the crew requested police and staged down the road. The question I have is NSW Police and NSW ambulance have access to warnings on the location they are responding to and quite often stage until other resources are available to deal with a situation. However in the RFS we are blind to this information. If the information is available to other emergency services is there a duty of care that RFS should have access to the same information to protect its members? What’s your thoughts?

Don’t get me wrong situational awareness is vital in situations like this however America now sees fire fighters being shot and stabbed whilst doing their job. Is there a failing in WHS to provide a safe workplace if the information is already known.

This raises a number of issues depending on the facts and circumstances in mind.

Start with the scenario where police are on scene, conducting an operation and require fire brigade assistance. The Work Health and Safety Act 2011 (NSW) says that a person conducting a business or undertaking (a PCBU), in this case the police, have to ensure that their work activities do not put the health and safety of others, the fire fighters, at risk (s 19(2)).   If it’s a police operation then that is their work and so they would have a duty to warn firefighters of the risk and direct them to perhaps standby at a different location until called etc. That would be equally true if the police were calling for help from a plumber, electrician or council dog handler.

What if it’s not a police operation but, say an explosion? Police are on scene and require the fire brigade to attend.   In this scenario it’s not ‘work carried out as part of the conduct of the business’ of policing that is imposing the threat, but the police are aware of the risk. There could be a common law duty, such that it would be negligent for police not to ask the control room to notify the brigade of any risk when the call is made. Here we can consider that the fire fighters are vulnerable, they are driving to a high risk environment but don’t know it. The police could easily do something about it, that is give them notice and perhaps some directions. There is nothing to stop them passing on the information.   If the fire fighters then drove into danger I think it would be certainly possible to argue that there had been a breach of a duty of care by police in the circumstances.

Step back one position. There’s been a reported explosion at premises police believe are used in the manufacture of drugs and they think the persons there may be violent. Police are proceeding to the scene and can anticipate both that the fire brigade will be required and that they are probably on their way. That situation is probably no different to the second, above. The police could notify their control centre to ensure the brigade are on their way (never assume someone else has called the emergency services) and could again ask them to stand by somewhere else whilst police ensure that the scene is safe to enter.

But what if the fire starts and someone calls triple zero and asks for the fire brigade and the police don’t know anything about it.   Should the police have somehow logged their concerns on some database for the fire brigade to access?   That is much more problematic. If we assume the police had sufficient evidence of illicit drug activity in the premises they would have done something about it, it must follow that all they have are suspicions that may be supported by poor, or excellent, intelligence but still not enough to actually take action.

The police may well not want to record for public information their suspicions. Members of the fire brigade may seem themselves as something other than ‘public’ but from the police perspective they are not. The first problem is that making that information available may compromise their ongoing investigation. Next, where do you draw the line, notifying plumbers, electricians, Australia Post, anyone who might have cause to go to the house?   If you are a homeowner and find you can’t get services to come, or the fire brigade are delayed, because there is a suspicion that your home is used as a drug lab, you may feel very annoyed if the suspicion is wrong.   Perhaps it was the last tenant, perhaps the information is just wrong.   In any event, even if you are running a drug lab you’re still entitled to receive your mail. So police cannot go around sharing suspicion to the detriment of citizens just because it seems like a good idea.

Then even if it could be argued there is a duty of care one has to consider what is a reasonable response to that risk. How could the information be shared? Consider that my correspondent has now been to this address and been threatened, does the RFS have a system in place to warn other brigades or members should they be called let alone other services.   There is, I would suggest, no way for the RFS to warn to ambulance service if they receive a triple zero call to the address.

The ‘emergency services’ are not a comprehensive whole and members of the RFS are not police officers. So it can’t be suggested that there is some general obligation upon the police to share confidential information with other emergency services just because they are the emergency services.

From a WHS perspective, it was only in the first scenario that it was the police work that exposed others to a threat and thereby could give rise to an obligation upon police under that Act. But the RFS is different. The RFS has an obligation to look after its fire fighters and the RFS now has that information and it has not obtained that by any breach of confidence. An RFS brigade turned up and was threatened. There could have to be an obligation on the RFS to try to record that information to ensure that the next brigade called to that address is warned of the risk and perhaps to call police for assistance before proceedings. Whether there is such a duty depends on whether or not it is reasonably practicable to keep and record that data which in turn depends on the data recording processes available, the likely risk of the event occurring and of course conflicting duties that is the duty to actually turn out to a fire and try to contain it as soon as possible which can be delayed whilst waiting for police.   All that needs to go in the balance.

My answer is therefore that there can be no duty on police to share the sort of information sought with the RFS on a just in case basis. There would be a duty if police are the one’s calling the RFS to ask them to assist with police operations, and there could be if police are aware of a particular risk and are responding with the RFS. There can’t be if the RFS have been called and the police don’t know of the event.   The RFS on the other hand should consider how it’s going to record that information for the benefit of its firefighters bearing in mind that just because it happened once doesn’t mean it will happen again and that sort of information could become quickly out of date or wrong.