A NSW volunteer firefighter has written to me with this question: ‘The new OHS laws as of 1/1/12 classify us “workers” and as such become liable in the case of accident. Put simply: The scenario: Responding to a fire I am rolling a hose of the truck, I trip and the jet hits a person in the face and blows out an eye. Can I be held liable in any way, and subject to the very stiff penalties of up to $300,000?”
Uniform Work Health and Safety laws were meant to be in place across Australia on 1 January 2012. Not all the states have met that deadline but it is expected the uniform laws will come into effect during the year. They have already been enacted in New South Wales as the Work Health and Safety Act 2011 (NSW).
As my correspondent has noted, the new Act says that the term ‘worker’ includes a volunteer (s 7). What is not correct is that a worker is ‘as such’ liable in the event of an accident. Liability under the Act is not automatic and does not apply every time there is an adverse event. What the Act says is
“While at work, a worker [including a volunteer] must:
(a) take reasonable care for his or her own health and safety, and
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and
(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and
(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.”
The problem with commenting on a scenario such as the one I’ve been given here is that there are not really enough facts. A prosecution depends on so many factors, so for example there may be liability if the fire fighter slipped because he attended the fire knowing he or she was under the influence of alcohol, was deliberately wearing inappropriate footwear or was playing the fool. Let us assume none of that applies. Let us also assume that they have done nothing in blatant disregard of brigade policy or standing orders, for example they are using the hose couplings appropriately.
Slipping in a fire ground is always a risk; the Act does not require that anyone reduce risk to zero, it has to be reduced as far as reasonably practicable, taking into account factors such as the cost and difficulty of avoiding the risk in the context of the task to be done (s 18). That section says:
In this Act, “reasonably practicable”, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
(a) the likelihood of the hazard or the risk concerned occurring, and
(b) the degree of harm that might result from the hazard or the risk, and
(c) what the person concerned knows, or ought reasonably to know, about:
(i) the hazard or the risk, and
(ii) ways of eliminating or minimising the risk, and
(d) the availability and suitability of ways to eliminate or minimise the risk, and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
We cannot make fire fighting risk free nor is that expected. The Rural Fire Service should understand what risks fire fighters face and take steps to minimise that risk, that would include thinking about ensuring surfaces on trucks are non-slip, that fire fighters have appropriate footwear, perhaps that nozzles turn off if they are dropped, that hoses are capable of withstanding the pressure of the water from the pumps etc. None of this requires pointless written risk forms completed on the site, but risk assessment done long before anyone turns out to a fire.
The duty on the fire fighter is not to reduce the risk but to take reasonable care of their own safety. As with reasonably practicable what is ‘reasonable’ depends upon all the circumstances, including the need to perform the task they are there to perform. It is impossible to say, in advance, what is reasonable but any consideration must take into account all the circumstances. Further, following the decision of the High Court of Australia in Kirk v Workcover [2010] HCA 1, the prosecution cannot simply point to the fact that there was an accident to show that somehow reasonable care was not taken, they need to identify what the defendant should and could have reasonably done to avoid the particular event and they need to prove, beyond reasonable doubt, that had the defendant take some other action, the outcome would have been different.
A hypothetical scenario misses many essential facts, but it is crucial to ask – what else could the fire fighter have reasonably done to avoid the injury? In the scenario I have been asked about if there is a failing, the liability would fall on the NSW Rural Fire Service, not the individual. In fact imagining when an individual may be prosecuted is very hard. An example may be where, as some perverse form of induction, new members are lined up against a wall and sprayed with water from a high pressure fire hose and an injury is suffered. In that case an individual may be prosecuted, but short of that it is hard to imagine when the individual would be prosecuted.
The National Compliance and Enforcement Policy issued by Safe Work Australia indicates that the relevant law enforcement agencies have a number of options and tools to encourage compliance with work health and safety duties that fall far short of prosecution. A minor mistake by a volunteer in emergency circumstances is unlikely to result in prosecution as that would not be an effective way to remedy the issue.
