A member of Fire & Rescue NSW has a question concerning damage caused during a rescue. My correspondent refers to the Fire Brigades Act 1989 (NSW) s 38 then says:
I’ve been told by a more than one person within the organisation that in relation to rescue incidents we’re covered for damage to property under the fire brigades act. I understand that under section 7 of the of Fire Brigades Act we’re authorized to take measures anywhere in the State for protecting life and property regardless of the presence of a fire or hazardous materials incident.
In the last 2 weeks … Fire Station has attended two electrocutions, the first was a workmen inside the ceiling and the second was a workmen on the roof. Following the first incident a discussion was held about what we would do and options of enlarging the man hole cover to the roof space or cutting a second access hole if the causality was situated a distance away from the man hole were proposed. In such a situation where damage was caused to a property in an effort to preserve life would this be covered under section 38 of the Fire Brigades Act or some other section of legislation?
Damage done by a fire brigade is deemed to be damage caused by fire
The Fire Brigades Act 1989 (NSW) s 38 says:
(1) Any damage to property caused by the Commissioner, the officer in charge at a fire or a hazardous material incident, any member of a fire brigade (including an interstate fire brigade within the meaning of section 26) or any member of a community fire unit in the exercise in good faith of functions under this or any other Act is to be considered to be damage by fire for the purposes of any policy of insurance against fire covering the property.
(2) This section applies only in respect of damage to property caused in the exercise of a function to protect persons from injury or death or property from damage if those persons are or the property is endangered by fire or endangered by the escape or likely escape of hazardous material.
Similar provisions apply to the Rural Fire Service (Rural Fires Act 1997 (NSW) ss 28 and 72).
The existence of these provisions are easy to explain. Fire brigades have extensive power to do all sorts of damage in the course of fighting a fire (see for example Fire Brigades Act 1989 (NSW) ss 13 and 17). As far back as 1609 it was said ‘for saving of a city or town, a house shall be plucked down if the next be on fire’ (The Case of the King’s Prerogative in Saltpetre (1609) 77 ER 1294, 1295). Further firefighting causes its own damage – Fire brigades have to force entry, cut holes to access the seat of the fire and the application of water adds its own damage, so a room may be flooded and goods damaged by the fire suppression. The public good in putting out the fire, and therefore stopping it from spreading justifies these actions and it is good public policy to avoid debates about whether the damage was caused by the fire or the fire brigade. Section 38 (and its equivalent in all fire brigade legislation) says that damage done by the fire brigades in the course of dealing with a fire (and now, at least in NSW, a HAZMAT incident) is deemed to be damage done by fire. If the owner of the damaged property is insured for loss caused by fire they are also insured for loss caused by the actions of the fire brigade. If they have no insurance they wear the all the losses.
State Emergency and Rescue Management Act 1989 (NSW)
My correspondent’s question however relates to rescue. In NSW rescue management is governed by the State Emergency and Rescue Management Act 1989 (NSW). Critical provisions of that Act are:
- Rescue is defined as ‘means the safe removal of persons or domestic animals from actual or threatened danger of physical harm’ (s 3).
- NSW police are ‘responsible for co-ordinating rescue operations and for determining the priorities of action to be taken in rescue operations’ (s 50).
- For each area there is an accredited rescue unit (see State Rescue Board Summary of Accredited Land Rescue Units – As at June 2015). It is an offence to ‘operate rescue unit or rescue vehicle without accreditation’ (s 53).
- Agencies, like NSWF&R and NSW SES do not have to be accredited to perform their statutory functions (s 50(3); State Rescue Board, New South Wales State Rescue Policy (3rd Edition Version 3.5), [3.41] so the SES does not need accreditation to do flood rescue (State Rescue Board, Flood Rescue Policy (August 2009), [12]). Equally NSWF&R do not need accreditation to rescue people from danger caused by fire or a hazardous materials incident.
