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Michael Eburn

The title is also the title of a story in the Brisbane Courier Mail that reports that the Volunteer Marine Rescue Service is being sued for the alleged negligence of its volunteers.

The newspaper reports that:

New Zealand mariner Bill Goodhue is suing the VMR for negligence after his yacht was allegedly moved from its mooring in the Southport Broadwater and swamped.

Mr Goodhue argues civil liability laws that protect volunteers from legal action do not extend to the organisations they belong to.

The Marine Rescue Service is worried that

… the case could result in claims against it and other community groups and is fighting Mr Goodhue over what Southport District Court judge John Newton said yesterday was “a serious question of law”.

“This could set a danger- ous precedent,” VMR state secretary Harry Hubner said.

The case will set an important precedent if it interprets Queensland’s Civil Liability Act 2003 but the impact should not be as severe as either the editor or the VMR claim.

The newspaper further reports that

VMR barrister Susan McNeil told the court yesterday that civil liability laws in other states specifically protected community organisations from lawsuits, but not in Queensland.

However, she argued it was “clearly the intention of the legislation to ensure that the immunity that applies to volunteers also extends to community organisations”.

Civil liability laws in other states do not specifically protect community organisations from lawsuits. In every jurisdiction other than New South Wales and Queensland the legislation does the opposite, that is whilst ensuring volunteers are not liable, the legislation provides that the organisation for which they work remains liable for any damage caused by negligent volunteers (see Commonwealth Volunteers Protection Act 2003 (Cth) s 7; Civil Law (Wrongs) Act 2002 (ACT) s 9; Personal Injuries (Liability and Damages) Act 2003 (NT) s 7(3); Volunteers Protection Act 2001 (SA) s 5; Civil Liability Act 2002 (Tas) s 48; Wrongs Act 1958 (Vic) s 37(2); Volunteers and Food and other Donors (Protection from Liability) Act 2002 (WA) s 7).

It is hard to infer therefore that the legislature in Queensland must have intended an opposite result. New South Wales has legislation that is closest to the Queensland Act except that in New South Wales there is a section that says where an person is not liable (eg because they are a volunteer) then no-one else is ‘vicariously liable’ for their actions (Civil Liability Act 2002 (NSW) s 3C).

The Queensland Act is silent on whether or not “civil liability laws that protect volunteers from legal action [do or] do not extend to the organisations they belong.”

The Ipp Review of the law of negligence recommended against volunteer protection legislation. They also recommended against making organisations vicariously liable for the actions of their volunteers because that would have been contrary to their terms of reference (David Ipp et al, Review of the Law of Negligence, Final Report (Commonwealth of Australia, Canberra, 2002), 58) so no assistance on the meaning of the Act will be found there.

What can be concluded is all but one state makes it clear that organisations that use volunteers are liable for the negligence of their volunteers even if the volunteers are not personally liable. One State goes the other way but to achieve that objective they had to add a section to an Act that is in all other respects very similar to the Queensland Act, a section that the Queensland Parliament has not added leading to the inference that Queensland did not intend “… that the immunity that applies to volunteers also extends to community organisations”.

If the immunity does not extend to organisations it should not give rise to calamitous results. Organisations surely recognize that even if they use volunteers they should take care in what they do and if they do damage, eg by sinking a persons boat, they may have to make that good. The alleged damage here, 0f $90 000 would be a lot to an individual but not to an insurance company. Their own website verifies their commitment to accountability and responsibility so it is inconceivable that they are not approrpriately insured.

Liability does not depend on a poor outcome but on a failuire to take reasonable care in the circumstances. Arguing that organisations are, or should be, liable does not mean liable for everything bad that happens, so it certainly doesn’t identify whether or not there was negligence here.

The Ippp Review of Negligence law was of the view that exempting volunteers from liability was not necessary, but the Parliaments of all Australian states and territories acted to protect volunteers. It does not follow that a person who suffers a loss because of the negligence of volunteers should be denied a remedy simply because the person involved was a volunteer rather than an employee. The solution in all states aside from NSW has been to make the organisation liable.

