Dr Michael Eburn

Barrister, and

Associate Professor, ANU College of Law and

Fenner School of Environment and Society.

Liability of emergency services and their volunteers

Dr Michael Eburn

Barrister, and

Associate Professor, ANU College of Law and

Fenner School of Environment and Society.

Liability of emergency services and their volunteers

NO

Areas of law

• Torts (negligence).• Occupational Safety and Health.• Traffic law.

Torts - three cases from 2012

• Warragamba Winery v NSW (fire in 2001); • Myer Stores v State Fire Commission

(Tasmania) (fire in 2007); and • Electro Optics Systems & West v NSW

(Canberra 2003).

An action in negligence requires

1. A duty of care;

2. A breach of that duty – conduct that falls below the standard of a reasonable person in the defendant’s position; and

3. The breach must cause the plaintiff’s damage.

But first

Capital and Counties PLC v Hampshire County Council [1997] 2 All ER 865“In our judgment the fire brigade are not under a common law duty to answer the call for help and are not under a duty to take care to do so. If therefore they fail to turn up, or fail to turn up in time because they have carelessly misunderstood the message, get lost on the way or run into a tree, they are not liable.” ([25]).

Warragamba Winery v NSW [2012] NSWSC 701(26 June 2012)

Warragamba Winery

• No duty; but• If there was, there was no breach; but• If there was, it didn’t cause the damage;

and• If it did, the RFS was protected by the

Rural Fires Act 1997 (NSW) s 128.

Myer Stores Ltd v State Fire Commission [2012] TASSC 54 (24 August 2012)

Myer Stores

“At least in relation to property damage, legislation in this State since 1920 had reflected a policy that the financial burden of unfortunate operational decisions should be borne by insurers, or by the uninsured. That seems possibly to have been a quid pro quo for the State providing fire-fighting services which, in times long past, were provided by insurance companies, and not at the expense of the public”. ([41]).

Electro Optic Systems & West v State of New South Wales [2012] ACTSC 184 (17 December 2012)

West v NSW

• Only two allegations of negligence were made out:– failure to actually send crews to examine the

fire on the 9th January; and – failure to prepare the Goodradigbee River

bank to act as an effective fire break.

But there was no liability because of

• Civil Liability Act 2002 (NSW) s 43.• NOT Rural Fires Act 1997 (NSW) s 128

(but that would have given a defence).

In WA, the relevant, equivalent provisions are:• Fire and Emergency Services Act 1998

(WA) s 37: ‘a person does not incur civil liability for anything that the person has done, in good faith, in the performance or purported performance of a function under’ the FES Act; Bush Fires Act or Fire Brigades Act.

• Civil Liability Act 2002 (WA) s 5X.

And for other volunteers there’s the

• Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA).

NSW RFS claims history 9/9/89 and 3/7/10 (21 years)

Suncorp identified:• 263 Claims (an average of 13 per year).

106 files were retrieved and reviewed.• 28 (10.6%) were litigated:

– 16 Supreme Court (7 from one fire);– 6 District Court;– 6 Local Court.

• 235 (89.4%) not litigated.

Claims settled

• Payments were made in 203 (77% of) cases.

• No payment in 60 (23% of) cases.• Why does the insurer make payments in

77% of cases?

Why?

• It costs more to defend claims (particularly small claims) than to settle the matter.

• State agencies are bound by ‘model litigant’ rules which require them to ‘avoid litigation’.

• Courts have a number of ‘dispute resolution’ processes.

• The overriding objective of litigation is to settle disputes, not enforce legal rights and duties.

• The insurer isn’t on ‘your’ side.

Lessons for fire fighters

• No one is suing individual fire fighters – and no one does, or will (Lobsey v Care (1983) 1 MVR 1 excepted).

• Vicarious liability will apply and has never been challenged.

• Statute law aims to protect volunteers.

Occupational Safety and Health Act 1984 (WA)• In WA ‘employee’ does not include

volunteers (s 3; cf. model Work Health and Safety Act 2011).

• (But volunteers are entitled to compensation as if they are employees (Bush Fires Act 1954 (WA) s 37)).

Section 21(2)

“An employer … shall, so far as is practicable, ensure that the safety or health of a person, not being … an employee of the employer, is not adversely affected wholly or in part as a result of:

(a) work that has been or is being undertaken by

(i) the employer or any employee of the employer…”

The relevant employer would be the local council (Bush Fires Act 1954 (WA) s 41).

Workcover v NSW Fire Brigades [2006] NSWIRComm 356• A clause such as Fire and Emergency

Services Act 1998 (WA) s 37 does not apply to criminal prosecutions and in particular, breaches of OHS legislation.

Traffic Law

• Road Traffic Code 2000 (WA) reg 281 provides exemption for the driver of an emergency vehicle, but only from the other provisions of the Road Traffic Code.

• It does not apply to offences like drink driving or dangerous driving (Road Traffic Act 1974) or manslaughter (Criminal Code s 280).

Civil liability for traffic accidents

• Fire and Emergency Services Act 1998 (WA) s 37 does not provide a defence (see s 37(2); see also Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105).

• But that’s OK as the vehicle must be insured.

25

Regardless of liability, there will be post event inquiries:• Internal, departmental or agency inquiries;• Inquiries under existing legislation;• Ministerial or Parliamentary inquires; • Coroner’s inquiries/inquests; • The Royal Commission!

26

Coroners

• Date back to 12th century.• Investigate deaths and fires.

27

Royal Commission

• An ad hoc inquiry, established to investigate a particular matter and limited by its terms of reference. They:– Are independent of government;– Have coercive powers;– Take evidence in public.

• The Royal Commission is the high profile way to say ‘we take this seriously’.

Inquiries do not determine issues of liability • They can make recommendations but

cannot determine liability.• Even so:

– 2003 Canberra coroner made adverse comments regarding senior managers;

– Boorabin WA, IMT called ‘incompetent’;– Teague Royal Commission and Chief Officers

and Chief Commissioner subject to ‘robust’ personal review.

Questions? Comments?

Michael Eburn

P: 6125 6424

E: michael.eburn@anu.edu.au

W: http://law.anu.edu.au/staff/michael-eburn

Blog: http://emergencylaw.wordpress.com/