I have previously written on the application of OHS laws to the emergency services (see my article, ‘Changes to occupational health and safety laws and the impact on volunteers in the emergency services’ (2011) 27(4) Australian Journal of Emergency Management 43-47). I have made further comment on work health and safety laws, in particular in the UK, following the death of a woman in a disused coal mine. The fire service refused to rescue her, waiting instead for the specialised police mines rescue team, with the result that she died from ‘survivable’ injuries. This case has been the subject of earlier commentary on this blog (see Legal confusion leads to unnecessary death) and is now the subject of an article appearing in the latest issue of Crisis Response – see ‘Emergency services and health and safety’ (2012) 8(1) Crisis Response 10-13.
I’ve attached a copy of the article that you can download from here.
Michael Eburn.
31 May 2012.
Australian Emergency Law 
Thank you Michael about those series of articles about OHS and Incident Controllers in the UK having to make hard decisions.
From my perspective, I think most people find the prospect of facing a court, or a coroner’s inquiry, quite terrifying, and very stressful. An officer of the Court, like a lawyer, would be familiarised, trained, educated to deal with the Court process. Both paid and volunteer, firefighting incident controllers, not used to Court process, and also the focus of the legal action, would have a totally different experience to that of a Prosecutor, or even the Defence lawyer. (Which is probably a very good reason, not to self defend in Court)
Having said that, I have to agree, that sometimes, Courts have to determine whether a person has committed an offence or not. Like you argue, we just cant let people go without thorough legal determination of their decisions or actions, even if they are firefighters, other emergency workers, police, volunteer or paid, especially when a fatality has occured or there has been serious injury. No one should be above the law. Marcus Einfeld is a good case in point. However, I would also argue, that the wealthier a person is, the more likely they are to escape justice. This isnt just a form of Marxist envy, I do think, that wealthier people, can afford better legal defence teams. Personally, if I had to face the Court on a serious charge, and had no other form of legal backing like a union, it would be better for me to quit my job, go back onto Centrelink welfare and get legal aid, because I could not afford to pay for legal defence, from average wages. (This is my understanding of the legal aid applicant income criteria)
You are right to expect some flexibility, with regard to risk assessments, especially with regard to the Incident Controllers at the mine accident in Scotland, who did not contact mine rescue, or cave rescue, and had to wait for police rescue. I would suggest though, that a lack of flexibility in thinking, is not just an individual’s fault, but the way in which our risk adverse culture of tight regulation/legislation, risk assessment and the presence of a litigous community plays upon the minds of those that make decisions, like the incident controllers. They did not see the wood, but for all the trees.
There also seems to be a lack of planning/preparation, if the Incident controller could not for legal or policy reasons, request mine or cave rescue.
From my perspective. A lot of effort goes into training people to be aware of OHS risks and hazards, and quite rightly, this has improved safety outcomes. Also a lot effort goes into making people aware of the law, as well as the very severe punishments if they breach the law. This I argue produces a rigidity in thinking. Not much training goes into overcoming the rigidity, to play by the rules but also to solve problems effeciently, effectively and safely.
In particular, I could name a few OHS regulations/”best practices” that are far too onerous and rigid. The law imposes tighter and tighter boundary squares of what we can do, and what we cant do, an Incident controller, will from time however need to think outside the square. Then there is the issue of the cost of compliance.
It doesn’t suprise me that Firefighters, see themselves as soldiers, as you mentioned. This does not surprise me, the emergency services, volunteer and paid, have many former military service men and women, contributing. This is a certain type of mindset, that wants to get the job done, no matter what. In general terms, they are personal risk takers. While I could not sacrifice myself protecting property, I can understand how an emergency worker or soldier, (or any other human for that matter) would risk themselves for the lives of other people.
There has to be a balance between the extremes of overly prescriptive legislation/regulation and cowboyism. Risks sometimes have to be taken, and to have all the information in front of you, in a timely manner, is a luxury, not a reality.
Ingenuity, resourcefulness, responsiveness, calls people to sometimes think beyond cultural boundaries such as law. Law is very important and to be respected, but it does have a tendency to calcify the imagination with fear.
Stuart Mawbey
Thank you Stuart for your comments. I agree that courts are a terrible place to be, my personal motto is ‘never sue or be sued’. As a former litigator I thought the way we treated people in court was reprehensible and I understand why no-one wants to be a witness. Having said that, I also remember telling a client (in fact lots of them) that ‘the truth will not shine down like a vision from God for the judge’s benefit’, a court can only do its job if people do give evidence, otherwise it’s ‘rubbish in, rubbish out’.
Many people like firefighters would have a totally different experience to a lawyer, in fact everyone one the other side of the bar table has a different experience. In fact one of my colleagues here at the ANU (if I understand her research properly) was looking at the impact of disciplinary proceedings on lawyers themselves. There is a whole branch of research on ‘therapeutic jurisprudence’ which (again if I understand it correctly) is looking at the issue of whether or not we can have a judicial system that achieves its objectives without actually damaging the participants. These are however bigger issues, beyond the scope of the fire agencies.