It should be noted that the same result may not apply to statutory organisations such as the fire brigades and state emergency services as the liability of those organisations and their volunteers are governed by their specific legislation rather than the various Civil Liability Acts. If the Volunteer Marine Rescue Service were exercising powers under the Disaster Management Act 2003 (Qld) they may have further protection under that Act (see s 144) but the newspaper does not explain why the boat was being moved and whether that was in response to a rescue operation.

What’s interesting is this story could be reported from a different perspective – the heading could equally read ‘Rescue service denies duty of care’ and could be written, for the boat owner’s perspective, as an outrageus move by an organisation that it owed now duty and no obligation to take care (see ‘The Evidence won’t beat us’ and related stories regarding the 2003 Canberra bushfires and the defence there that the State of NSW owed no duty of care to the property owners)

What do you think?

Michael

Sydney’s Daily Telegraph is reporting on a tragic case involving a murder/suicide by a NSW Ambulance Paramedic .

Problems with respect to the culture in NSW Ambulance have been reported in the past, see in particular the Legislative Council Inquiry into the management and operations of the Ambulance Service; click here for the final report, or here for background information and submissions via the NSW Ambulance website).

The incident that is the subject of the report in the Daily Telegraph occured on 11 June 2008, that is after the Legislative Council inquiry had been established (15 May 2008) but before it had released its final report (20 October 2008). Ambulance reports that it has taken steps to improve in the area of human resource management (see the Ambulance Service’s Response to the Legislative Council General Purpose Standing Committee No.2: Review of the Implementation of the Recommendations of the Inquiry into the Management and Operations of the Ambulance Service of NSW).

It appears that the Coroner will be reviewing the practices and procedures that applied in a culture that we hope no longer exists within NSW Ambulance. Regardless of their subsequent reforms, the Coroner’s findings may still provide valuable further lessons for the Ambulance Service.

Michael Eburn
20 July 2010.

Dodge, in a comment on an earlier post, drew my attention to a case involving Queensland ambulance which is reported in the Brisbane Times. He said:

My thoughts on this firstly on the point of faulty equipment if the equipment in question has been serviced routinely according to the manufacturer’s instructions and that the service and testing was undertaken by suitably qualified medical equipment technicians could a case for negligence be found in the event the equipment has a sudden failure. While on the question of a possible unnecessary delay of the ambulance to arrive at the call what would be considered unnecessary I would assume that Kent v Griffiths provides some insight to this question.

Finally could the officers themselves be held partly responsible for the undesirable patient outcome by deviating away from the hospital to go to a station to attempt to retrieve replacement equipment when it could have been more expedient to proceed to the nearest emergency department under lights and sirens thereby preventing any delay in specialist emergency medical treatment for his perceived heart attack. Also (according to the article) they allowed the patient to walk to the ambulance with a suspected heart attack, as with the service I am with forbids such patients to be allowed to walk as it places undue stress on their already injured heart muscle.

Your thoughts on this interesting case would be welcomed.

I’ll comment on these points in turn. First we have to recall we don’t know all the facts, but let us assume that the story, as reported in the Brisbane Times is correct. In that story it is reported that “… the defibrillator had malfunctioned in late February and then failed to pass an equipment check the day before Mr Corsie’s death”. If that is the case there may well be good grounds for a claim against Queensland Ambulance. This would not be a case where a paramedic has done the best they can and there has been an adverse outcome, or a decision had to be made that in retrospect, was not the best decision. This would be an issue where Queensland Ambulance is acting like any supplier and has to act as the ‘reasonable’ supplier/health service/ambulance service. A reasonable ambulance service, that is one that does a risk assessment and thinks about possible outcomes, would realise that equipment has to be checked and working and would appear to have equipment checks. A reasonable ambulance service should have in place a system were equipment that fails the check is taken off line until it can be repaired as the consequences of not doing that are obvious and severe. A system that requires crews to check equipment but gives not instruction on what to do if it fails is clearly not ‘reasonable’.