One can never say never, so the cautious lawyer would say, in response to the question asked, it is extremely unlikely that a prosecution would occur in the situation described. I would go further and say it so unlikely as to be regarded as far-fetched and fanciful. Fire fighters should remember that paid fire fighters have always been subject to work health (or occupational health as it was called) and safety duties and they have never been prosecuted for breaches of the relevant Act. Victoria SES was prosecuted over the death of a volunteer during a training exercise and NSW Fire Brigades (now NSW Fire and Rescue) were prosecuted over failings in their approach to a fire in a silo that resulted in four factory workers being killed. In neither case was a volunteer or individual prosecuted. Volunteers have also been subject to OHS law in the ACT, the NT and Queensland but again have not been prosecuted.
Volunteers should see the new laws as an attempt to extend protection, to ensure that the organisation for which they volunteer has the same legal duty to take steps to look after their interests, as it owes to the paid staff. The fact that volunteers now also owe a legal duty is really nothing significant. They owed legal duties to their colleagues and others before, just not under work health and safety legislation.
Work health and safety legislation also has to be read in the context of fundamental legal principles that apply to the criminal law. In the event of a prosecution the prosecution must prove its case beyond reasonable doubt, the negligence of the accused must extend beyond mere negligence to a standard that can be described as gross or reckless negligence. Even if the offence is proved, the penalties provided for in an Act are maximum penalties, for the worst offence by the worst offender. The fact that a person is a volunteer in the emergency services would be taken into account and penalties can be reduced to no conviction, and no punishment, in appropriate cases (see Crimes (Sentencing Procedure) Act 1999 (NSW) s 10).
The risk of getting prosecuted for a breach of the work health and safety laws is extremely low, and in the scenario presented, non-existent. If you are worried about being prosecuted for your volunteer work you would be much more concerned about the various traffic offences that you may commit when driving an emergency service vehicle; remember that negligent driving causing a serious injury carries a maximum penalty of 7 years imprisonment, 10 years if death is caused (Crimes Act 1900 (NSW) s 52A; see also my blog post regarding a CFA fire fighter charged after a fatal accident). The fact that you are driving an emergency services vehicle, even with the lights and sirens activated, will of course be relevant but it is not a defence.
For more discussion on the application of the new laws to volunteers and the emergency services see my paper ‘Changes to occupational health and safety laws and the impact on volunteers in the emergency services’ (2011) 26(4) Australian Journal of Emergency Management 43-47. See also the various fact sheets and information put out by
- Safe Work Australia and
- The NSW WorkCover Authority.
Michael Eburn
5 February 2012
Australian Emergency Law 
Hi Michael, I am a captain of a NSWRFS brigade in a high risk bushfire area. I am also the proponent of the NAPA proposal. As captain of my brigade I am unsure as to how I determine whether my front line firefighting members are fit for service under new WHS legislation. I understand that the ACT have a fitness standard and that NSW is supposed to be falling in line with them.
Our staff are unwilling to add any definitive SOP on this issue probably because of the effect it will have on volunteern frontline numbers. What as Captain should I be telling my volunteers? This is not an issue that has just arisen, it has been on the cards for ages. Yet can we or can’t we send members to the front line without having a fitness standard to guide us? Thanks
Rob
Your question warrants a lengthy answer, so I may not be able to do justice to it here. The first thing to consider is what is your obligation. You are a volunteer captain in the RFS, your duties are that of a volunteer – that is you are required to
There are further duties imposed on ‘officers’ (s 27) but a brigade captain is not ‘an officer’ within the meaning of the term in Work Health and Safety Act and even if they were, volunteer officers cannot be prosecuted for breach of an ‘officer’s’ duties (s 34(1)). Whatever you are required to do, you are only required to do it to the extent that it is reasonably practicable, that is you don’t have to guarantee safety (and see s 18 for advice on what ‘reasonably practicable’ means).
Finally the modern view of WHS is that it is collaborative and consultative – so what do you have to do? As brigade captain you need to know what the RFS says? Do the have a fitness for duty standard? If they did you would be duty bound to apply it (s 28(1)(c)) and (d)). You say they do not so you can’t apply that. You need to think about their other policies, has the volunteer been trained, and demonstrated competence? You cannot discriminate on certain grounds and that’s been explored in other posts. What is the risk? What can be done to reasonably reduce that risk? If a person can’t do a task, then they can’t do the task and it’s not discriminatory not to stop them doing it, but is there ‘reasonable adjustment’ that can be made? If you know of the issue well before you can make adjustments in what people are asked to do; if it only becomes apparent once they are on the fireground then that may be harder.
