The Malone review into the Queensland Rural Fire Service has made a number of recommendations including recommendation 65:
Recommendation 65: That a volunteer shall not be liable for any act or omission made in good faith provided it is not proven to be reckless, negligent or malicious. This protection is to be afforded in both Criminal and Common law.
The report goes on to say:
Volunteers also expressed uncertainty over whether they were protected from litigation should any act they perform while conducting their volunteer duties causes loss of life or property.
The Review Team is concerned that this uncertainty is preventing some potential volunteers from joining Brigades.
Advice from the Department of Community Safety is “In terms of civil liability, the Fire and Rescue Service Act 1990 (Fire Act) and the Civil Liability Act 2003 (CL Act) already provide significant protection from liability for the rural fire brigade members.
In terms of criminal liability, when a rural fire brigade member is acting under the direction of the first officer (who is given the powers of an authorised fire officer), that brigade member is exercising powers under the Act. As long as those powers are properly exercised, the brigade member cannot be criminally liable for his or her actions (as the actions have been authorised at law).”
However volunteers recounted cases to the Review Team where Brigade members have had action brought against them for acts which they undertook in good faith to protect life and property.
The Review Team believes legislation should be reviewed to ensure there are no loopholes which could lead to volunteers who have acted in good faith to protect lives and property and whose actions have been proven as not having been reckless, negligent or malicious being subject to legal action from affected parties.
If required legislation similar to that proposed in the Civil Liability (Good Samaritan) Amendment Bill 2007 (Qld) should be considered.
With respect to recommendation 65 my initial response is that the recommendation is both pointless and ill-informed. Let me explain why.
It is pointless because it says “That a volunteer shall not be liable for any act or omission made in good faith provided it is not proven to be reckless, negligent or malicious”.
Volunteers are not liable for acts done if they are not reckless, negligent or malicious. If you think of the tort of negligence, it stands to reason that to establish liability the plaintiff has to prove that the defendant was negligent. Reckless and malicious are the fault elements for various crimes and again there is no liability for them unless they are proven. An Act that implemented the recommendation would do nothing to change the current law.
Even if you had a section such as that recommended would not stop anything. If the law says there is no liability unless it is proven that that act was ‘reckless, negligent or malicious’ then the fire fighter may think they can’t be the subject of an action, but of course there could be an action to test whether or not the act was indeed ‘reckless, negligent or malicious’.
The fire fighters and the report should have been guided by the advice from the Department of Community Safety. The Fire and Rescue Service Act 1990 (Qld) s 129 already says ‘No matter or thing done or omitted to be done by any person pursuant to this Act or bona fide and without negligence for the purposes of this Act subjects that person to any liability’. It is stronger than the similar provision in most jurisdictions as it imposes the burden of proving that the section does not apply on the plaintiff, rather than putting a burden on the defendant to show it does apply.
The section also provides that there is no criminal liability for the use of force short of force that does, or is likely to cause death or grievous bodily harm and allows a court to dismiss an action at an early stage if it appears the section applies.
The Civil Liability Act 2003 (Qld) s 39 also provides that “A volunteer does not incur any personal civil liability in relation to any act or omission done or made by the volunteer in good faith when doing community work” and community work would include work for the Queensland RFS.
In most jurisdictions volunteer protection does not extend to driving as vehicles are covered by third party insurance and people injured in a collision with a fire truck should not be denied compensation under the compulsory third party scheme just because it was a fire fighter. Equally fire fighters should not be exempt from the traffic laws to the extent that they can, with immunity, drive in a manner dangerous. No matter what the emergency they are going to it does not justify putting others at unnecessary risk.
It follows that the law in Queensland, both common law and statute law does provide that QFRS volunteers are not liable “for any act or omission made in good faith provided it is not proven to be reckless, negligent or malicious”. If the volunteers don’t know that it is because they don’t know or understand what the law is. Passing a new Act that says what the current law is, won’t ensure that they understand the new provisions any better than the current provisions.
With respect to claims that volunteers “have had action brought against them for acts which they undertook in good faith to protect life and property” this is, in the absence of specific examples, simply implausible. If what they mean they have been asked to explain themselves, or even subject to internal discipline, that won’t be affected by the recommendation. Agencies will still need to investigate matters and there may will be cases where the volunteer says they were acting in good faith and another person, even if the RFS says they were not. I have never been able to find any cases where volunteers have been subject to legal action in these circumstances (with the exception of traffic matters). If anyone can point to an actual legal claim against a volunteer in these circumstances I’d certainly like to hear about it.
The report says “The Review Team believes legislation should be reviewed to ensure there are no loopholes which could lead to volunteers who have acted in good faith to protect lives and property and whose actions have been proven as not having been reckless, negligent or malicious being subject to legal action from affected parties”.
That is not the same as their formal recommendation, but it is equally unhelpful. One can be subject to actions even if there is no liability because the question of whether or not there is liability has to be tested. A volunteer may not be liable for acts done in good faith and without negligence, but a person who honestly believes that the act was not done in good faith and was negligent has to have a forum to have that allegation tested. A law that says there is no liability does not, and cannot say, there can be no legal action as there has to be some forum to test whether or not the conditions for liability have, or have not been met.
There is one provision that may help in this regard. It may be useful to provide that if, but for Fire and Rescue Service Act 1990 (Qld) s 129 any liability falls on the Fire and Rescue Service or the State of Queensland and this would ensure that a potential plaintiff would sue the state rather than the volunteer. A model for that section can be found in the Country Fire Authority Act 1958 (Vic) s 92.
The Civil Liability (Good Samaritan) Amendment Bill 2007 says:
‘(1) Civil liability does not attach to a person in relation to an act done or omitted in the course of rendering first aid or other aid or assistance to a person in distress if—
(a) the first aid or other aid or assistance is given in circumstances of emergency; and
(b) the act is done or omitted in good faith and without reckless disregard for the safety of the person in distress or someone else”.
That is not as strong as the Fire and Rescue Service Act 1990 (Qld) s 129 so enacting that for fire fighters would not strengthen their legal position.