Dodge asked about a different scenario, that is “… if the equipment in question has been serviced routinely according to the manufacturer’s instructions and that the service and testing was undertaken by suitably qualified medical equipment technicians could a case for negligence be found in the event the equipment has a sudden failure.” That is a different scenario all together. The question is always what is reasonable. Whether the equipment was reasonably made for the purpose and did it have sufficient redundancy in it is one question. But let us assume that its ideal equipment, maintained properly and the like, then a sudden failure could hardly be negligent. What could one do to prevent it? That is always the critical question. If the failure was unpredicted and unpredictable, it’s not negligent for it to fail.

As for the delay in the ambulance arriving, the story says “… the ambulance took an unacceptable 19 minutes to arrive at their address after being called”. Whether that delay really was ‘unacceptable’ will depend on why it took that long. What else was happening etc. The law says that government agencies can’t be sued for not having more resources than they do, and that all the demands on their resources have to be taken into account, (Civil Liability Act 2003 (Qld) s 35) so the issue here will be why did they take 19 minutes and given all the circumstances was that a reasonable time. Kent v Griffiths wont provide any guidance. In that case there was no explanation as to the delay in responding and it was found that the officers lied in their evidence about their response. That case did not deal with what may constitute good reason for delay, as there was no reason to consider.

Dodge then asks “… could the officers themselves be held partly responsible for the undesirable patient outcome by deviating away from the hospital to go to a station to attempt to retrieve replacement equipment when it could have been more expedient to proceed to the nearest emergency department under lights and sirens thereby preventing any delay in specialist emergency medical treatment for his perceived heart attack”. The officers wont be personally liable, as employees of Queensland Ambulance the Service will be liable if that decision was negligent as they were acting as ‘Queensland Ambulance’. Whether that decision was reasonable or not will depend on clinical evidence as to what they should have done, and whether they were directed to do that by their coordination centre or acted on their own initiative. That wont make any difference to the outcome, as who ever made the decision would have been an employee of Queensland Ambulance so Queensland Ambulance will be liable (if anyone is).

The story tells us the patient “… was allowed to walk to the ambulance.” Dodge says “… the service I am with forbids such patients to be allowed to walk as it places undue stress on their already injured heart muscle.” It’s been over 20 years since I was an ambulance officer and we didn’t let people with this sort of condition walk to an ambulance either, and I know of at least one Intensive Care Paramedic whose skill qualifications were downgraded for doing that, so not letting heart attack patients walk would appear to have been standard or ‘reasonable’ practice for some time. I don’t want to rush to judgement here, of course, I don’t know if or why they did allow the patient to walk and there would need to be evidence on why that call was made, if it was in fact made, but prima facie that is at least a questionable decision if in fact that was the decision.

The difficult issue for the plaintiff in this case will be causation. The plaintiffs will have to prove that but for the delay, and the faulty equipment, the patient would have survived and that may be difficult. They may also bring an action in their own name, that is the distress and angst they have suffered was compounded by ambulance response. Proof of that would not require proof that the outcome would have been better for their loved one, but that they would not have been exposed to the trauma of a series of errors.

This case sounds similar to one that has occurred in the USA that you can read about here.

Michael Eburn

In Wicks and Sheehan v SRA [2010] HCA 10 the High Court has given the latest word on liability to rescuers for psychiatric illness cause by their exposure to horrific incidents.

