This question, with regard to the potential legalities surrounding the response of the closest fastest most appropriate resource to fire or other emergency, comes from a member with affiliations with both the South Australian Metropolitan Fire Service and the South Australian Country Fire Service.  My correspondent says:

In the peri urban areas of Adelaide city there is an area of interface between the SAMFS [Metropolitan Fire Service] and the SACFS [Country Fire Service]. The MFS have a clearly gazetted fire district (under legislation) with a boundary and everything outside of this is designated as CFS area (although to my understanding this is not a gazetted area just “CFS area” ie: not gazetted fire district).

As the city has grown and expanded we now have a situation where the volunteer CFS brigades are responsible for an area with major urban risks which traditionally were wheat paddocks or scrub or sparsely populated.

The response of emergency services is coordinated through a Computer Aided dispatch system (SACAD) which is supposed to respond the closest, fastest most appropriate resources, however here is the rub. There is no delay allocated against volunteer response as opposed to fulltime response. Resource responses are submitted for entry into CAD by local volunteer officers despite the fact that the local fulltime station would statistically have a much faster and not to mention, guaranteed response over the local volunteer resources.

In a recent example a fire occurred in an area of MFS and CFS interface in which the local MFS resource was the closest most appropriate resource however were not responded due to local CFS response plans in CAD.  The local volunteer unit took a period of time to assemble a crew and mobilise to the fire.  This time period was of such an extent that if the local MFS station had been mobilised at the same time (time of call) they would have been on scene and fighting the fire approximately one minute before the local volunteers became mobile from their station.

The incident was in CFS area (just) and as such response plans are under the control of the local CFS volunteer officer.  In this case they had not included the (closer) MFS station in their response plan.

The legal question is… Where do the emergency services and indeed the Government of SA stand in supporting a system which neglects to send the fastest closest most appropriate resource without a system of checks and balances against service delivery and what, if any, action could the local homeowner, whose house has burnt down, take against ESO’s who are consciously not including the fastest, closest most appropriate resources.

Will the legislation protect the actions (or lack of action) of the CFS in this example or is there a higher duty to compel ESO’s to put the community first and certainly before any inter-service rivalries?

A fire district is established by the Fire Services Commission (Fire and Emergency Services Act 2005 (SA) s 4).   The South Australian Metropolitan Fire Service (MFS) is, amongst other things, required to ‘provide services with a view to preventing the outbreak of fires, or reducing the impact of fires, in any fire district’ and ‘provide efficient and responsive services in any fire district for the purpose of fighting fires…’ (s 26).  Fire services in those part of the state that are not part of a proclaimed fire district are provided by the Country Fire Service (CFS). The CFS has similar functions to the MFS (s 59).   Both the MFS and the CFS can operate in areas that are the responsibility of the other service (s 4(4)) and take control of the response to an emergency if the other service is not yet in attendance (ss 42(2)(E) and 96(2)(D)).   The Act does not say that either agency is required ‘to respond the closest, fastest most appropriate resource…’

Even so, it is the case that the MFS is the agency for responding to fires within a fire district, and the CFS is the agency for responding to fires outside a fire district. If the property in question was outside a fire district, then responsibility for managing the response lies with the CFS.   In these days of ‘all hazards, all agencies’ the agency in charge of response does not need to actually ‘respond’ they could ask another agency to assist.  So I infer there’s nothing to stop the CFS asking the MFS to respond to a fire outside the fire district – save that removing that appliance from the fire district does necessarily leave the fire district with less cover.

I don’t know, from the facts given, whether or not a duty officer has to make a call on what appliance to respond to each call, or whether the response plans are determined, loaded into CAD and then the despatcher applies them.  Either way it doesn’t really matter.  Putting aside the assertions that the decision here was somehow improper or based on inter-service rivalry, and without wanting to get into an actual case and an actual decision, I can look at general principles.

The fire services and the South Australian Fire and Emergency Services Commission are given broad functions and powers under the Fire and Emergency Services Act 2005 (SA).  Having been given those broad directions, it is up to them to consider all they ways fire services can be delivered and make choices.   Those choices include questions of where to put fire stations, how many fire fighters to employ or volunteers to engage, what appliances to buy, response protocols and the like.  Making those decisions needs to take into account the budget, the population, the state of the fire science, what’s available, firefighter welfare etc.    That may mean that even if the appliance is the closest, it may not be the most appropriate.

A person who thinks that a fire service or the Commission has failed to perform its functions could seek ‘judicial review’ to compel them to perform their tasks according to law but a court will recognise that the Parliament has given the discretion as to how to perform the tasks required of the service to the service and its Chief Officer.  A Court will not override that decision unless the decision ‘… is so unreasonable that no reasonable authority could ever have come to it…’ (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223).

In order to sue for damages a person in the situation described would have to show that the decision to despatch the CFS, not the MFS was negligent.  The first thing that would require was establishing that the fire service owed the resident a duty of care and generally, a fire service does not – see Liability for fire – a review of earlier posts (January 8, 2016).   If they could show a duty of care they would have to show the action was in fact negligent, that is it was below the standard to be expected of a reasonable person in the defendant’s position.  To assess that the court needs to consider

… what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position. (Wyong Shire v Shirt (1980) 146 CLR 40, 48).

