This question comes from a volunteer fire fighter.  I won’t mention the jurisdiction as it doesn’t affect the answer.   My correspondent is with:

… a small rural fire brigade located approximately 15 minutes from the nearest town, and a lot of the time our pagers are not activated for emergency calls in our area and the next brigade is 15-20 minutes away. Our district has guidelines set out for certain calls for example a structure fire in our village would be cause for the activation of us and another brigade (local Brigade plus back up) but the local Brigade is often overlooked. Would this have any legal implications if someone was injured or killed because the nearest unit wasn’t activated? Who would be held accountable? The duty officer? The officer in charge of the other unit responding for not ensuring the local brigade was notified?

My question comes because we had a fire call 3 minutes from our station, we didn’t know about it until a few days later when local farmer asked us why the local brigade didn’t show up and why they had to wait 20 minutes instead of 8 minutes.

In many recent posts I’ve discussed the decision in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223).   That case said that where a person comes to court and asks for an order saying that whatever a government department is doing, nor not doing, the court won’t intervene unless the decision ‘‘… is so unreasonable that no reasonable authority could ever have come to it…”.  So in this context, the fire service has to make decisions about who gets called and when.  One would assume that they will call the ‘fastest closest most appropriate resource’ (to borrow a phrase from an earlier correspondent – Responding ‘the closest fastest most appropriate resource’ in South Australia (June 6, 2016)) but there may be reasons for not doing that.  Provided those reasons are not ‘so unreasonable that no reasonable authority could ever have come to…’ the same decision then the service will still being complying with its obligations.

So the critical issue is why is this particular brigade not activated?  Is it that the pagers are in a dead spot so the calls aren’t received?  Are there too few members or they don’t have appropriate training and qualifications?  If the answer to those questions or ones like it are ‘yes’ then that may be OK.  Or are they not activated because a more senior officer has decided that he or she doesn’t like the captain? Or thinks the brigade is made of trouble makers? Or somehow their details have just not been entered into some CAD system so the ComCen don’t know to call them?    Those decisions could not be ‘Wednesbury’ reasonable or worse, they are no decision at all.   A person who lived in the community or otherwise had sufficient interest in the matter could for example, seek a review of a decision (if there was such a decision) to not activate the brigade.

The ‘Wednesbury’ test is a test of administrative law but it has also been included into torts law so today, if someone want to sue a government agency for damages based on how they have attempted to do what the statute (Act) says they are to do, they also have to prove ‘unreasonableness’ (See for example Civil Liability Act 2002 (NSW) s 43; Wrongs Act 1958 (Vic) s 84).   That means if someone has suffered a loss because of the delay in sending the further brigade, and not dispatching the local brigade, and the decision not to activate the local brigade was ‘so unreasonable that no reasonable authority could ever have come to…’ the same decision then that would be one step in allowing that person to establish a claim in damages.

They would still need to prove that the brigade owed a duty of care which is not easy – see Liability for fire – a review of earlier posts (January 8, 2016).  But a judge would, I suggest, be attracted to find a way to find a duty if he or she thinks the actions of the service cannot be justified.  For example, in Kent v Griffiths [2001] QB 36, an English court had to decide whether London Ambulance owed a duty of care to a person who had rung 999.  The ambulance service wanted to rely on the English cases that said that a fire brigade would not owe a duty in those circumstances (Capital and Counties v Hampshire Council [1997] QB 2004).  A critical issue was whether the ambulance service should be equated with a ‘health service’ or an ‘emergency service’.   Regardless of the merits of the arguments, I have no doubt that the judge found it easier to find in favour of the patient, and against the ambulance service, when he found (2001] QB 36, [5]):

… that there had been contemporary falsification of the records by the member of the ambulance crew. He [the judge] considered that he [the paramedic] had not been given any satisfactory explanation for the ambulance taking 34 minutes to travel 6.5 miles from its base to the claimant’s home. The judge was satisfied that the crew member had “withheld the true reason, whatever it might have been, why it took so long for the ambulance to reach the claimant’s house”. The crew member “knew full well just how critical was going to be the record which he made” of the time of arrival. In the absence of any reasonable excuse for the delay, the judge was “driven to conclude that the delay was culpable”.

The relevance of that is that the bulk of the common law says that a fire brigade does not owe a duty of care to those that call for their assistance, but a judge may well find a way to distinguish that if the judge thinks, in an example like I’m given, that the fire service was delayed for improper reasons (“we don’t call that brigade because I don’t like them”) or ‘culpable’ reasons (“We don’t call that brigade because we forgot they exist”).

Who would be held accountable? The duty officer? The officer in charge of the other unit responding for not ensuring the local brigade was notified?

Everyone is accountable for their own decisions.  Accountable means that a person might be held to account –ie to explain why they did what they did. The duty officer would be accountable if the reason the local brigade was not called was because he or she elected not to call them.  They may have a perfectly good reason; they may not.   As for the ‘officer in charge of the other unit responding for not ensuring the local brigade was notified’ I find it hard to believe that would be an issue.  I assume that the officer in charge of a responding brigade has enough on his or her plate without being expected to question ComCen as to whether or not they have activated another brigade – but that’s really a matter for those in the relevant service to consider.  Is it ‘normal’ for a responding captain to ask ComCen have they activated a closer brigade?  If it is then the responding captain would also be accountable for his or her decisions or actions – that is he or she might be asked to explain what was done, or not done, and why.

If by accountable you mean liable to pay damages, the answer is it will be the relevant state or local government authority that operates the service (depending on the jurisdiction).   If you mean ‘ultimately responsible for the decision’ then it is the relevant Chief Officer/Commissioner.