If you are concerned about the fitness of a firefighter they too have a duty (s 28(1)(a)) to look after themselves, to assess their own fitness, so talk to them about your concerns. If you think they need a medical assessment or clearance that is really not your call as a brigade captain but the organisation has health and safety people, so you ring them and talk to them and get their advice, and follow their directions. If, in response to a call out, a person shows up and is clearly incapable, then as Brigade captain, send them home just as you would if they were intoxicated or had just come off an ardous night (or day) shift and clearly needed rest. Equally all members should be encouraged to do the same, it’s just good practice to ‘look after your mates’ and not have a hero mentality (ie ‘we’ve all got to go ‘for the team”). Your volunteers have to be encouraged and allowed, without any fear of being teased or bullied for letting the team down, or not being ‘man’ enough for the job’, to say ‘I’m not up for this today – I’m tired, I’m unwell, I’m injured, I thinks this job is going to be beyond me’) so saying to a fellow volunteer ‘mate, you don’t look too good, perhaps you ought to sit this one out’ should be encouraged and seen, not as telling people what’s good for them, but as helping a mate – see http://www.ruokday.com.au/content/home.aspx.
If you think this is a matter of serious and general principle, and the RFS should have a fitness for duty policy, the Act provides that they, as the person conducting the business, must have in place appropriate consultation process (see Part 5) so you raise that in accordance with the systems in place.
So what should you be telling your volunteers – perhaps words to the effect of:
Michael Eburn
Thank you so much Michael. Your input is most helpful. The only issue I am unclear on is that the new WH&S laws as I understand are Nationally aligned. If one state or territory has implemented a fitness test specifically for frontliners, would it be unreasonable to expect that same test for the same front line “workers” in all states? I think it would be appropriate for our PCBU to issue a statement as many volunteers are wondering the same thing. Paid ems workers of front line capabilities are all required to be fit, what is different for volunteers? Thanks Michael
Rob
The Act is meant to be national, but that doesn’t mean its implementation will be. So the Act, nationally, requires a PCBU (a person conducting a business or enterprise) to do a risk assessment, but different PCBUs, even in the same industry, will come to different conclusions as to what’s ‘reasonably practicable’. Of course if one State has implemented a fitness test that may be something another wants to take into account – to ask it is reasonably practicable and warranted to do the same. I understand actually working out what test is actually applicable is not easy – see for example research being conducted by the Bushfire CRC at http://www.bushfirecrc.com/category/projectgroup/11-occupational-health-and-safety-and-surge-capacity.
What’s different for volunteers is that they are volunteers – if we make it too hard they’ll just leave; employees you can use the stick/carrot of their pay packet to encourage them to take action, and where you have firefighters sitting on a station for some time, you can provide a gym etc. Depending on volunteers is both a wonderful benefit but also a problem for our emergency capacity. The fact that volunteers are volunteers is relevant in deciding what’s ‘reasonably practicable’. That’s not to say it shouldn’t be done or that people who are not operationally fit should be allowed to respond – but again if you look at s 18 of the Act and the factors to be considered in what’s ‘reasonably practicable’ the fact that they are volunteers must be relevant.
Michael.
Once agian thankyou Michael, I guess it is the capacity issue that is becoming the big problem. Eastern Central Tablelands, Western Canberra and Northern Melbourne where rural meets urban interface is of most significant concern. Many of the landholders are absentte owners and make up a large percentage of our volunteer numbers but simply do not live here. This leaves a huge responsibility on the limited remaining volunteer numbers (normally long term farmers) to deal as best they can with the emergency. This is very much the situation my area finds itself in. Limited expereinced volunteers, lots af absentee owner volulunteers with limited experience and we are on the prevailing weather side of the Blue Mountains, Sydney Catchment and Cumberland Plain generally. It is this that makes us feel particularly exposed. The demographic of volunteer availability has changed for the worse over the last ten years but has changed so much more in these specific areas due to absentee land owners that primary rural residents now feel particularily vulnerable. Would appreciate your thoughts.