- Any damage done by ‘a senior police officer’ or ‘a person acting on and in accordance with a direction given by … a senior police officer …’ under s 61(1) – Power of police to take other safety measures – is deemed to be damage caused by the emergency (s 62A(1)(b) and (c)).
- When an emergency service organisation realises that a ‘rescue’ is required, they are obliged to notify police (s 51).
(As an aside, s 51 is problematic given the broad definition of ‘rescue’. Every time an ambulance crew pick someone up of the street, or an SES volunteer assists a person into a flood boat, they are removing a person from danger of physical harm but it can’t be assumed they notify police. Equally every time a fire officer assists a person from a burning building they are conducting a rescue, but in that case it’s probably the case that the police are there too. Let us put aside, however, questions on the obligations imposed by s 51 and return to the question at hand).
My assumptions
Let us assume that in the situation nominated by my correspondent, there was no risk of fire. This would of course depend on the facts, and I can imagine an electrical accident may trigger an automatic fire alarm and create a risk of fire so one could have detailed and technical decisions about whether it’s a fire call, but let us assume, for the sake of the argument that there was no risk of fire. Let me further assume, for the sake of the argument, that these situations arose when NSW Ambulance were called to the scene, realised that they couldn’t access the person and called for ‘rescue’ to assist and NSWF&R were the appropriate accredited rescue unit despatched by police to assist with the rescue.
My assumptions are summarised as – this is not a fire call, there is no threat of fire or hazmat so s 38 doesn’t apply. This is a rescue within the meaning of the State Emergency and Rescue Management Act 1989 (NSW) and Fire and Rescue NSW were the relevant accredited rescue unit.
Discussion
The State Emergency and Rescue Management Act 1989 (NSW) doesn’t specifically empower a rescue squad to do anything. There is nothing in the Act that says a rescue squad can do damage, or cut open any receptacle or do anything else to complete their rescue, but rescue squads do that sort of thing all the time – just think of using the ‘jaws of life’ to cut the roof or doors off a car. The power to do that must come from the common law of necessity and/or be implied by the Act that provides for accredited rescue units, and prima facie, rescue units must be able to do what they are accredited, and by implication, trained to do. And if rescue training involves cutting open ceilings, or cars, by implication there is a power to do that.
There can be no liability that attaches to the member of a rescue squad or the agency (s 59) but that doesn’t answer the question of whether or not the damage done by the rescue squad is deemed to be damage done by the relevant hazard that caused the emergency, and the need for rescue, in the first place.
At the scene of an emergency, a senior police officer (that is ‘a police officer of or above the rank of sergeant’ (s 60KA)) ‘may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons … from injury or death … direct … the taking possession of, and removal or destruction of any material or thing … that may be dangerous to life … or that may interfere with the response of emergency services to the emergency” (s 61(1)). Any damage done by ‘a senior police officer’ or ‘a person acting on and in accordance with a direction given by … a senior police officer … ‘ under s 61(1) is deemed to be damage done by that emergency (s 62A(1)(b) and (c)). In that context emergency means ‘fire, flood, storm, tempest, explosion or other risk, contingency or event’. This event is not fire, flood, storm, tempest or explosion but it is some ‘other risk, contingency or event’. Further, for the purposes of that Act, an emergency is (emphasis added):
… an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:
(a) endangers, or threatens to endanger, the safety or health of persons …
being an emergency which requires a significant and co-ordinated response.
This ‘event’ was an ‘accident where in each case, the safety and health of the workman was endangered and if ambulance, police and the fire brigade were in attendance, and police were coordinating rescue as required by s 50, that sounds like ‘an emergency which requires a significant and co-ordinated response.’
It’s hard to imagine that in the scene described a police sergeant would be standing there telling the firefighters where to cut. Even so, given that police are in charge of coordinating the rescue, the fact that the brigade have been called upon to do the rescue and are acting with the knowledge of police could, I think, give rise to an implied direction to take possession of and destroy the ceiling in order to effect the rescue. This is somewhat of a ‘long bow’ as there may well be at many rescues no senior police officer and the firefighters are not really thinking they are acting under the direction of police but it’s an argument to say that ultimately the damage was done by the ‘emergency’ (however described).
