A member of Fire & Rescue NSW has a question concerning damage caused during a rescue.  My correspondent refers to the Fire Brigades Act 1989 (NSW) s 38 then says:

I’ve been told by a more than one person within the organisation that in relation to rescue incidents we’re covered for damage to property under the fire brigades act. I understand that under section 7 of the of Fire Brigades Act we’re authorized to take measures anywhere in the State for protecting life and property regardless of the presence of a fire or hazardous materials incident.

In the last 2 weeks … Fire Station has attended two electrocutions, the first was a workmen inside the ceiling and the second was a workmen on the roof. Following the first incident a discussion was held about what we would do and options of enlarging the man hole cover to the roof space or cutting a second access hole if the causality was situated a distance away from the man hole were proposed. In such a situation where damage was caused to a property in an effort to preserve life would this be covered under section 38 of the Fire Brigades Act or some other section of legislation?

Damage done by a fire brigade is deemed to be damage caused by fire

The Fire Brigades Act 1989 (NSW) s 38 says:

(1) Any damage to property caused by the Commissioner, the officer in charge at a fire or a hazardous material incident, any member of a fire brigade (including an interstate fire brigade within the meaning of section 26) or any member of a community fire unit in the exercise in good faith of functions under this or any other Act is to be considered to be damage by fire for the purposes of any policy of insurance against fire covering the property.

(2) This section applies only in respect of damage to property caused in the exercise of a function to protect persons from injury or death or property from damage if those persons are or the property is endangered by fire or endangered by the escape or likely escape of hazardous material.

Similar provisions apply to the Rural Fire Service (Rural Fires Act 1997 (NSW) ss 28 and 72).

The existence of these provisions are easy to explain.  Fire brigades have extensive power to do all sorts of damage in the course of fighting a fire (see for example Fire Brigades Act 1989 (NSW) ss 13 and 17).    As far back as 1609 it was said ‘for saving of a city or town, a house shall be plucked down if the next be on fire’ (The Case of the King’s Prerogative in Saltpetre (1609) 77 ER 1294, 1295).   Further firefighting causes its own damage – Fire brigades have to force entry, cut holes to access the seat of the fire and the application of water adds its own damage, so a room may be flooded and goods damaged by the fire suppression.  The public good in putting out the fire, and therefore stopping it from spreading justifies these actions and it is good public policy to avoid debates about whether the damage was caused by the fire or the fire brigade.  Section 38 (and its equivalent in all fire brigade legislation) says that damage done by the fire brigades in the course of dealing with a fire (and now, at least in NSW, a HAZMAT incident) is deemed to be damage done by fire.  If the owner of the damaged property is insured for loss caused by fire they are also insured for loss caused by the actions of the fire brigade.  If they have no insurance they wear the all the losses.

State Emergency and Rescue Management Act 1989 (NSW)

My correspondent’s question however relates to rescue.  In NSW rescue management is governed by the State Emergency and Rescue Management Act 1989 (NSW).  Critical provisions of that Act are:

  • Rescue is defined as ‘means the safe removal of persons or domestic animals from actual or threatened danger of physical harm’ (s 3).
  • NSW police are ‘responsible for co-ordinating rescue operations and for determining the priorities of action to be taken in rescue operations’ (s 50).
  • For each area there is an accredited rescue unit (see State Rescue Board Summary of Accredited Land Rescue Units – As at June 2015). It is an offence to ‘operate rescue unit or rescue vehicle without accreditation’ (s 53).
  • Agencies, like NSWF&R and NSW SES do not have to be accredited to perform their statutory functions (s 50(3); State Rescue Board, New South Wales State Rescue Policy (3rd Edition Version 3.5), [3.41] so the SES does not need accreditation to do flood rescue (State Rescue Board, Flood Rescue Policy (August 2009), [12]). Equally NSWF&R do not need accreditation to rescue people from danger caused by fire or a hazardous materials incident.
  • Any damage done by ‘a senior police officer’ or ‘a person acting on and in accordance with a direction given by … a senior police officer …’ under s 61(1) – Power of police to take other safety measures – is deemed to be damage caused by the emergency (s 62A(1)(b) and (c)).
  • When an emergency service organisation realises that a ‘rescue’ is required, they are obliged to notify police (s 51).

(As an aside, s 51 is problematic given the broad definition of ‘rescue’.  Every time an ambulance crew pick someone up of the street, or an SES volunteer assists a person into a flood boat, they are removing a person from danger of physical harm but it can’t be assumed they notify police.  Equally every time a fire officer assists a person from a burning building they are conducting a rescue, but in that case it’s probably the case that the police are there too.  Let us put aside, however, questions on the obligations imposed by s 51 and return to the question at hand).

My assumptions

Let us assume that in the situation nominated by my correspondent, there was no risk of fire. This would of course depend on the facts, and I can imagine an electrical accident may trigger an automatic fire alarm and create a risk of fire so one could have detailed and technical decisions about whether it’s a fire call, but let us assume, for the sake of the argument that there was no risk of fire.    Let me further assume, for the sake of the argument, that these situations arose when NSW Ambulance were called to the scene, realised that they couldn’t access the person and called for ‘rescue’ to assist and NSWF&R were the appropriate accredited rescue unit despatched by police to assist with the rescue.

My assumptions are summarised as – this is not a fire call, there is no threat of fire or hazmat so s 38 doesn’t apply.   This is a rescue within the meaning of the State Emergency and Rescue Management Act 1989 (NSW) and Fire and Rescue NSW were the relevant accredited rescue unit.