So the person responsible for nominating the appliance and who considers that the MFS may be quicker than the CFS has to consider what difference will it actually make to the outcome?  What impact will it have on the fire district to have their appliance leave, (assuming that the fire station has probably been put there to service the relevant community)? And that the policy is that the CFS respond outside a fire district, the MFS inside one.

The homeowner would also need to show that a different decision would have led to a different outcome.

So the answer to the question ‘what, if any, action could the local homeowner, whose house has burnt down, take against ESO’s who are consciously not including the fastest, closest most appropriate resources’ is not much.  The word ‘consciously’ is I think a pejorative here, in that I believe my correspondent intends to imply some mala fides which I don’t accept.  But consciously can mean ‘knowingly’ and the CFS may well despatch a volunteer brigade knowing it will be slower than a full time brigade because for a whole variety of reasons, including the need to keep the urban brigade for fires in the fire district.  Provided that is not so unreasonable that no-one would think the relevant officer was attempting to perform his or her duties, and provided it is supported by reasons (ie ‘reasonable’) then there will be no action the homeowner can take.

If the MFS station is close to a growing population but the boundary of the fire district is such that CFS brigades from further away are responding, then the real issue lies not with the fires services but the Fire and Emergency Services Commission.  It is up to the Commission to ‘… establish a fire district or fire districts for the purposes of the operations of SAMFS‘ (s 4(1)).  Further the Commission may ‘vary the boundaries of a fire district’ (s 4(2)).  The Commission is also ‘to provide for the effective allocation of resources within the emergency services sector’ (s 8(1)(e)).    If the population of ‘the city has grown and expanded’ to such an extent that a volunteer CFS brigade can’t really provide the necessary support then it might be incumbent upon the Commission to change the boundary and bring that population within a fire district.  Making that decision is more complex than just deciding who can respond fastest, because if that was the only issue every fire station would be staffed 24 hours a day, but communities can’t afford that.

The various duties or functions set out in the Act are statutory duties, but an aggrieved person can’t necessarily sue for a breach of statutory duty, there has to be an indication that the parliament intended that someone could sue (see ‘Black Saturday’ litigation (May 11, 2011).  So the chances of a home owner being able to sue are slim to zero.

The issue here is political. Governments get elected to do various things and one of the things we expect them to do is manage the emergency services but also to make allocations of resources across competing demands.  More money could be spent on emergency services but that would mean less money on something else.  Decisions have to be made but for every decision there are alternatives.  In Australia there is a separation of powers between the courts, the parliaments and the executive (represented here by the Commission, the CFS and the MFS).  The parliament makes the law (the Fire and Emergency Services Act 2005 (SA)), the executive have to put it into action and the court’s role is to ensure that the executive acts in accordance with the law – not to ensure that the executive makes the decision that a litigant or a judge would like them to make.  If the executive are making decisions that are within their discretion, a judge won’t interfere.  In this case the parliament has said it is up to the Commission, the MFS and the CFS to determine how fire services are provided.  If they are ignoring their duties, acting in bad faith or making decisions that are ‘so unreasonable that no reasonable authority could ever have come to it’ then a court may have jurisdiction to intervene.  Otherwise, if a community is unhappy with the decisions that are being made, it is up to them to take it up with the government or, if a person is really passionate about the matter, run for election!

Conclusions

The questions put to me were:

Where do the emergency services and indeed the Government of SA stand in supporting a system which neglects to send the fastest closest most appropriate resource without a system of checks and balances against service delivery?

It is up to the government, through the responsible minister to determine issues of emergency service management.   There is no obligation to have a system that guarantees ‘the fastest, closest most appropriate resource’ particularly as the ‘fastest, closest’ may not be the most appropriate.  It is up to the agency (with the government ultimately responsible) to decide what is ‘most appropriate’.

What, if any, action could the local homeowner, whose house has burnt down, take against ESO’s who are consciously not including the fastest, closest most appropriate resources.

None.

Will the legislation protect the actions (or lack of action) of the CFS in this example or is there a higher duty to compel ESO’s to put the community first …?

Yes, the legislation and the common law will protect the CFS in this example unless there is perhaps actual mala fides which I doubt (despite my correspondent’s implications to the contrary).  If there is a duty to ‘put the community first’ it is debatable what that means.  If the MFS were despatched to the fire and then someone’s house, in the fire district, burned down they might say that the decision to despatch the MFS did not ‘put the community first’.    How to deploy resources, not only how to deploy appliances that are sitting at a station, but where to put stations and what policies to put in place, are complex issues that require consideration of multiple factors so they are given ultimately to the Chief Officers.  That in a given case they mean a delay that another policy may have avoided does not mean that anyone is failing to ‘put the community first’.    If a person thinks the agencies are not putting their community first there remedy lies not in law, but in running for elected office and making the case in the forum of government.