The terms of any insurance policy
But does that help? Only if the building owner had insurance for the relevant emergency or damage to the building. And that is, I think the crux of the matter. If the building is insured, it is probably insured for loss due to fire, earthquake, flooding and the like, and also for deliberate damage so if a vandal smashed up the ceiling, insurance would probably cover it. If a firefighter smashes up the ceiling it’s the same thing from the insurer’s point of view so I would have thought if you were insured for property damage it’s not going to matter whether the damage was done deliberately by a criminal or deliberately by a rescue squad – the insured event – damage to the building has occurred. On the other hand, there may be an issue if the insurance excludes damage done with the consent of the owner, as a rescue may be ‘with consent’. The ultimate answer will depend on the terms of the insurance.
With respect to cars, it’s not going to be an issue. If the car is insured and runs into a tree, it’s a total loss even before the rescue squad cut the roof off, but it may not be so clear if the car was in perfectly good condition before the rescue squad was called – see Mark Reddier, ‘Woman falls from balcony in Sydney, then has to be cut from car’ ABC News (Online) 8 December 2016). Even then I would expect an insurer would be unlikely to quibble but you can never know.
In either case, if the owner the building or the car had no insurance then they will wear the loss for the damage caused during the rescue.
Conclusion
My correspondent asked ‘where damage was caused to a property in an effort to preserve life – [that is effect a rescue] would this be covered under section 38 of the Fire Brigades Act or some other section of legislation?’
The answer is:
- The damage done would not be deemed to be damage done by fire because the risk to the person was not caused by ‘fire or endangered by the escape or likely escape of hazardous material’ (Fire Brigades Act 1989 (NSW) s 38).
- The damage done may be deemed to be damage done by ‘the emergency’ if the action taken was done at the direction, either express or implied, of a senior police officer (State Emergency and Rescue Management Act 1989 (NSW) ss 61(1) and 62A(1)(b) and (c)).
- In any case, whether the damage is covered by the owner’s insurance policy would depend on the terms of the policy.
Post script and mea culpa
A much shorter version of this discussion appeared on the Facebook page associated with this blog as a brief commentary on the situation described in the article ‘Woman falls from balcony in Sydney, then has to be cut from car’. In that discussion I had concluded that given the rescue was performed by the fire brigade and that they were exercising, in good faith, functions under the State Emergency and Rescue Management Act 1989 (NSW), s 38(1) would apply and the damage done to the car would be deemed to be damage done by fire.
In giving that short commentary I failed to identify s 38(2) which says ‘This section applies only in respect of damage to property … if those persons are or the property is endangered by fire or endangered by the escape or likely escape of hazardous material’. It means the conclusion I expressed there was wrong and I’ve deleted my commentary from that page.
Today’s question caused me to look at the issue in more detail, hence the conclusions above.
Australian Emergency Law 
Is there any relevance to s38 of the Fire Brigades Act where it mentions:
Any damage to property caused by […] any member of a fire brigade […] in the exercise in good faith of functions under this or any other Act is to be considered to be damage by fire for the purposes of any policy of insurance against fire covering the property.
Specifically where it states “or any other Act”, does that mean if a firefighter is exercising their functions under the SERM act it could still possibly be regarded as damage by “fire”?
Thanks.
Sean
I discuss s 38(1) and (2) in detail in this post. Why the action is not deemed to be caused by fire is because of s 38(2) which says: “This section applies only in respect of damage to property caused in the exercise of a function to protect persons from injury or death or property from damage if those persons are or the property is endangered by fire or endangered by the escape or likely escape of hazardous material.”
Of course – I missed that important bit. Thanks for the clarification.