Rescuers are exposed to many horrific events, people dead and dying in many horrible circumstances often, if not usually, caused by someone’s negligence. The law of negligence does not, however, allow unlimited recovery by people affected by an accident. The law has, for some time, grappled with the question of how far liability for ‘nervous shock’ should extend. Can one recover damages for seeing an accident? What about seeing an accident on TV? We might accept that a parent who sees their child killed should be allowed to recover, but what of the person who is simply told of that event some time later? The position of rescuers has been problematic (see my article, ‘Rescuers and Nervous Shock’ (1999) 73 Australian Law Journal, 132-138), we expect them to turn out to these jobs and pay them to do it, we expect if not require a certain degree of resilience but we have to accept that being exposed to sights that most of use never see can have genuine, long term effects.

What happened
One shocking event was the Waterfall train disaster on 31 January 2003. Constables Sheehan and Wicks, members of the NSW Police, were on duty at that time. The High Court of Australia described what happened as follows:

In response to a radio message, Mr Wicks and Mr Sheehan were among the first to arrive at the scene, soon after the accident had happened. What confronted them was death, injury and the wreckage of the train. Because the overhead electrical cables had been torn down, and were lying across the wreckage, it was anything but clear whether it was safe to go close to the wreckage.

Some of those on board had been thrown out of the train. Many remained in the wreckage. Mr Wicks and Mr Sheehan each forced his way into damaged carriages. Some passengers were so badly injured that they were obviously dead. Some passengers were trapped, evidently seriously injured, and very distressed.

Mr Wicks and Mr Sheehan each did his best to relieve the suffering of the survivors and to get them to a place of safety. As further emergency workers arrived at the scene, Mr Wicks and Mr Sheehan each continued his rescue efforts and, later, undertook other tasks assigned at the scene. Each remained at the scene for a considerable time – Mr Wicks until about 4.00 pm; Mr Sheehan until about 2.00 pm. ([2]-[4]).

Both officers alleged that, as a result of what they say and did, they suffered a recognised psychiatric injury. There was no real dispute between the parties that Senior Constable Wicks had suffered such an illness or injury. Whether Constable Sheehan had suffered a recognised psychiatric injury was, however, a matter of dispute. ([14]).

Both officers sued the State Rail Authority of NSW for damages caused by the Authority’s negligence in the manner in which it operated the railway and the particular train. The Authority’s negligence was admitted. What was in issue was whether or not the Authority owed the police rescuers a duty not to expose them to the sort of sights and sounds that would lead to them developing a recognised psychiatric illness. The trial judge found against the officers who appealed to the NSW Court of Appeal (Sheehan and Wicks v SRA [2009] NSWCA 261). The Court of Appeal rejected their appeal, also finding in favour of the Rail Authority.

Civil Liability Act 2002 (NSW)
The critical issue in the case was the interpretation of sections 30 and 32 of the Civil Liability Act 2002 (NSW). Relevantly, section 30 says:

(1) This section applies to the liability of a person (“the defendant”) for pure mental harm to a person (“the plaintiff”) arising wholly or partly from mental or nervous shock in connection with another person (“the victim”) being killed, injured or put in peril by the act or omission of the defendant.
(2) The plaintiff is not entitled to recover damages for pure mental harm unless:
(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or
(b) the plaintiff is a close member of the family of the victim.

Section 32 says:

(1) A person ( “the defendant”) does not owe a duty of care to another person ( “the plaintiff”) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:
(a) whether or not the mental harm was suffered as the result of a sudden shock,
(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,
(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,
(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

The decision at trial and in the Court of Appeal
In the latest edition of my book, Emergency Law (The Federation Press, 3rd ed, 2010, pp261-264), I described the outcome in the NSW Court of Appeal as follows:

The Court of Appeal upheld the trial judge’s decision that the officers did not witness the victims “at the scene … being killed, injured or put in peril …” The Court found that the intention behind the legislation was to limit the class of persons that could recover from mental shock to those that saw the very accident happen. The officers attended to the aftermath of the accident but did not see the accident occur and therefore were excluded from the class of possible claimants. It was held that it was the derailment that put the victims in peril and caused their injuries and death so

When the appellants arrived the derailment, as the incident which killed, injured and put in peril passengers in the train, was over; there was no consequential event such as the falling of the stanchion knocked loose in the collision. The process of victims being put in peril had ended, and the appellants witnessed what some cases … refer to as the aftermath. ([76] (Beazley JA, with whom Giles JA agreed).