Rob
Clearly relying on volunteers has both costs and benefits. How to recruit volunteers, both long term and casual volunteers in an emergency, takes up a large amount of discussion in both practitioner and academic journals. The commitment by COAG to develop ‘Resilient communities’ will have to address that very issue – and also address the issue that resilience depends on much more than having people (volunteer or not) ready to ‘turn out’. As we know preparation is more effective than ‘response’ in dealing with these hazards, so maybe we legislate to impose penalties and consequences on those that don’t prepare – but will the community tolerate that, and who’s going to fill the role of ‘the fire police’? These are clearly issues governments (at all levels), researches, agencies and individuals will have to consider both in the short and long term. I certainly don’t have any answer.
Michael.
Once again thanks Michael, I have blogged but not sure if I pressed post comment as I had one last comment / question. Our location is in the Eastern Central Tablelands of NSW (Oberon). We have very similar land ownership to that of the West Canberra and Northern Melbourne semi rural areas. That is decreasing full time farmers and increasing absentee owners. We are seeing more subdivision and the creation of smaller farmlets that are secondary residences, and less larger full time farmers. So essentially the same amount of farm land with more assets with less primary residents. All the rural or semi rural resdents are (generally)members of the volunteer RFS brigades and therefore statistically contribute to the NSWRFS 70000 membersip number. In reality a large majority of these members at this high risk rural interface are a)non primary residents (visit infrequently) and do not live here and b) are non frontline firefighting volunteers as they cannot train and have no experience.
What this means is many less estabished farming volunteers taking on more responsibilities as fronliners in protecting much more land. This is a well documented problem and one I believe the NSWRFS is struggling to deal with. As a 7th generation land manager in these high risk parts i have never felt more exposed to the risk of bushfire damaging our assets and community.
So changes to WH&S laws, exponentially decreasing fronline active volunteer numbers in these semi rural areas (West Blue Mts, Canberra, Nth Melbourne) and diminishing skills due to two wet years paints a worrying picture.
I certainly understand that the volunteers are very well protected and a huge asset but where does the responsibility of the NSWRFS end. If there is a proven lack of service delivering volunteers in terms of frontline first response and fireline roles, what does a community do to protect itself. Does the NSWRFS still have a statutory obligation to provide a bushfire service? Sorry if this waffles a bit Michael but I am sure you will get the gist of my blog. Look forward to your thoughts. Thankyou
Where does the responsibility of the RFS end? The RFS is to provide rural fire services but it is limited by its own resources, that is it can’t do more than it can do. The modern view of hazard management is that communities cannot, particularly on extreme days, count on the fire service to ‘come to the rescue’ hence the whole focus on taking steps to prepare and making decisions to stay and defend or leave on fire danger days. The RFS has a statutory obligation to provide fire services but the extent of that is up to government; in Warragamba Winieries v NSW the Supreme Court has confirmed that the duty is a duty owed to the community at large so there is no duty to rescue or come to the aid of particular individuals, the service has to decide how to allocate its scarce resources for the community good which may well leave people in harms way. What we hope communities do to protect themselves is take steps to develop their own resilience by preparing properties and taking steps for their own protection such as joining the RFS. How that is managed in the future with changing demographics and predicted climate change is a matter that governments and communities will have to make choices on, but there is no simple rule and certainly no legal obligation on the RFS to say move from a volunteer based fire service to some other structure.
Michael, thank you I find the discussion in this blog most constructive. In a community where demographic changes in terms of land ownership (increased absentee ownership) were forseeen and well documented and community concerns raised as a result in terms of the likely decereased capacity in terms of volunteer availability and experience, is the Government not obliged to act? Are you suggesting that the community at large should be prepared not to see a fire truck “turn up” as a result of the diminished volunteer capacity of the NSW RFS in these high risk areas on days that are high risk? Does this get the Government of the hook in terms of its obligation to its protect its communities from bushfires. That is how it appears.
I challenge the assertion that just because our volunteer capability is diminishing in terms of front line firefighting numbers that the Got should not explore other options that may in fact bolster the capacity of a volunteer service, ( paid specialists). After all the taxpayer / insurance policy holder still pay their dues. Would specialists even reduce the cost of bushfires due to their expertise in reducing the effect on communities due to their unique skills and standards, ie strict fitness, medical and physcological requirements.
