This issue is becoming a theme –

This time the question relates to NSW Fire and Rescue.

The retained fire station that I belong to is around 12 to 15 mins away from a permanent station. The permanent fire fighters are expected to turn out within 3 mins; the retained (part-time) firefighters are given a 7 min turnout time which our brigade meets, give or take 2 mins here and there.

Recently we have been told that there are massive budget cuts to NSW Fire and Rescue.  As a result, the area management want to make it that the permanent firefighters respond to any single pump response and the retained firefighters won’t be activated even if the call is within the retained brigade’s area; so, for example, if there is a car fire in our area where the permanent brigade is roughly 12 to 15 mins away, they will be sent and the retained firefighters won’t be sent.  We are also told that the service won’t be calling in the permanents bravo pump, which is staffed by retained firefighters, to cover the area the permanent brigade is responsible for which is meant to provide 24-hour fire coverage.

Is there any legal obligation that the service is breaking to save money and not call the closest brigade?  Are they ignoring a legal obligation to provide a 24 hour permanently staffed station when the permanent crew are out by not calling in retained firefighters to stand by?  If a job was to happen in front of the permanent’s station and they didn’t have a truck there within 3 mins and someone died as a result of the slower response because it was chasing a fire call out of area when the closer retained station could of done it and they want to save money and not page the retained fire fighters to stand by are they being negligent? And how could we go about getting this issue fixed if it comes in?

Discussion

Response times

First let’s clarify the issue of times.  Chances are the fire call is not to a location directly outside the fire station, so let’s assume it’s a further 5 minutes from the retained fire station.  If the permanent brigade takes 3 minutes to get out the door and then have to travel 12-15 minutes to drive past the retained station on the way to the fire, then a further 5 minutes from there means that the time from receiving the call to getting to the fire will be 20-23 minutes.  The retained brigade will take 7 minutes +/- 2 to get out the door and then 5 minutes to the scene so that will see them there in 10 to 14 minutes.    If the call is actually 5 minutes the other way, so it’s between the permanent station and the retained station, then the permanent fire fighters don’t have to travel the 12-15 minutes to the retained station and then keep going. In that case the permanent brigade would have 3 minutes to get out the door then 7 to 10 minutes to the fire ie 10-13 minutes in total.  The retained brigade would still have 7 minutes +/- 2 to get out the door and then 5 minutes to the scene so that will see them there in 10 to 14 minutes.  Where the fire is really does matter!

Some law

The Fire Brigades Act 1989 (NSW) s 6 provides that ‘It is the duty of the Commissioner to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district’ (emphasis added).   Fires outside a ‘fire district’ are the responsibility of the Rural Fire Service (Rural Fires Act 1989 (NSW) s 6). Providing fire services within the fire district is the responsibility of the Commissioner and to meet these obligations, the Commissioner may:

(a) … establish permanent fire brigades and form or assist in the formation of volunteer fire brigades, and

(b) provide permanent and volunteer fire brigades with suitable premises and requisite equipment, and

(c) maintain permanent fire brigades, and

(d) pay subsidies to volunteer fire brigades and make payments to the members of volunteer fire brigades.

A fire district is not further divided into areas for permanent brigades and retained or volunteer brigades. It is up to the Commissioner to decide which brigade is called to any particular fire.

As you would expect, there is little direction given to the Commissioner on how to perform the functions imposed by s 6.  The Parliament creates the structure and gives the necessary powers to the Commissioner but it is then up to the Commissioner, responsible to the Minister and the Government of the day, to decide how best to meet those obligations.  The courts can intervene if an interested party seeks an order to require the Commissioner to perform the statutory obligations, but this brings us back to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223).  Within a broad discretion the Commissioner is left to make decisions and a court won’t intervene unless the decision ‘‘… is so unreasonable that no reasonable authority could ever have come to it…”.   Are the decisions described by my correspondent so unreasonable that no fire agency could sensibly make the same sort of decision?  I doubt it.