Discussion

The State Emergency and Rescue Management Act 1989 (NSW) doesn’t specifically empower a rescue squad to do anything. There is nothing in the Act that says a rescue squad can do damage, or cut open any receptacle or do anything else to complete their rescue, but rescue squads do that sort of thing all the time – just think of using the ‘jaws of life’ to cut the roof or doors off a car.    The power to do that must come from the common law of necessity and/or be implied by the Act that provides for accredited rescue units, and prima facie, rescue units must be able to do what they are accredited, and by implication, trained to do.  And if rescue training involves cutting open ceilings, or cars, by implication there is a power to do that.

There can be no liability that attaches to the member of a rescue squad or the agency (s 59) but that doesn’t answer the question of whether or not the damage done by the rescue squad is deemed to be damage done by the relevant hazard that caused the emergency, and the need for rescue, in the first place.

At the scene of an emergency, a senior police officer (that is ‘a police officer of or above the rank of sergeant’ (s 60KA)) ‘may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons … from injury or death … direct … the taking possession of, and removal or destruction of any material or thing … that may be dangerous to life … or that may interfere with the response of emergency services to the emergency” (s 61(1)). Any damage done by ‘a senior police officer’ or ‘a person acting on and in accordance with a direction given by … a senior police officer … ‘ under s 61(1) is deemed to be damage done by that emergency (s 62A(1)(b) and (c)).  In that context emergency means ‘fire, flood, storm, tempest, explosion or other risk, contingency or event’.  This event is not fire, flood, storm, tempest or explosion but it is some ‘other risk, contingency or event’.  Further, for the purposes of that Act, an emergency is (emphasis added):

… an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:

(a) endangers, or threatens to endanger, the safety or health of persons …

being an emergency which requires a significant and co-ordinated response.

This ‘event’ was an ‘accident where in each case, the safety and health of the workman was endangered and if ambulance, police and the fire brigade were in attendance, and police were coordinating rescue as required by s 50, that sounds like ‘an emergency which requires a significant and co-ordinated response.’

It’s hard to imagine that in the scene described a police sergeant would be standing there telling the firefighters where to cut.   Even so, given that police are in charge of coordinating the rescue, the fact that the brigade have been called upon to do the rescue and are acting with the knowledge of police could, I think, give rise to an implied direction to take possession of and destroy the ceiling in order to effect the rescue.  This is somewhat of a ‘long bow’ as there may well be at many rescues no senior police officer and the firefighters are not really thinking they are acting under the direction of police but it’s an argument to say that ultimately the damage was done by the ‘emergency’ (however described).

The terms of any insurance policy

But does that help? Only if the building owner had insurance for the relevant emergency or damage to the building.  And that is, I think the crux of the matter.  If the building is insured, it is probably insured for loss due to fire, earthquake, flooding and the like, and also for deliberate damage so if a vandal smashed up the ceiling, insurance would probably cover it.  If a firefighter smashes up the ceiling it’s the same thing from the insurer’s point of view so I would have thought if you were insured for property damage it’s not going to matter whether the damage was done deliberately by a criminal or deliberately by a rescue squad – the insured event – damage to the building has occurred.  On the other hand, there may be an issue if the insurance excludes damage done with the consent of the owner, as a rescue may be ‘with consent’.  The ultimate answer will depend on the terms of the insurance.

With respect to cars, it’s not going to be an issue.   If the car is insured and runs into a tree, it’s a total loss even before the rescue squad cut the roof off, but it may not be so clear if the car was in perfectly good condition before the rescue squad was called – see Mark Reddier, ‘Woman falls from balcony in Sydney, then has to be cut from carABC News (Online) 8 December 2016).  Even then I would expect an insurer would be unlikely to quibble but you can never know.

In either case, if the owner the building or the car had no insurance then they will wear the loss for the damage caused during the rescue.

Conclusion

My correspondent asked ‘where damage was caused to a property in an effort to preserve life – [that is effect a rescue] would this be covered under section 38 of the Fire Brigades Act or some other section of legislation?’

The answer is:

  • The damage done would not be deemed to be damage done by fire because the risk to the person was not caused by ‘fire or endangered by the escape or likely escape of hazardous material’ (Fire Brigades Act 1989 (NSW) s 38).
  • The damage done may be deemed to be damage done by ‘the emergency’ if the action taken was done at the direction, either express or implied, of a senior police officer (State Emergency and Rescue Management Act 1989 (NSW) ss 61(1) and 62A(1)(b) and (c)).
  • In any case, whether the damage is covered by the owner’s insurance policy would depend on the terms of the policy.

Post script and mea culpa

A much shorter version of this discussion appeared on the Facebook page associated with this blog as a brief commentary on the situation described in the article ‘Woman falls from balcony in Sydney, then has to be cut from car’.   In that discussion I had concluded that given the rescue was performed by the fire brigade and that they were exercising, in good faith, functions under the State Emergency and Rescue Management Act 1989 (NSW), s 38(1) would apply and the damage done to the car would be deemed to be damage done by fire.

In giving that short commentary I failed to identify s 38(2) which says ‘This section applies only in respect of damage to property …  if those persons are or the property is endangered by fire or endangered by the escape or likely escape of hazardous material’.  It means the conclusion I expressed there was wrong and I’ve deleted my commentary from that page.

Today’s question caused me to look at the issue in more detail, hence the conclusions above.