This specific issue has been raised and the common response of course of the NSWRFS executive is that “your area is well resourced”. This is definately a contradiction to what some communities are passionately telling the NSW RFS executive. Your thoughts would be appreciated.
Rob
Rob
I understand from previous e-mails that you are encouraging the RFS to employ, or contract with private providers, to ensure a supply of employed fire fighters on the basis that employees would be screened for fitness etc and as employees will be better able to respond than volunteers. This is required as I understand your argument, because the absence of permanent residents and other factors are leading to decreasing volunteer numbers and that exposes individuals and the community to heightened risk.
In addressing the issues you’ve raised, and with that background in mind, I’m going to address the law, not the rights or wrongs of the situation. You ask ‘is the Government not obliged to act?’ The legal position is that there is no duty to rescue, that is no-one including government is obliged to step in to rescue people from dangers that the ‘rescuer’ did not create (see Stuart v Kirkland-Veenstra [2009] HCA 15; Graham Barclay Oysters v Ryan [2002] HCA 54; Warragamba Wineries v NSW [2012] NSWSC 701, etc). Government’s aren’t obliged to provide fire fighting services, they do it because they chose to do it, because they see that as an important role of government but that view is based on political theory (and real politik, the MP who says they’re going to scrap the RFS is not going to get elected), not legal obligation. Recognition of this, and the resource limitations are behind the current policy to reinforce that hazard, including fire management, is a ‘shared responsibility’ and fire danger warnings that do say you cannot expect a fire truck particularly on extreme days and that is, of course because of resource limitations, including the fact that our fire services rely on a volunteer capacity.
Even if the government is obliged to provide fire services, they cannot be obliged to provide the service that an individual or community want. The Rural Fire Service is required to provide fire services for the entire state not just a part of it, so the administration of the service has to make decisions how best to use its scarce resources. In terms of civil liability, you cannot sue a government or a government agency over policy decisions (eg that we will have a volunteer fire service vs a paid one) or how resources are allocated (eg we’re going to invest in PPE instead of tankers) (see Civil Liability Act 2002 (NSW) Part 5). An agency, such as the RFS can only be expected to use the resources it has, not the resources we wish it had, and it’s liability has to be assessed as against all its tasks, so you may one day when there is a devastating fire, say ‘we told you that would happen so you should have prepared for this fire in this area’ but the RFS has to prepare for fires all across the state and that has to be considered when asking in any given case, was the response ‘reasonable’ (again see Civil Liability Act 2002 (NSW) Part 5).
Decisions on how to allocate resources, that is should the government spend more money on fire services, or hospitals, or schools or prisons or whatever else in the list of government priorities, are political, not legal and courts will not intervene in those decisions. Because they are political the remedy is in politics; if you don’t like the decisions governments are making your remedy is to vote for the candidate that promotes policies you agree with, or else run for office yourself.
In summary, governments do not have an obligation (at least not a legal obligation) to protect communities from bushfire; communities do have to be prepared not to see a fire truck because of diminished volunteer capacity, if people don’t like that, then they need to volunteer to join the local RFS – no-one’s coming if they don’t come themselves; the government should indeed explore other options to bolster fire fighting and emergency management capacity but emergency management is not the only demand on government resources and how governments allocate resources across services is a fundamental and core government decision. The fact that some communities think they are not ‘well resourced’ will depend on what they see as a key priority, and whether they think resources should be spent on fire fighting, or police, or schools, or health services, or governments should butt right out of the process all together. Minds will vary on this; the solution is politics, ie we elect people to make those decisions. If we don’t like them, we can vote for someone else. Those decisions are not justiciable, that is they are not decisions that can be challenged in court either before, or after, a hazard event such as a bushfire.
Michael Eburn
Thanks Michael, so as I now understand it, vulnerable bushfire communities really just have to put up with what they have got in terms of emergency response. Whilst to a rural resident in a high risk bushfire resident this may be of concern, I guess the NSWRFS is what it is. It certainly cannot offer what it does not have.
What is the “duty of care” that the NSWRFS owes to insurance policy holders and payers of the fire services levy. Would it be fair to assume that payment of a levy amounts to fee for service? Volunteer or paid is really irrelevant I would feel, either way a minimum service should be expected given this fee. If this is not the case then what is the purpose of this levy and should the insured be paying? Is it tried that the emergency responder (NSWRFS) is not liable at all for whatever they may or may not provide in terms of a service or is this a professional opinion?
