In Australia, where there is unwarranted fear of being sued, we often hear that we are going the way of the US where everyone sues everyone and liability is a given.  It may be true that everyone sues everyone (see I’m Suing, You’re Suing, We’re All Suing In Utica) but it doesn’t follow that someone is also liable.  In a recent decision a US city has been found not liable when police and firefighters refused to rescue a man who had “committed suicide by wading out into the frigid waters off of Crown Beach” and further, they cleared the beach stopping anyone else going to his aid – for a review of the case by Curt Varone, an American attorney, firefighter and fellow blogger, see Alameda Not Liable for Drowning Suicide.

Curt’s website includes a link to the judgement so we can read that to see if there are lessons or parallels for Australia.   There are two findings that reflect the Australian law.  First the trial judge found that the officers did not owe a duty to come to the rescue of the deceased.    It was said “Liability may only be imposed on rescue personnel if “an officer voluntarily assumes a duty to provide a particular level of  protection, and then fails to do so, or if an officer undertakes affirmative acts that increase the risk of harm to the plaintiff.”    That is consistent with various rulings that have been discussed here including Warragamba Winery v NSW , Stuart v Kirkland-Veenstra and the English case of Capital and Counties which have held that the duty on rescuers is not to make the situation worse, not necessarily to make it better.

The Court did not accept that clearing the beach made the situation worse,

Such allegations do not establish that the officers and fire fighters did anything to change the circumstances Mr. Zack was in when they arrived (he was already .in the water with no one attempting to help him). Moreover, rescue personnel had no duty to permit civilians to remain in the area or enter the water where they might be exposed to harm or injury or require rescue themselves.

Although it does not appear to have been argued, one would have thought if there was a duty it was in fact a duty toward the people on the beach to stop them exposing themselves to harm; if Mr Zack was already in the water, it is better that he died than he and a potential rescuer also died and Mr Zack was already at risk whereas people on the beach were not, so stopping them being exposed to risk reduced the potential for greater harm.  As noted that issue of a conflicting duty does not appear to have been argued.

Another allegation was that the city should be liable  “for its decisions not to purchase a shallow water boat. implement training and certification programs, or maintain rescue programs.”  The court held that there was a government immunity “for its alleged failure to provide a particular level of police and fire response. including purchasing a rescue boat, certifying personnel for water rescue, and failing to contact other agencies”.  In Australia we may not use the language of immunity but the principle is the same, you cannot sue governments over resource allocation decisions so decisions whether or not to purchase equipment or how to allocate a budget between competing demands is not something the courts will review (see for example Civil Liability Act 2002 (NSW) s 42).

This case then is consistent with Australian law (except perhaps the decision in West v NSW where the court thought the fire service did owe a duty of care to people affected by the Canberra fires of 2003) and one would expect a similar result here.  The police and fire fighters were not trained or equipped to conduct the required rescue so could not be negligent for refusing to expose themselves to a very clear danger, they acted to protect the majority by clearing the beach but did not have a duty to protect Mr Zack from himself and could not be liable for not responding with equipment they did not have and nor could the city be liable for the political, budget decision not to provide the equipment.

The most important lesson however is to once again combat urban myths, that is that agencies are liable for all bad outcomes.   That is not true in Australia nor is it true in the US.

Michael Eburn

13 February 2013.