So given the system we have, traumatic, slow, inefficient as it is, people actually do have to go through the process; it is in fact the price of liberty. Without it, as I said, you have a system where guilt or innocence is determined by the police, either on the basis of ‘who’s a mate’ or ‘who don’t I like’. If the police decide who to lock up, and who to let go, then the families of people killed by gross negligence may get no justice (if for example, the police applied the ‘They were firefighters, my mates, doing their best’ rule) and neither would people who are accused but are really innocent, such as the UK firefighters.
It is true that the wealthier you are the better off you are; not necessarily because you can employ better lawyers but you can employ better witnesses. The balance in the criminal justice system (despite what the shock jocks say) isn’t really weighted in the accused’s favour (remembering they are the accused, not ‘criminals’) because the Crown can bring to bear all the resources of the State. The Crown employs professional investigators (the police) and all the forensic science that they can. An accused person can’t usually afford nor has the authority to interview witnesses, execute search warrants, conduct scientific tests etc. If you have the resources then you can, just look at the OJ Simpson trial.
Legal aid defence lawyers are excellent and committed but they too (as of course are the Crown) are resource constrained. I remember appearing in one local court where I was the legal aid lawyer representing about 100 people in a list of 140! But of course, they were minor matters. Anything that goes before a judge and jury is not managed in that way.
I agree that we are becoming too rigid. I think printing SOPs that don’t allow flexibility is a problem. What we need are directions to ICs to the effect that ‘You need to consider a), b) and c) when making your decision’. If the IC can show that they did in fact consider those issues when making the decision then that would be a reasonable decision, even if the outcome is bad. The courts are actually quite sympathetic to that reasoning, that is in fact what a ‘reasonable’ decision is, that is a decision ‘with reasons’. Where an SOP does not allow flexibility (eg you will not use the safe working at heights gear for rescue, you will call the police mines rescue unit) then there is no room to move. It’s not obvious why they get written in that form; without being able to prove it here it is suggested it is often because of a misunderstanding of the law and more importantly, as you say a risk averse culture where the risk to be avoided is going to court, even if in court the agencies and individuals actions can be defended.
Ridiculous law suits are often reported so people think they will be condemned and ‘sued’ for everything. Litigation isn’t nearly as common as people think, further the press may report when an action starts, but rarely reports the outcome, and defendants win more often than you might think. But clearly it’s not winning or losing that’s the issue, it’s the process and that is indeed a tragedy.
In the English case where the women fell down the mine, the lack of planning for that eventuality was a matter of significant criticism by the Sherriff. I didn’t discuss that in detail as I was focussing on the individual but it was certainly an issue. The Fire Service thought that this type of rescue was not in their area of responsibility, in the same way that fire fighting is not a police job, and road rescue is not the job of a maritime rescue service, they were not being simply pedantic about it, that was their understanding of the arrangements in place. The Sherriff disagreed with their interpretation of the Act but that of course had nothing to do with the IC. He was taught it was not their task. A further review found that the IC, given their instructions, believed the police were better trained and equipped to do the job, it turned out they weren’t but again that’s a larger, organisational and all of government failing rather than a reflection on the IC.
I agree too that risks sometimes need to be taken. What we need to understand is ‘residual risk’. If you assess a situation, decide that there is a small risk to the rescuer to be accepted for a very large benefit to the rescued, then the mere fact that the small risk occurs does not mean that the risk assessment was wrong. Further modern health and safety law doesn’t require risks to be reduced to zero. What needs to be weighed up is the risk v benefit and have you done all you can do to get the risk as low as practically possible. In fact the firefighters at the mine did not do that and that failure was the subject of the biggest criticism by the Sheriff. They did not actually do a ‘risk assessment’ and actually think ‘what is the risk to her and to us, and what is the benefit’. I agree too, however, that they were constrained by the too rigid SOPs that they had. Once the service had directed that the safe work at heights equipment was not to be used for rescue they had in fact done a risk assessment and determined the answer. The IC had to implement the organisations edict so I think they really had no-where to go.
Thanks again for your comments.
Thanks Michael it is pleasant and refreshing to get a well educated perspective on the law. Nothing would make me crankier than having to be “forced”to listen NSW Shock Jocks, ranting on about a particular law case, presenting only one side of the story, and in an inflammatory manner – all without the benefit of even a tiny bit of legal education. Fortunately I live in SA now and these Radio voices are mostly silenced.
I could rant for days at 100wpm, about what I dislike about NSW radio shock jocks. One of which criticized work done by the SES in the Sydney Hail storms, from the comfort of his armchair.
They don’t consider, for example, what a Judge or Magistrate has to consider when sentencing, like mitigating circumstances or a person’s background. And to think that a defending lawyer, is morally reprehensible because of a defendant’s alleged crime is heinous, is just one-eyed, one sided, biased and basically ignorant. Plenty of these Shock Jocks have used lawyers as court defence, and the general public, like me, would run to a lawyer first if they were ever accused by police of something terrible.
I understand, that the law is wider than just the application of it to Emergency Services and firefighters. I can also understand the motives of your colleague in her pursuit of research to find a less traumatic way of conducting legal inquiries. However, I think it just a reality of life, that revisiting traumatic events, in what ever way it is conducted, is always going to be traumatic no matter what. It brings back memories that are by their very nature, upsetting.
A way of coping is to remember, that all members of the court, including the Judge, and especially the prosecutor, if you are defending, are human. Yes, and I guess like computers, court cases and judges and juries are similar, garbage in = garbage out.