The NSW SES is the ‘combat’ agency for managing the response to floods and storms (see ‘The NSW SES is the combat agency for floods and storms – but what is a flood? or a storm?’ (October 6, 2015)) but what happens if there is no storm and the SES still responds? That is the essence of this question from a NSW SES duty officer.

I have some questions relating to what the SES is allowed to do when there is no “Emergency” relating to our combat roles of Storms, Flood Tsunami. A common example is that a call is received directly by SES on a calm day to attend a “tree down” on a house (no significant structural damage reported). My understanding is that if the tree down does not relate to a Storm, Flood or Tsunami the SES have no responsibility to attend.

My question relates to what happens if an SES unit does decide to send a team out to complete a job such as this when according to the State Emergency Service Act 1989 (NSW) there is no “Emergency” as defined in the Act?  If a team was to attend and a fatality was to occur of one of our members, would the corner question why the SES was in attendance to something that is outside of our combat role?

Having read the Fire Brigades Act 1989 (NSW) s 7 my understanding is that FRNSW would actually be the combat agency for this incident?

General authority to protect persons and property

(1) The Commissioner is authorised to take measures anywhere in the State for protecting persons from injury or death and property from damage, whether or not fire or a hazardous material incident is involved.

(2) In the case of fire, it does not matter whether or not the persons are, or the property is, within a fire district.

It appears the SES act does not have a similar provision.

If FRNSW decided to refer this job to the NSW SES, the SES would be obliged to attend as it is a function of the SES (State Emergency Service Act 1989 (NSW) s 8(1)(g)):

 … to assist, at their request, members of the NSW Police Force, Fire and Rescue NSW, the NSW Rural Fire Service or the Ambulance Service of NSW in dealing with any incident or emergency.

If the SES tasks a team to a job that in reality should have been given to FRNSW and a facility occurs – my assumption is that the book would be thrown at NSW SES and not FRNSW as NSW SES

1) Failed to pass on the job to FRNSW .

2) Sent a team to a job that according to the SES act is not our responsibility.

I guess I am asking what the consequences would likely be if my worst-case scenario were to occur and who would be held responsible?

‘Emergency’ is defined by the State Emergency and Rescue Management Act 1989 (NSW) s 4 as ‘an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which … requires a significant and co-ordinated response’.   The situation described above is not an emergency for the purposes of that Act.

The State Emergency Service Act 1989 (NSW) does not define ‘emergency’ or given any indication of when a flood, storm or tsunami becomes an emergency.

The combat agency is ‘the as the agency primarily responsible for controlling the response to a particular emergency‘ (State Emergency and Rescue Management Act 1989 (NSW) s 3)).   For “a “tree down” on a house (no significant structural damage reported)” there is no ‘emergency’ and no ‘agency identified in the State Emergency Management Plan’ to deal with it. A ‘“tree down” on a house (no significant structural damage reported)”’ is no more an emergency for Fire and Rescue NSW than it is for the SES.   The fact that the Commissioner is authorised to take action in response to an emergency does not mean that he or she is required to do so nor does it make FRNSW the ‘combat agency’ for the described event.

The ‘combat agency’ ie the person ‘primarily responsible for controlling the response’. In this case that has to be the occupier of the property. They could call a tree lopper, their insurance company and anyone else they can think of, including the SES. If the SES is called it is being asked to help – to be a helpful neighbour. There is clearly no obligation to attend. It is not a function of the SES to attend and remove a tree that fell because its roots were rotten any more than it is a function of the SES to attend and clean a person’s gutters, help them fix their roof or fix a broken window.

Having said that SES units do many things that are outside the functions of the SES such as assisting with community events by marshalling the parking or people and who knows what else. There are good reasons to do this, it helps build good will, it may assist with recruiting, it may be considered useful training and, fundamentally, it is a bunch of people who are willing to volunteer their time for their community doing just that.   I can see the argument that if the SES unit is spending time and resources on activities that are not a ‘function’ of the SES an auditor might become concerned and this would be the case the further the activity is separated from the functions. Where that line is drawn is not clear and to a certain extent has to be a matter for Unit Controllers.

I have difficulty believing that anyone would think that the local SES could not make a legitimate decision to help in the circumstances described.   The event may not be an ‘emergency’ for the community or the state, but it is an emergency for the occupier. If they, for whatever reason, are unable to make arrangements to secure their property and prevent further damage from the weather then the SES may want to do so. Remember it is a function of the SES ‘to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis’ (s 8(1)(aa)). If a house has a tree fallen on it, it may be subject to more damage should a storm arise?

Let us assume that turning out to assist in the circumstances described, whilst not performing a function of the SES is not so far removed from the SES core function so that it is not an inappropriate use of the SES resources.   We can then turn to the specific questions.

If a team was to attend and a fatality was to occur of one of our members, would the corner question why the SES was in attendance to something that is outside of our combat role?   

Indeed. Coroners don’t investigate all deaths. Coroners investigate deaths in certain circumstances (such as deaths in custody) or when ‘if it appears to the coroner concerned that the manner and cause of the person’s death have not been sufficiently disclosed’ (Coroners Act 2009 (NSW) s 27). When investigating a death the Coroner a coroner may ‘make such recommendations as the coroner or jury considers necessary or desirable to make in relation to any matter connected with the death…’ (s 82).   If we assume that a fatality occurs in the circumstances described, and the Coroner decides to hold an inquest, he or she could and would investigate all the circumstances of the death. The mere fact that the SES did not have a specific function to attend such a task is hardly like to be a contributing factor to the death given the task is very much an SES task – the only issue being whether or not there was a storm. The situation may be different if the fatality arose because the SES were engaged in fire fighting but this scenario is not so far removed from the key tasks of the SES.

If a fatality occurs the Coroner will investigate whatever he or she thinks is relevant and it will make no difference whether or not one can point to a paragraph in s 8 as the function being performed.

If the SES tasks a team to a job that in reality should have been given to FRNSW and a fatality occurs – my assumption is that the book would be thrown at NSW SES and not FRNSW as NSW SES

1) Failed to pass on the job to FRNSW .

2) Sent a team to a job that according to the SES act is not our responsibility.

As argued above I don’t think the FRNSW are the combat agency, no-one is. There is no combat agency for this any more than there is for a homeowner that has a broken window, or a damaged roof. It’s simply not an emergency.

If there is a fatality I can’t see that either of those aspects will be an issue.   It would be an issue if for example the SES received a call to a fire and didn’t pass it on to the fire service but this job is much more akin to an SES task.

If there is a fatality the issue will be what caused the death. Was the person trained, supervised, what steps were in place to ensure their safety etc. Sending a team to a job that is not formally an SES responsibility is hardly an issue and will not determine the issue of liability.

Equally if you assume that it really should have been given to FRNSW and they in turn referred the job back to the SES that would make no difference to a fatality inquiry. The issue would still be what was happening, who was actually doing what, who was trained to do what etc.

Conclusion

Attending a tree that has fallen on a because of poor maintenance is not an SES responsibility. But if they do attend then the obligation upon the SES is, as with any task, to take care to protect the members and ensure the job is done safely. If a person died during the task, whether an SES member or someone else, the issue will not be ‘was this an SES job’ rather it will be ‘what happened and why?’   Issues of training and safety management will be relevant and the notion of which was the appropriate agency to respond could be relevant if the SES were doing something that they were not trained to do (such as fire fighting). The SES are trained to deal with trees on homes so the question of whether the tree fell because of storm or some other cause is unlikely to be relevant to any inquiry into a tragedy that occurs during the response.