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.
NO
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.
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.
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!
25
Coroners
• Date back to 12th century.
• Investigate deaths and fires.
26
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’.
27
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/