A correspondent poses a scenario that was discussed:

… during safety training at the research institution where I am currently studying.

In this scenario, a researcher working in a laboratory was subjected to a rather nasty accident involving chemical exposure and laser burns requiring medical assistance. Upon arrival of the ambulance access to the patient was delayed while the laboratory was cleaned up.  The explanation given by the safety training instructor was that the institution in question (which wasn’t named) could deny access to the emergency services.

Though, even with a basic understanding of emergency law I fail to see how this could possibly be the case.  Is this indeed true, or was he just trying to scare us?

Further to the above question.  I would have thought that delaying medical aid in such a manner – for the purposes of mitigating perceived liability under WHS legislation (perhaps to cover deficiencies in workplace practices prior to the accident), with such a callous disregard to the safety of the effected individual, would be exposing that institution to criminal liability.

Unless the institution in question is a secret commonwealth establishment (see Responding onto defence areas (June 1, 2014)) then the state laws will apply.  Depending upon which state you are in, the ambulance service may have a right to force entry (see for example Emergencies Act 2004 (ACT) s 34; Ambulance Services Act 1991 (Qld) s 38; Health Care Act 2008 (SA) s 61; Ambulance Service Act 1982 (Tas) s 14A).  Even in those states where ambulance officers do not have an express power to force entry (New South Wales, Victoria, the Northern Territory and Western Australia) others do.

Given this is ‘chemical exposure’ it may well be a hazardous materials incident which would give the fire brigades a power to force entry.  Legislation in most, if not all, jurisdictions would also give police a power of entry in an emergency (see for example Law Enforcement (Powers and Responsibilities) Act 20002 (NSW) s 9).  The common law would also extend the power of entry to police, fire brigades and ambulance personnel. In Kuru v State of New South Wales [2008] HCA 26 the High Court said:

The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire-fighters, police and ambulance officers will often invoke application of that principle.

In short, unless the establishment is a commonwealth facility and there is a valid law of the commonwealth that would allow them to deny entry then no, the institution can’t deny access to the emergency services.

Under Work Health and Safety laws a Person Conducting a Business or Undertaking (a PCBU) must have in place emergency plans and procedures and must give effect to them should an emergency occur (see for example Work Health and Safety Regulation 2011 (NSW) rr 42 and 43).    Failure to allow access by the emergency services (either an ambulance or hazmat team if that is what required) would not be consistent with any reasonable emergency procedure or the PCBU’s primary duty to ensure the health and safety of a person at work (Work Health and Safety Act 2011 (NSW) s 19).

Nor can the PCBU take steps to mitigate ‘perceived liability under WHS legislation’.   Where there is a ‘notifiable incident’, which includes an incident that causes a serious injury or an ‘uncontrolled escape, spillage or leakage of a substance’ then this is a ‘notifiable incident’ (Work Health and Safety Act 2011 (NSW) ss 35 and 37).   The PCBU ‘must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred’ (s 38).  The PCBU ‘must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs’ (s 39).  The scene may be disturbed to rescue the injured or to make it safe but any attempt to cover up the event will be evident.  If the worker has to go to hospital and reports what happened then it will be clear that a notifiable incident did occur and if it is not reported, one can imagine the WHS regulator taking a ‘dim’ view of the PCBU’s response.

‘Delaying medical … with such a callous disregard to the safety of the effected individual’ would be exposing that institution to criminal liability under both WHS law and general criminal law.  For example depending on all the facts they may be guilty of an offence such as manslaughter (should the victim die), ‘Failure…to provide necessities of life’ (Crimes Act 1900 (NSW) s 44); negligently causing grievous bodily harm (s 54) and no doubt other offences depending on the jurisdiction and the circumstances and motivation.

A callous disregard for the rights of others can also lead to an award of ‘exemplary damages’ in a civil case.  Normally damages are calculated by the plaintiff’s losses and are designed to put the plaintiff in the position he or she would have been but for the accident.   Australian courts do not like exemplary damages, that is damages over and above the plaintiff’s losses as they are a ‘windfall’ for the plaintiff and it is up to the criminal law, not the civil law, to ‘make an example’ of the defendant and to impose punishment. Even so exemplary damages can be obtained ‘in cases of conscious wrongdoing in contumelious disregard of the plaintiff’s rights’ (Gray v Motor Accident Commission (1998) 196 CLR 1, [8]-[20] (Gleeson CJ, Mchugh, Gummow and Hayne JJ)).

A person who intentionally denied aid to an employee in order to try to cover up a serious industrial accident could well find themselves open to the claim of ‘conscious wrongdoing’ and a ‘contumelious [that is “scornful and insulting”] disregard of the plaintiff’s rights’ and so face these extra damages which one would not expect the insurer to cover.

Conclusion

Assuming this is not a Commonwealth establishment with a specific law that would allow them to exclude the state services then no, they cannot exclude the emergency services. Yes, refusing or delaying aid is likely to see the PCBU guilty of offences under both Work Health and Safety and the general criminal law.  Such action may also expose the PCBU to an award of exemplary damages. Planning to react in the way suggested in the scenario would not be a good plan.

POSTSCRIPT

In response to the post, above, there have been comments here and via FaceBook about the need to keep paramedics or others out of the scene for their own safety, and the reference to ‘clean up’ may well mean using experts to make safe a dangerous site.  That’s all relevant but was not how I understood the question.  I took ‘deny access to the emergency services’ to mean the ability to deny access to the facility, that is to lock them out, as opposed to the ability to warn them of danger and to cooperate to resolve the issue.

If the site is hazardous then it is appropriate for the PCBU to warn the paramedics and to tell them the situation is being made safe.  I would imagine (or hope) that the ambulance service has a procedure in place when faced with a hazardous material incident not to enter and call the fire brigade.  Fire brigades when they turn out will no doubt talk to the laboratory owner and between them formulate a plan.  Ideally if the facility is hazardous there have been discussions with the emergency services and the body responsible for local emergency management planning long before an incident to develop a local emergency plan (see also Workplace Health and Safety Regulation 2011 (NSW) r 361).   The Fire Brigade may be the relevant ‘combat’ or ‘control’ agency but that doesn’t require them to send in fire fighters if the local emergency plan is working well.   But I wouldn’t see any of that as denying access to the emergency services, rather that is including them in the response.

So my answer, above, has to be read in that context.  It was not referring to a case where a hazardous chemical has been spilled and it is unsafe for rescuers to enter so that aid is delayed whilst the site is rendered safe by the facilities expert team.  I don’t see that as denying access to the emergency services who are also on scene.

To reiterate, I took ‘deny access to the emergency services’ to mean some claimed right to simply operate without them and to deny them entry to the premises (eg locking the front gate).  That can’t be lawful.