I have been asked:

What happens in the area of Emergency Management where the Incident Controller is a paid staff member, however is not qualified in Emergency Management (and has actually been deemed NYC on a number of occasions) and makes a decision where members of a community are adversely affected through their decisions, and add into the mix someone dies as a result of their actions. What is the legal position this situation?

That’s actually a far too complex question to answer simply, it depends on the multitude of possible fact situations, but there may be some useful comments I can make.

First if the IC is paid, then any liability for any negligence falls to their employer, not them.  The employer will be vicariously liable for the IC’s negligence and also liable for its own negligence (if any) in appointing the person to that position.

The fact of ‘licensing’ or being found competent or NYC (Not Yet Competent) is probably overstated.  Having a license doesn’t mean your decision in a given situation was reasonable; not having a license doesn’t meant it wasn’t.  To put that in context most readers of this blog will have a driver’s licence, but I’m sure we’ve all made mistakes that, if they had led to an accident or injury, would have seen us liable in negligence; the fact that we have a licence doesn’t mean we’ll never make poor decisions.  Equally an unlicensed driver may be driving illegally, but quite competently.  If they are involved in an accident their criminal offence may be detected but it will be irrelevant to the question of whether or not the accident was their fault; they fact that they don’t have a licence doesn’t mean they weren’t driving perfectly competently and reasonably at the time.

In our scenario the fact that the IC “is not qualified in Emergency Management (and has actually been deemed NYC on a number of occasions)” does not prove that the decision they made at the time was not a reasonable decision based on the circumstances and the information they have to hand.

The fact that community members are adversely affected does not establish liability. The Emergency Services are given broad powers that they may use that may adversely affect the rights of individuals, whether that’s to require evacuation, take water or destroy property.  Even causing the death of some may be reasonable eg take the example of HMAS Westralia that caught fire off the coast in 1998.  It’s reported that the captain required bulkhead doors to be shut to contain the fire knowing that committed the sailors on the wrong side of the door to death, but saved the ship (discussed in A (Children) [2000] EWCA Civ 254).   A fire brigade IC may have to allocate resources to one area knowing that people are then left unprotected and may or even will die but they are decisions that have to be made.

Even if we assume the IC makes a decision that is sub-standard, a government agency will only be liable if they owe a duty of care to protect individuals, a proposition that is not supported by case law (and see here my earlier posts on Warragamba Winery v NSW and West v NSW).  Even where there is a duty they are generally protected if their decisions were made in good faith and where the decision was not so unreasonable that no agency would think they were trying to perform their duties under the Act.  That may raise questions as to why this person was appointed the IC and whether that was a decision made ‘in good faith’ or so totally unreasonable that no agency would have done it, but assuming those thresholds aren’t meant, the legislative protection will apply; and there may be reasons why that person is appointed.

That can’t give an answer but hopefully points to some of the critical issues that would be raised by this scenario.

Michael Eburn

1 April 2013