This question comes via a Facebook user group, but I am responding to it with permission of the person who initially posted it .

The question has been raised in regards to the legal impact of a Team leader signing the now mandatory Safety Management Sheet (SMS) and what is their personal liability should something unforeseen go wrong.

Scenario: Crew arrives at a job, the SMS is completed via Beacon which is signed under his/her name. At that point in time the job deemed to be safe to do, but during the operation unbeknown to the team lead the situation changes or something unforeseen happens and there is an injury to a team member occurs …. At a future point in time the injured team member puts in a claim against the service and during the process the Team lead is implemented because his/her name was associated with the SMS …

So the question is, as the SMS is now a requirement via Beacon is there a risk that the Team lead will have personal liability for the injury because they are the one associated with the SMS or is there some sort of coverage/indemnity to protect the Team lead?

The Safety Management sheet is in effect a check list or an aide memoire to the SES safety policy.  It requires members or team leaders to stop and consider risks and what they might do to minimise the risk and to record their actions and decisions.  In essence the question is asking ‘what is the legal issues for a team leader who assesses a job as safe but it turns out that it isn’t?’

The first thing to address is the role of documents.  The SMS (whether it’s a piece of paper or a computer entry) is evidence as to what it records – that is at a given point in time someone thought the things recorded were true. It doesn’t prove they were true and it is not a statement that is forever true.  I can record that I believe that something is true, but it doesn’t mean I still believed it 5 minutes later.   The best a ‘fixed in time’ document does is grab a shapshot of the state of mind of the person completing it, at that time.  The first implication of ‘signing off’ the SMS is that if something goes wrong, someone – whether it’s a senior officer, the police or SafeWork NSW (formerly Workcover) depending on the actual event, might ask the author – ‘what happened?’

Civil Liability

As for ‘personal liability for the injury’ let me make this crystal clear – there will be none.   A member of the SES who is injured is provided compensation via the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) (see Workers compensation benefits for NSW emergency service workers (July 21, 2015)).  This Act, in effect, brings volunteer workers under the workers compensation scheme for employees.  The critical point about workers compensation is that it is a no fault scheme.  The Workers Compensation insurer meets the claim because the person has been injured in the course of his or her duties.   Fault is not an issue.

If the insurer has paid out compensation in circumstances where a third party caused the injury, then the insurer can seek to recover the amount paid from that third party (Workers Compensation Act 1987 (NSW) s 151Z(1)(d)).    Would that extend to the person who signed off on the SMS?  No.

First signing off on the SMS would not be the cause of the accident or injury. Second to be liable there has to be negligence, even if the assessment was wrong and a risk was missed it doesn’t mean there was negligence, particular in the scenario given where ‘unbeknown to the team lead the situation changes or something unforeseen happens’.  If it’s ‘unbeknown’ and ‘unforeseen’ then it can’t be protected against, unless the circumstances are such that the person should have known or foreseen the issue.   Even if that’s true the State Emergency Service Act 1989 (NSW) s 25 says:

A matter or thing done by: (a) a member of the State Emergency Service, including a member of an SES unit … does not, if the matter or thing was done in good faith for the purpose of exercising the functions of or assisting the State Emergency Service … subject the member, officer or volunteer personally to any action, liability, claim or demand.

The Civil Liability Act 2002 (NSW) s 61 also says that ‘A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work…’  I think we can assume, for the sake of the argument, that the SES is engaged in community work.

What is good faith?  In Mid Density Developments Pty Limited v Rockdale Municipal Council [1993] FCA 408. Justices Gummow, Hill and Drummond JJ said (at [24]):

His Honour found that the statutory concept of “good faith” in the performance of the functions in question, included two criteria. The first was that the act be done bona fide and not maliciously or to achieve an ulterior purpose. The second was that there be “a genuine attempt to perform the function correctly, that is to say that the function should not be performed without caring whether or not it be properly performed”.

Apply that here provided a member is acting ‘bona fide’ (ie you’re not saying the job is safe because you don’t like a team member and you know there’s a risk but don’t tell them in the hope that they’ll hurt themselves) and you are actually trying (not just filling in the boxes so you can say the form was completed without any attempt to actually think about the issues raised) then you are acting in good faith and are not liable.

Even if you were liable, the SES would be vicariously liable for your actions, gross negligence or deliberate criminal conduct excepted (see Vicarious liability for the actions of fire wardens (March 5, 2016); Queensland paramedics, registration and misunderstanding the law on liability (April 12, 2016).

So a person has signed off the SMS. That doesn’t prove that they were negligent.  It doesn’t mean the assessment at the time was wrong.  It doesn’t mean the assessment at the time was ‘unreasonable’.  It doesn’t mean that they caused the accident.  It doesn’t mean they weren’t acting in good faith.   Further if they assessed a risk as ‘low’ that didn’t mean it would not occur.  Even low probability events occur.

It follows that there will be NO liability attaching to the team leader for the payment of compensation just because they signed off on the SMS sheet.  It is simply not an issue.

