This is a general question from a CFA volunteer but the answers must be applicable across all services. It is a very general question so it will have a very general answer:
The local CFA brigade is having a few issues with crews turning out without the correctly trained members. For example, the trucks have turned out without properly trained or qualified Crew Leaders or inadequate personnel numbers. Other members, especially higher ranking members are not seeing any issue with their actions and are dismissing any questions or concerns raised. Whilst these are clear breaches of the CFA’s policies, at what stage could these actions or decisions have legal implications for either the CFA as a whole, the local brigade or the members who made those decisions?
At what stage could these actions or decisions have legal implications? Well that really depends upon what happens. Imagine if a fire fighter is killed taking action in the absence of a ‘properly trained or qualified Crew Leader’ – then the question will be would a Crew Leader’s attendance have made a difference and if so why did the crew and the CFA allow the crew to turn out without the appropriate leader.
On the other hand, imagine a crew stand around and let someone die because there was no ‘properly trained or qualified Crew Leader’ present even though the task was easy and they felt and probably were quite competent to attend to it. It will not be comfortable to say ‘we let someone die because we had to comply with a rule we didn’t think was relevant in the context’. It is also uncomfortable, but justifiable, to say ‘we let someone die because the risk to our crew was too great’. For further discussion in particular of the coroner’s response when Scottish firefighters failed to rescue a woman trapped in a disused coal mine in order to comply with the fire services’ standing orders and procedures, see:
- Legal confusion leads to unnecessary death (December 8, 2011);
- Michael Eburn, ‘Enforcing safety with law – implications for incident controllers and fire agencies’ (Keynote). International Association of Wildland Fire, 12th International Wildland Fire Safety Summit, Sydney, 25 October 2012;
- Michael Eburn ‘Emergency services and health and safety’ (2012) 8(1) Crisis Response10-13).
The problem is that whilst an answer may be justifiable in law, it is harder to justify to the media. The media like to promote fire fighters as ‘heroes’ and rushing in contrary to policy and in the face of danger not only accords with the hero myth, it’s the sort of thing TV responders do all the time so people get rewarded for that sort of action; but are unlikely to get rewarded for taking a cautious approach and saying ‘this was not our emergency, so we stood by until we had the resources we needed to do the job with due regard to our safety, even though that increased the risk to others’.
Further, the media would enjoy it even more if firefighters were willing to say ‘we could have saved the person but were hamstrung by WHS red tape’. That statement is easy to make at the time because then the person speaking knows the ‘victim’ has died and can believe that had the responders been allowed to act they would have successfully rescued the victim. That is of course a matter of pure fiction; one can’t have any idea what would have happened and whether or not compliance with the procedures just saved 3 fire fighters that would in fact have died had they attempted to act. But ‘fire fighters act in accordance with policy and all go home; but couldn’t save innocent victim’ is not a good story. Fire fighters die trying to be heroes is, I’m afraid, a fantastic story. And ‘fire fighters die trying to be heroes but are unsupported by heartless central command that didn’t back them up with sufficient resources so that they turned out improperly crewed’ is an even better story.
So what’s the legal answer? As with everything it comes down to ‘risk assessment’. At the broad level, we might assume (hope? Trust?) that a risk assessment was done when the relevant policies were written to determine when a crew is ready to turn out, so that includes minimum staffing levels both in numbers and qualifications. If that’s been done then the policy should say what the CFA intends, and if that is that a crew must not turn out, then say it, and mean it. It might, on the other hand, mean a crew must not engage in active firefighting but it may be OK to turn out to start a reconnaissance and wait for more fire fighters before actually attacking the fire. Perhaps there is a discretion in senior officers or ComCen to allow a crew to respond provided there is some review of what tasks they may or may not do. That too should be in the policy.
The risk assessment, whether it’s at crew, region or state level has to answer ‘what do we do for a fire call if we don’t get sufficient numbers or sufficient numbers of relevantly qualified people?’ and in the cold calm of a non-emergency actually determine what the response to that will be. And then put that in the policy and then apply the policy – say what you mean; and mean what you say. That’s not going to deny there will be unpleasant questions when inevitable consequences occur, eg response times are delayed whilst there is a wait for sufficient crew numbers or, a crew at a scene does in fact not take action even if they think they could, but if the policy is well thought out and justifiable, then there will be answers for those unpleasant questions.