Emergency Management for Local Government

Legal Issues

Michael EburnSchool of Law

University of New England

Emergency Management

• Legal issues for local government?– Prepare

• Land use planning• Risk warning• Prepare emergency plans

– Prevent• Mitigation strategies

Emergency Management

– Respond• Warnings given?• Was the plan followed?

– Recover• vulnerable population, high degree of control• Restore services• Rebuild better?

Areas of law

• Administrative law– Review of decision making.

• Criminal law– Leads to punishment – fines and gaol – not

really relevant here.

• Inquests and inquiries• Tort

– negligence, misfeasance in public office, nuisance etc.

– Leads to the award of $.

Administrative law

• This is the sort of action where an applicant wants the respondent to correctly apply the law.

• Reviewer may be appointed as alternate decision maker.

Inquiries

• Royal Commission• Coronial inquests• Not meant to be adversarial – but often are.

Tort - Negligence

An action in negligence raises three questions:1. Did the defendant owe a duty of care?2. Was there a breach of that duty?3. Did the breach cause the plaintiff’s damage?

Can we sue?

• Just because the act says ‘must’ or ‘may’ does not mean someone can sue if you don’t.

• Statutory duty may not = duty of care.• A ‘duty of care’ must be consistent with the

powers given to, and the duties imposed, on the authority, so always start with the Statute.

Important Factors

• Is the statutory power granted for the benefit of the community (Barclay Oysters v Ryan; Capital and Counties) or for individuals?

• Control- the greater the degree of control over the risk, the higher the duty (Crimmins; Pyrenees Shire).

Questions to ask?

1. Was injury foreseeable?2. Could the defendant protect the plaintiff? 3. Could the plaintiff protect themselves?4. Did the defendant know of the risk of harm? 5. Would a duty impose liability with respect to the

defendant’s exercise of “core policy-making” or “quasi-legislative” functions?

6. Are there any other reason to deny the existence of a duty of care (for example, the imposition of a duty is inconsistent with the statutory scheme)?

Duty of care arises if the answers are:1. Was injury foreseeable? YES2. Could the defendant protect the plaintiff?

YES.3. Could the plaintiff protect themself? NO4. Did the defendant know of the risk of harm?

YES5. Would a duty impose liability with respect to

the defendant’s exercise of “core policy-making” or “quasi-legislative” functions? NO

6. Are there any other reason to deny the existence of a duty of care (for example, the imposition of a duty is inconsistent with the statutory scheme)? NO

Legislation

ACT, NSW, Qld, Tas, Vic and WAa) the functions required to be exercised by the

authority are limited by the financial and other resources

b) the general allocation of resources is not open to challenge,

c) The court must consider the whole range of functions that the authority has to perform.

Summary – duty of care

• A statutory authority, CAN owe a duty of care.• But – must be consistent with the statute• The exercise of ‘quasi-legislative’ powers are

beyond judicial review and cannot be subject to a duty of care, neither can decisions regarding ‘… the raising of revenue and the allocation of resources…’

Breach of duty

• Duty is only to act as the ‘reasonable’ defendant.• It is not a duty to guarantee safety.• The reasonable defendant is not the average

defendant – a legal fiction.• Be careful not to apply the ‘retrospectoscope’

Wyong Shire v Shirt(1980) 146 CLR 40 [14]

... 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.

Gardner v NT [2004] NTCA 14

... this Court must be careful not to impose unreasonable expectations and unreasonable duties which are based more on hindsight and a lack of appreciation of the practicalities and difficulties that exist … than a realistic assessment of the care which a reasonably prudent person would exercise in these circumstances.

Vairy v Wyong Shire Council [2005] HCA 62

The duty of care which a council owes … is a duty which is not limited to taking reasonable care to prevent one particular form of injury associated with one particular kind of … activity.

Civil Liability Acts

There is only liability if you fail to act as the reasonable authority.

The Court must look at:(a)  the probability that the harm would

occur if care were not taken,(b)  the likely seriousness of the harm,(c)  the burden of taking precautions to

avoid the risk of harm,(d)  the social utility of the activity that

creates the risk of harm.

Damage

• Did the actions/failure cause the damage?• What difference would it have made if some other

action had been decided upon?

Our scenario

• Can you apply these principals?• Do the defendants owe a duty of care to

the plaintiff?• Did they cause the damage?• NOTE: Legislation in all States and

Territories impacts on the liability of volunteers and organisations that have volunteer member (eg RFS/Salvation Army). We need not concern ourselves with that here.

The little‘take home’ message

• Emergency management is subject to law;• Legal risk varies with degree of control and

impact on individuals. Hard to see any tort issues with ‘planning’ and ‘preparation’, may be low risk at ‘response’, higher at ‘recovery’.

PreventCouncil perceived to have power, knowledge and control

PrepareRespondLack of control

RecoverVulnerable population

Legal risk

The big ‘take home’ message

• There are legal risks but• There are legal risks in everything we do…• Nothing can guarantee you wont be sued• Nothing can guarantee you’ll win if you are but

• The best answer is risk management• Litigation is a dispute resolution process• Being sued is a an opportunity to explain your

position – to identify your processes.

• Don’t worry about the law … focus on achieving good outcomes for your community.