That is a very narrow interpretation. It was arguable (and was argued) that the incident was not over and that the passengers continued to be ‘in peril’ and at risk of being killed by their injuries, or injured in the course of their rescue. The Court was not without sympathy to the plight of the rescuers but they had to give effect to the words of the Act as passed by Parliament and they found it was Parliament’s intention that the right to recover was limited to those that observed the very incident or accident.

McColl JA took a broader view. She said

Examples can readily be brought to mind in which an accident may occur, for example the collision of motor vehicles, in which the victim is neither killed nor injured at the moment of impact but, because of the circumstances of the collision, is “being … put in peril” until rescue because of the danger of the motor vehicle exploding. Should rescue attempts fail and the victim be killed or injured in an explosion after the immediate impact, those present would witness the victim “being killed, or injured…” An example more immediately relevant to the derailment in this case, would be if one of the carriages containing passengers had been left teetering on the edge of a cliff so that when the rescuers arrived they observed passengers “being … put in peril” if the carriage plunged over the cliff. Or … if victims in one carriage were “being … put in peril” because another carriage might crash onto them. ([145]).

She concluded that the Act did not require that the plaintiff had to “have been present at the time of the principal causal event, in this case the derailment.” Rather a finding that the plaintiff witnessed the people being killed or put in peril will depend on the particular facts of each case. ([150]). She held that the trial judge was wrong when he found that the plaintiff police officers could not recover because they “were not present when the derailment occurred” ([155]). That finding gave little comfort to the injured police as she still found that the police had to observe the injured being killed or put in peril and that did not happen in this case.

The concern about the power lines was, on the evidence, concern that the rescuers felt for their own safety, not the safety of those trapped in the train. Further

… evidence that the victims’ conditions may deteriorate did not constitute them “being put in peril” … They had been injured and, like all in that position, required expeditious medical treatment. But they were not exposed to a danger which was a sequelae of the derailment in the sense that some aspect of the derailed train and/or the surrounding environment posed a danger. While a deterioration in their condition was a continuation of their original injury the evidence did not objectively demonstrate that they were imminently exposed to further injury ([163]).

Accordingly McColl JA found that a rescuer may be able to recover if they came upon an accident after it had initially happened, but only if there was something directly due to the accident that continued to cause peril, such as a fire at the scene or a falling structure that had been damaged by the accident. The fact that there are injured people there who are at risk of dying if not rescued is not the sort of peril that was intended by the legislation. Notwithstanding McColl JA’s disagreement on the interpretation of the Act, she agreed with Beazley JA that the particular plaintiffs could not recover.

The case goes to the High Court of Australia
Sheehan and Wicks took their case to the High Court of Australia that set aside the decision of the Court of Appeal, and gave an explanation of the meaning and effect of these sections. The High Court reminded us that for an action in negligence to succeed, a plaintiff had to show that there was a duty of care and then a breach of that duty. In this case the SRA had conceded that it had breached its duty (if the duty existed) so the question to be decided is, in the circumstances, did the SRA owe a duty to rescuers not to expose them to events that could foreseeably cause them to suffer a psychiatric illness?

Civil Liability Act 2002 (NSW) s 30
The SRA had relied on s 30 to argue that they were not liable unless the plaintiffs witnessed people being killed, injured or put in peril. The High Court said that was a misreading of the section.

Section 30(1) says when the section applies and s 30(2) explains that if the section applies, then the plaintiff gets no damages. The section only applies if the defendant would otherwise be liable to the plaintiff. The leading case in this area is Tame v NSW. In that case the judges held ([12] and [29] (Gleeson CJ); [89] [90] (McHugh J); [201] (Gummow and Kirby JJ); [275] (Hayne J)) that “… the central question is whether, in all the circumstances, the risk of the plaintiff sustaining such an injury was reasonably foreseeable ….”