Work Health and Safety Act 2011 (NSW)

I suggest that this question is really about criminal liability under this Act, not civil liability to pay damages for any injury suffered.  It is well known that with this Act the concept of ‘worker’ has been extended to include a volunteer (s 7).  As a worker, a volunteer has various duties under the Act (s 28) and they are, ultimately, enforced by way of the criminal law (ss 30-34).

A volunteer can only be prosecuted (ss 28, 29 and 34) if his or her conduct is such that they failed to:

(a) take reasonable care for his or her own health and safety,

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons,

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act,

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

Reasonable care doesn’t mean that they had to guarantee safety, just take ‘reasonable care’.    ‘Reasonable care’ is a concept familiar to negligence law.  To borrow from that case law to take reasonable care you need to first recognise the risk (understanding here that the issue was ‘unbeknown’ and ‘unforeseen’) and then take ‘reasonable measures’ to control the risk.  What is reasonable requires 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 (Wyong Shire v Shirt (1980) 146 CLR 40, 48).

Even if the risk is foreseen it may be impossible to eliminate it and one also has to consider the job at hand.  Cutting up a tree on a driveway probably warrants less risk than getting someone out of a floating car.  Leaving the tree on the driveway may be inconvenient, leaving the person in the car may be fatal.  So the fact that there is a poor outcome doesn’t mean that there was not reasonable care.

In the criminal law the burden of proof is ‘beyond reasonable doubt’ so the prosecutor, in the unlikely event they wanted to prosecute the team leader would have to show that the team leader failed to take reasonable care.  Just because the person signed off on the SMS that doesn’t prove that they were negligent.  It doesn’t mean the assessment at the time was wrong.  It doesn’t mean the assessment at the time was ‘unreasonable’.  It doesn’t mean that they caused the accident.  It doesn’t mean they weren’t acting in good faith.   Further if they assessed a risk as ‘low’ that didn’t mean it would not occur.  Even low probability events occur.

What of the State Emergency Service Act 1989 (NSW) s 25 and the Civil Liability Act 2002 (NSW) s 61?  The Civil Liability Act won’t help here because we are talking about criminal liability so the Civil Liability Act will be irrelevant.    On its face the SES Act is not limited to civil liability – it refers to ‘any action, liability, claim or demand’.  Section 78 of the Fire Brigades Act 1989 (NSW) also refers to a thing ‘done, in good faith…’ and provides that such an action does not subject any person ‘to any action, liability, claim or demand’.   In Workcover v Crown in the Right of the State of New South Wales (NSW  Fire  Brigades) [2006] NSWIRComm 356 the New South Wales Industrial Commission had to consider whether s 78 gave a defence to the NSW Fire Brigades when they were prosecuted over the deaths of three workers during a factory fire at Rutherford, near Newcastle.  At [51] Justice Boland took the ‘… tentative view’ that the words ‘any action, liability, claim or demand’ did not include criminal proceedings and that “s 78 of the Fire Brigades Act does not provide a general immunity from criminal liability”.   Assuming that his Honour’s ‘tentative view’ is correct, then the State Emergency Service Act 1989 (NSW) s 25 will not be relevant in a criminal prosecution because the words ‘any action, liability, claim or demand’ do not extend to the criminal law.

Do note that even in this case, where three people died and others were injured, it was not the firefighters that were being prosecuted. It was the State of New South Wales for the failure to properly train and equip those firefighters.  Everyone works in a system. If you are an SES volunteer you have the training you have, the resources you have and the policy options to follow.  If you apply those and someone gets injured it’s not your fault.  If you apply them badly and still someone gets injured it’s still not your fault – it reflects then on your training, supervision and mentoring as well as the culture of the agency.   Finding examples where an individual may get prosecuted are extremely difficult – Even in Cahill v NSW Police [2005] NSWIRComm 33, where a police radio technician was working at the front of a police truck when a police officer, as a joke, activated the siren causing permanent damage to the victim’s hearing, it was the NSW Police that was prosecuted.

(See also Michael Eburn, ‘Changes to occupational health and safety laws and the impact on volunteers in the emergency services’ (2011) 26(4) Australian Journal of Emergency Management 45-49).

Conclusion

Signing of on the Safety management Sheet means, at most, that the person signing off believed that what was recorded was true at that minute. It might give an investigator a starting point – ‘given that this was how the risk was assessed, what if anything went wrong? Given this starting point how did this accident happen?’

There is NO chance that merely signing off the SMS would lead to civil liability for the damages suffered should anyone get injured.

There is also NO chance that merely signing off the SMS would lead to liability under the WHS Act.

Just because the person signed off on the SMS that doesn’t prove that they were negligent.  It doesn’t mean the assessment at the time was wrong.  It doesn’t mean the assessment at the time was ‘unreasonable’.  It doesn’t mean that they caused the accident.  It doesn’t mean they weren’t acting in good faith.   Further if they assessed a risk as ‘low’ that didn’t mean it would not occur.  Even low probability events occur.