I understand fully the requirment for the Government to allocate taxpayer dollars to the most rational public good (services and infrastructure) but when funding is collected by the Government from the insured public for protection of their properties from bushfire, shouldn’t that protection be guaranteed? Look forward to your thoughts.
Thanks Michael
Rob
The RFS will not owe a duty of care to the insurance companies that pay the levy. It is not a fee for service; they (and the councils) pay the levy because they are required to do so by law (see Rural Fires Act 1997 (NSW) Part 5), not because they are entering into a contract for a service. It’s like tax, we all pay tax because we are legally obliged to do so, but we don’t get a direct say in how it is spent and you can’t claim your share of education, or defence or other government service on the basis that you pay tax. The purpose of the levy is to fund the emergency services but whether or not insurance companies should be paying it, and passing the costs to their policy holders, is a matter of debate, see http://haveyoursay.nsw.gov.au/esl.
You ask ‘Is it tried that the emergency responder (NSWRFS) is not liable at all for whatever they may or may not provide in terms of a service or is this a professional opinion?’ It’s my professional opinion that generally speaking the RFS and the fire services do not generally owe a duty to individuals, and where they do owe a duty it is generally a duty not to make the situation worse. That is based on many cases and legal theory about the role of government, tort liability of government agencies and precedents from overseas and Australia. There is little direct authority on the point as the RFS are rarely sued. The only relevant case involving the RFS is Warragamba Winery v NSW where the judge found that the RFS did not owe a duty of care to the property owners. It is not possible to explain here all the authorities and if and when a duty will be owed, but the issue is discussed in the judgement from paragraphs [678] to [743] and in my book Emergency Law (3rd ed, 2010, The Federation Press), (which His Honour cited.) We will get further analysis when we see the judgements in the litigation arising from the 2003 Canberra fires and the 2007 Hobart Myer fire.
None of those decisions will be significant precedents, what is required for that is the decision of a superior court; a court of appeal or the High Court of Australia. Pending that we have to make a best judgement on the authorities available including a string of High Court Authorities dealing with a variety of issues involving governments and their agencies. The opinions I’ve expressed here are my opinion, based on the readings of those authorities and 24 years post admission experience, so yes, it is a professional opinion, subject to the limitations that it is expressed in a blog and is not an analysis of a particular, actual, factual scenario.
Michael
Thanks again Michael, I am enjoying this discussion (blog) . I do understand the judgements handed down in the cases you have cited. Whilst I may not agree with them, the law is the law. I feel that if the plaintiffs in these cases had the resources and mounted an appeal it would be most interesting to see the outcome.
The law is the law and as it stands it seems as though really, with a huge void of volunteers to administer the bushfire fighting roles in high risk areas it is just tough luck on the part of landowners if they are burned out.
An interesting question would be could the NSWRFS be liable for making the “situation worse” by not turning up due to lack of resources even on a non catastrophic day?
I find it more than frightening that with the large amounts of Govt literature outlining the diminshing capabilities of our volunteering strength (due to a number of factors), and the increasing budgetry requirments of our fire agencies that they have no “real” obligation to do anything at all. Scary prospect. Are there any precedents to similar actions in other states or countries?
Thanks Michael
Rob
I’m glad you’re enjoying the discussion but we may have to draw it to a close with this reply. You said that it would have been interesting to see the outcome if the plaintiffs in these cases had appealed; I’m not sure what you mean by ‘these cases’. I mentioned Warragmaba Winery v NSW but it’s only just been delivered. We’re yet to see a result from Canberra 2003 or Hobart 2007 so we don’t know what the parties will chose to do. All the other cases cited in this blogs and in the judgements are from appeal courts, most often the High Court of Australia.
No the fire service cannot make it worse by not showing up; there is a distinction in law between an act of omission and commission. One has to be under a duty to do something before one can be liable for not doing something.
As for precedents in other states and countries the High Court authorities relevant to the issue come from all over Australia and in Warragamba Winery the judge thought his findings accorded with English, Canadian and New Zealand authorities. The leading case on the liability of fire brigades, though it’s standing in Australian law is yet o be determined but that will, we expect, be a crucial issue in the Canberra litigation, is Capital and Counties v Hampshire Council [1997] QB 2004 a UK case where the court of appeal said:
In Stuart v Kirkland-Veenstra Crennan and Kiefel JJ of the High Court of Australia said:
They agreed with the other judges that the police officers in tha case were not under a duty to protect the deceased from his own decision to commit suicide.