That looks like s 32 which says there is no duty

… unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

To put that another way, s 30 doesn’t determine when or if the defendant is liable. Section 30 only applies if the defendant would, otherwise be liable, and it is a limitation or exception to the liability that would otherwise exist.

Civil Liability Act 2002 (NSW) s 32
Section 32 does talk about when a duty of care is owed. It says, critically, that a defendant does not owe a plaintiff a duty to avoid causing psychiatric injured duty of care “… unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.” The section does not say when a duty of care is owed, but when it is not.

The matters listed in subsection 2 are factors to be taken into account in determining whether or not the circumstances of the case would give rise to a duty of care. They are not an exclusive and in fact the section doesn’t say what is to happen if any or all of the matters listed in s 32(2) apply, or don’t apply. There may well be other relevant circumstances that can and should be considered before deciding whether or not “a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness”.

The correct process
The High Court said that the correct process was

1. To determine if there was a duty of care, and this required consideration of whether or not it was foreseeable “that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.” That is the effect of both the decision in Tame v NSW and the Civil Liability Act 2002 (NSW) s 32. The factors listed in s 32(2) are neither necessary nor sufficient conditions (that is the plaintiff doesn’t have to show that one of them applies; and even if one does apply, it does not follow that the duty of care will be established).

2. If the court finds that a duty of care does exist, then it has to decide whether s 30 applies to deny the plaintiff damages.

The problem in this case is that the trial judge and the Court of Appeal decided the second issue, without answering the first. To do this, said the High Court, was to “omit consideration of an important … question’ and meant that the other judges had read s 30 ‘divorced from its statutory context’ [15], and this was an error.

Because the trial judge and the Court of Appeal had made a mistake in their interpretation of the law, the appeal was upheld but this, unfortunately, is not the end of the matter. The Hight Court has sent the matter back to the NSW Court of Appeal to reconsider the case and decide whether, in light of s 32, a duty of care was owed before considering whether or not s 30 would apply to deny the plaintiff’s their damages. The Court of Appeal may well return the case to the trial judge to decide those issues and also other issues that have not yet been dealt with including whether or not the officers have a recognised psychiatric illness and whether or not it was caused by this event.

Section 30(2)(a)
The Court did provide some guidance for the lower courts on the meaning of s 30(2)(a) and what is meant by witnessing a person being killed, injured or put in peril. The High Court rejected the idea that the rescuers had to actually see the accident and that the risk of people being killed, injured or put in peril ended when the train carriages came to rest.

Although it was no longer possible to see people ‘being’ killed once they are dead, the officers certainly saw people being put in peril by the power lines and the dangers that they were exposed to in the course of being rescued. Death (or dying) ,being put in peril and being injured can occur over time, not always in an instant and whether one considers the risk to the passengers physical or mental health, they were ‘being injured’ during the time that Sheehan and Wicks were on scene and the officers ‘witnessed’ that. [48].

When the officers arrived those still in the carriages, those rquireing urgent or even non-urgent assistance remained ‘in peril’. Being ‘put in peril’ as used in section 30(2) is not limited to an immediate time but extends from the time of the accident until the victim is ‘… rescued by being taken to a place of safety’ [51].

Finally the Court said there was no need for the plaintiffs to show their psychiatric injury was casued because of what they observed with respect to a particular victim. In a mass casualty situation there is no need to show that it was observing a particular persons injury that overwhelmed the plaintiff’s senses, rather the phrases ‘another person’ in s 30(1) and the ‘victim’ in s 30(2)(a) should be read to include the plural, that is another person or persons and victim or victims [54].