First, and no doubt I’m making many assumptions here, but as I understand it retained firefighters are paid a small retainer but then an hourly rate, and for not less than 4 hours, if they are actually called.  If that’s correct one can see that it costs to call out the retained firefighters and pay them for 4 hours when you are already paying the permanent firefighters and they are being paid whether they are fighting a fire or working at their station.   So there is a budget issue and like it or not, the Commissioner does have to manage the budget.  Second as noted above, it really does matter where the fire is – so at least sometimes the response times may not be very different.

Let us assume, for the sake of the argument, that a person calls triple zero for fire brigade assistance and there is a delay because the permanent brigade, rather than the retained brigade is dispatched.    Let us also assume that the person can establish that NSW Fire and Rescue owed them a legal duty to respond promptly a proposition which, I might add, is NOT the law (see Liability for fire – a review of earlier posts (January 8, 2016)) but which I will assume here just so I can move onto other issues.   The plaintiff would then have to prove that there was negligence, that is that the action taken was not that which a reasonable person would have taken.

In deciding whether there is negligence by an authority like NSW Fire and Rescue, the court has to consider (Civil Liability Act 2002 (NSW) s 42):

(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,

(b) the general allocation of those resources by the authority is not open to challenge,

(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate)…

So the fact that the Commissioner has budget constraints is a real issue.  How to allocate the resources that the Commissioner has – and those resources are the brigades, permanent and volunteer, as well as the money allocated by the Government – is a matter for the Commissioner.  A plaintiff can’t argue, and a court can’t rule, that the Commissioner should have allocated the budget in a different way.  And the budget has to cover all the functions of the service – fighting fires, hazmat response, rescue response, supporting other agencies, public education, training, administration etc etc etc.   An argument that ‘if you had responded retained fire fighters to my fire at my address on this date I would not have suffered a loss’ is just not tenable (and remember that’s assuming there is an obligation to send anyone at all).

The questions

Let me now return to my correspondent’s questions:

Is there any legal obligation that the service is breaking to save money and not call the closest brigade? 

No.

Are they ignoring a legal obligation to provide a 24 hour permanently staffed station when the permanent crew are out by not calling in retained firefighters to stand by? 

No; There is no legal obligation to provide a 24 hour permanently staffed station.  Stations are often unattended because firefighters are out doing their job but the station is still ‘staffed’; they’re just out doing their job.  If further fire fighters are needed they can be brought in from other stations, retained fire fighters called up or off duty fire fighters recalled to work – Fire Brigades Regulation 2014 (NSW) r  27.  It’s a matter for the Commissioner to determine whether fire fighters should be called up ‘just in case’ or only when the next fire call is received.

If a job was to happen in front of the permanent’s station and they didn’t have a truck there within 3 mins and someone died as a result of the slower response because it was chasing a fire call out of area when the closer retained station could of done it and they want to save money and not page the retained fire fighters to stand by are they being negligent?

No; there’s no guarantee that a fire station will have fire fighters there all the time.  Whether the brigade is at a fire 20 minutes away or just around the corner, if there is an accident in front of the fire station the people are still going to have to wait for a response.

And how could we go about getting this issue fixed if it comes in?

The fire service is a part of government, and so the issue of how its run and how the government allocates the budget between the fire service, the health services, education, policing, local government, national parks, roads and transport and all the other myriad of things that governments do is a matter for the government.  Influencing the government is a matter of politics.  If you think the fire service doesn’t get enough budget, or that the Commissioner is making poor decisions, then the answer is in politics.  Raise your concerns with the management, join the union, lobby your local MP, get active in the community (remembering that ‘A firefighter must not comment publicly on the administration of Fire and Rescue NSW, except with the approval of the Commissioner’ Fire Brigades Regulation 2014 (NSW) r 23) or run for elected office.   But the law of negligence is not going to help.  The law says these sorts of decisions are matters for the Commissioner and there’s no legal obligation to have fire fighters on a station at all times, or to have a 3-minute response time, or to call the closest retained brigade in preference to a permanent brigade that’s already on station and ready to turn out.