Lots of things are tough luck, like being burned out by Bushfire, catching hepatitis from contaminated oysters, being injured by rocks thrown from bridges, diving into shallow water and being injured, but the government can’t and doesn’t have to protect us from all those things. Governments do have to take care when hey do hangs and there are cases when they are under a duty to protect others, when the others are particularly vulnerable, where there are things that only the government can do, where the statute not only allows, but requires action etc. but that does not, on current authority, require the government to guarantee a level of fire service that accords with what a constituent thinks it should be.
Michael
Hi Michael
I’m so glad I found this blog. Your article has helped me immensely in the capacity of the Branch WHS Advisor (Volunteer role) for Surf Life Saving SNB. I have presented to the SNB Branch Board of Management (Club presidents) utilising a presentation provided by the State Branch of surf, and portrayed a positive message regarding the WHS Legislation.
There has been much discussion since about whether a individual surf club is a PCBU, if they do not ‘employ’ any paid workers.
Does the definition of ‘employ’ extend to engaging the services of someone to clean e.g. a contract cleaner, the premises? Alternatively, if a part of the premises/club was made available for living quarters, rent free/not leased, in exchange for cleaning services or as a general caretaker, by those living on site would the tenants be regarded as ‘employees’.
How broad is the definition of employ.
At odds with this conversation is the definition between a volunteer association and volunteer organisation.
Do have any advice on this?.
Richard
I’m not sure in ‘Surf Life Saving SNB’ what ‘SNB’ means, but I’ll assume nothing turns on that. A PCBU is an entity that employs someone. Surf lifesaving is a PCBU but in my view an individual surf club, that employs no-one, is not a PCBU. Whether the concept of employ extens to someone who is cleaning the premises depends on the circumstances of the agreement. If you are engaging a commercial cleaner, who operates their own business, provides their own ‘tools of trade’, is responsible for paying their own tax etc then they are an independent contractor, not an employee. They will be a PCBU but that will not make the surf club a PCBU – see http://www.safeworkaustralia.gov.au/sites/SWA/Legislation/volunteers/Pages/Determining-subject-WHS-laws.aspx.
Allowing people to live on premises rent free in return for cleaning may on the other hand, equate to employment as you are giving a benefit (the home) in exchange for a service – I imagine that would be subject to at least FBT and then there would be questions of who provides the equipment and whether there is a power to direct or control the person on when and how they do the cleaning. The question of when is someone an employee is not always easy to answer but the courts do look for those sort of indicia that normally relate to employment, who gets to give direction? Who provides the tools of trade? Who is responsible for tax etc.
I agree that the material on the Safe Work Australia website can be a bit confusing when they use the term ‘volunteer association’ and ‘volunteer organisation’. A volunteer Association is ‘a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association’ (Work Health and Safety Act 2011 (NSW) s 5). Volunteer organisation is not defined anywhere and it is my view that the term ‘volunteer organisation’ should not be used as it doesn’t actually mean anything. I think they mean ‘an organisation that uses volunteers’ (but that may be a very large industry with lots of employees, eg a hospital). I think if you substitute the phrase ‘an organisation that uses volunteers’ wherever you see ‘volunteer organisation’ then you get a more accurate picture of the law.
Michael Eburn
5 July
One more on the discussion, that arose above on whether there is a duty or obligation upon fire services to actually attend and fight a fire; this is from the USA:
Charles Albert v. City of Billings, 2912 Mont. LEXIS 208
The plaintiff sued the Billings Fire Department for taking a defensive approach to fighting the fire in his cluttered and dangerous home, with the result that the home was lost.
“Addressing Albert’s negligence claim, the District Court held that the public duty doctrine precluded Albert’s negligence claim because the City firefighters owe a legal duty to fight fires to the public at large, not to Albert individually.”
Source: Larry Bennett, Fire, EMS & Safety Law Newsletter, August 2012, http://aerospace.ceas.uc.edu/FireScience/fire-ems-safety.html