Result
The result in this case should provide some solace for rescuers as the High Court has given a much more ‘common sense’ interpretation of the idea of witnessing ‘at the scene, a person being killed, injured or put in peril’ (s 30(2)(a)). The fact that the rescuer did not see the accident occur will not be a barrier to recovery if they attended upon the accident and observed people still at risk of further injury (in peril) or being injured including being injured by their own exposure to the traumatic scene.

The case will provide some comfort to Sheehan and Wicks by leaving open their claim for damages, however final resolution is still a long way off, as the matter has to go back to the Court of Appeal, and possibly back to a trial judge to finally determine whether or not “defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken” (s 32(1)).

The High Court has determined that the plaintiffs did witness, ‘at the scene, the victim being killed, injured or put in peril’ but that will only serve to allow them to recover damages if the answer to the first question is ‘yes’.
Given the matter has to go back to a lower court, there is also the risk of further appeals from the final decisions of those courts.

[Note references in [square brackets] are to the paragraph numbers in the judgements].

Or so reports the Brisbane Courier Mail.

The difficulty this article demonstrates is the effect of the exemption for the drivers of emergency vehicles under the Australian law. The Queensland provision, s 144 of the Transport Operations (Road Use Management) Act 1995 says:

Provisions of this Act about offences (other than section 79 and 80) do not apply to a police officer while exercising a power, or performing a function, under this or another Act.

(Sections 79 and 80 relate to driving under the influence of alcohol and drugs). Other provisions are found in the Australian Road Rules that are incorporated into Queensland law by the Transport Operations (Road Use Management – Road Rules) Regulation 2009. Section 306 says:

306 Exemptions for drivers of emergency vehicles
A provision of this regulation does not apply to the driver of an emergency vehicle if–

(a) in the circumstances–
(i) the driver is taking reasonable care; and
(ii) it is reasonable that the provision should not apply; and

(b) if the vehicle is a motor vehicle that is moving–the vehicle is displaying a red flashing light or sounding an alarm.

Neither of these sections make it clear when they are to apply. The article in the courier mail reports:

Under section 144 of the Transport Operations Act, police are exempt from some road rules when responding to a car crash, a disturbance or police in need of assistance and during pursuits and ambulance escorts.

But that is not what the section says. The section provides that the officer must be “exercising a power, or performing a function, under this or another Act” and whether or not the officer is doing that is debatable. Clearly internal affairs investigators are forming a view and if the officers are paying the fine they are accepting that view, but there is nothing to stop the police challenging the infringement in court if they believed they were acting to exercise a power or perform a function under an Act.

The Australian road rules provision says it only applies if it is reasonable that it should do so and if the driver was exercising reasonable care in the circumstances. Matters that could always be arguable depending on the circumstances.

Earlier provisions, such as the Traffic Regulations 1935 (NSW) s 65 (now repealed) provided that the driver was exempt the road rules if they were giving the best practicable warning possible, that is lights and sirens were activated. That did give a blanket exemption that could be relied on when it was inappropriate but at least drivers of emergency vehicles knew where they stood. If the lights and sirens were on, they would not get a ticket but could be subject to internal discipline if they were abusing their power. It must also have made it easier for enforcement agencies (the police or RTA in NSW) to see that if the photo showed a fire truck, ambulance, police car or the like with the beacons flashing, that a ticket should not be issued.

Under the current law, the driver of an emergency vehicle cannot know if he or she is exempt from the provisions until an internal investigator has looked into the matter, and invited the officer to respond (at what time and cost?) and then come to their view as to whether the officer was acting in the exercise of his or her duty or acting reasonably. A prudent, self interested police officer, fire fighter, ambulance officer might well decide that operating with lights and sirens isn’t worth it. A volunteer emergency worker may well decide that being a volunteer fire fighter or SES volunteer is OK provided they don’t have to do the driving.

This can’t be good for emergency response in Queensland or anywhere.

Michael Eburn

The ABC reports that litigation arising from the 2003 Canberra fires starts in the ACT Supreme Court today, Monday 1 March 2010. Read the story here.

This litigation will be very significant in determining the legal duty of care owed by fire agencies and governments to the communities they are established to protect, as well as what may reasonably be expected from them in extreme events. The trial is listed for 12 weeks and there the judge will need to weigh through the evidence in order to determine the legal issues.

It is my prediction that regardless of the result, there is likely to be appeals so a final answer to some critical questions may well be some time off.

Michael Eburn
1 March 2010.

Another interesting story from the Sydney Morning Herald reporting that three canyoners have been charged over putting themselves in danger such that they needed assistance from police, ambulance paramedics and the National Parks and Wildlife Service. See the full story here ‘Reckless’ Blackheath canyoners to face court after rescue‘ (see also second story, ‘Sydney canyoner in Blue Mountains rescue‘, Sydney Morning Herald, 17 February 2010).

There is a debate about whether people should be required to pay for their own rescue (see for example, Huss, Sheila M. (2010) “Liability in Search and Rescues: Should Individuals who Necessitate Their Own Rescues Have to Pay?,” Journal of Homeland Security and Emergency Management Vol. 7: Iss. 1, Article 2.)

It is not clear what sections are involved but it appears that it may be the National Parks and Wildlife Regulation 2009 (NSW):
* Clause 4 which empowers the National Parks and Wildlife Service to give directions with respect to the use of the park, including directions by sign, and makes it an offence to fail to comply with that sign.
* Clause 22 makes it an offence to “engage in any activity or recreational pursuit that involves risking the safety of the person or the safety of other persons…”

In each case the maximum penalty is 30 penalty units (a penalty unit is $110 – see Crimes (Sentencing Procedures) Act 1999 (NSW) s 17).

In a criminal prosecution the question is whether or not the accused have failed to comply with terms of the statute. The Crown must prove its case beyond reasonable doubt. If successful any penalty is paid to the consolidated revenue and is determined by reference to the maximum allowed penalty, rather than the actual cost of the offence, in this case the cost of the rescue. On it’s face then, this is not an action to recover the cost of the rescue.

Notwithstanding this the defendants, if convicted, can be ordered to pay compensation to ‘an aggrieved person’ that is “a person who has sustained loss through or by reason of (a) an offence for which the offender has been convicted …” (Victims Support and Rehabilitation Act 1996 (NSW) s 77A) Under law, The NSW Police, NSW Ambulance, National Parks or the government may be a ‘person’ for the purposes of the act and could, arguably, seek an order on the basis that the loss suffered is the cost of the rescue!

Whether that is what they intend to do remains to be seen. It would seem unlikely and a Magistrate may find it difficult to justify (see s 77D) ordering an individual to pay for what was, probably, a very expensive rescue. It is more likely that the police will be satisfied that a criminal prosecution and possible penalty will drive home the message of personal responsibility, rather than seek to recover the costs of the search. It will, however, be interesting to keep an eye on this case to see how it turns out if the defendants are found to be guilty of the offences charged.

If the police do seek to recover the costs of the rescue that would be a new and unusual step in Australia but may indicate a new ‘get tough’ attitude by the emergency services.

Michael Eburn
17 February 2010

Litigation from bushfires in New South Wales in 2001 is proceeding in the NSW Supreme Court.

Read the full story from the Sydney Morning Herald.

‘Failure to warn’ litigation is an increasingly attractive option for litigants but it faces it’s own problems. For my analysis read my article ‘Litigation for failure to warn of natural hazards and community resilience’ (2008) 23 Australian Journal of Emergency Management 9-13.

Michael Eburn
12 February 2010

Look at the attached file for links to all Australian emergency services legislation. Links are to the website maintained by the Australian Legal Information Institute (AustLII) as well as to official government legislation sites. The AustLII versions are often easier to navigate and all look the same, but the official sites are, as the name suggests, official. Use the version that suits you best.

Go to the index

Michael Eburn
28 January 2010