Interestingly the NSW RFS has no such limitation under the RF Act. s22 says “22 General powers of rural fire brigade officers and others
(1) An officer of a rural fire brigade or group of rural fire brigades of a rank designated by the Commissioner may, for the purpose of controlling or suppressing a fire or protecting persons, property or the environment from an existing or imminent danger arising out of a fire, incident or other emergency:
(a) exercise any function conferred on the officer by or under this Act, or
(b) take any other action that is reasonably necessary or incidental to the effective exercise of such a function.
(2) The officer may exercise such a function or take such an action with such persons as the officer considers necessary for the purpose.
(2A) Any function that may be exercised, or action that may be taken, by an officer of a rural fire brigade or group of rural fire brigades because of this section may be exercised or taken by the Commissioner.
(3) The following provisions of this Division are intended to be particular examples of the way in which functions referred to in this section can be exercised and are not intended to limit the generality of this section.”
And s28 says:
“28 Damage to property and the environment
(1) Any damage to property that is caused by any person exercising any function conferred by or under this Division in good faith and any remedial work necessary to rectify damage to the environment is to be taken to be damage by fire within the meaning of any policy of insurance against fire covering the property so damaged.
(2) Any provision, stipulation, covenant or condition in any agreement that negates, limits or modifies or purports to negate, limit or modify the operation of this section is void and of no effect.”
which would appear to cover any damage (or the insurance liability) that might eventuate if the RFS assists NSWA in gaining access to a patient.
The Rural Fire Service don’t operate accredited rescue units but that doesn’t matter. If they do assist NSW Ambulance they would be performing one of their functions (see s 9(1)(b)) – it is a function of the RFS to ‘assist other emergency services organisations at incidents and at emergencies under the control of those organisations’. So it may be that damage done by the RFS in those circumstances would be damage done by fire. Again, that’s only relevant if the property owner has insurance against damage done by fire.
In fact the NSW does have a SRB accredited rescue unit, Mungindi Rural Fire Brigade. See https://www.emergency.nsw.gov.au/media/301/1156/_/w45cux15889h4wgkok/State+Rescue+Board+Communique+-+Meeting+122+-+8+September+2016.pdf
In addition from my experience as both a career FRNSW firefighter and RFS volunteer, assistance to NSWA in gaining ‘patient access’ is sometimes done as a non rescue ‘assist ambulance’ call with non SRB accredited stations or brigades dispatched, or with those non accredited units in conjunction with a SRB accredited unit who arrive after ‘access’ work has commenced.
We’ll there you go, I didn’t know that about the RFS and they’re not on the list I linked to from the State Rescue Board. Certainly, as I’ve noted, RFS can assist ambulance and that need not be a ‘rescue’ just a few extra hands – see again s 9(1)(b) of the RFS Act.
Hi Michael
Thanks for a prompt and detailed answer to my question
Regards
Nick
I received this further information by email:
Section 60KA of the State Emergency and Rescue Management Act 1989 (NSW) is a definition section and provides the definitions for Part 4 ‘Miscellaneous’. Issues of rescue are dealt with in Part 3 ‘State Rescue Management’. Section 50(1) says ‘The NSW Police Force is responsible for co-ordinating rescue operations and for determining the priorities of action to be taken in rescue operations’. Having a dedicated Rescue Coordinator or ‘a Sergeant rostered for each shift, part of their duties is to oversee the deployment of certified rescue units within their span of control’ is to ensure that police can perform that role. Not only is that more efficient than leaving it to each radio operator it is also more efficient than leaving it to each ‘officer in charge’ at each accident.
However, s 60KA is not a ‘requirement’, it is merely a definition so having the sergeant in the control room is not meeting any s 60KA requirement. Section 60KA is relevant to s 61. Section 61 says, in full:
In my view s 61 is directed to police officers at the scene of any emergency and allows them to take control of the scene. The senior police officer anticipated by s 61 is the officer on scene. Section 62A is the section that says damage done by a police officer, or someone acting under the officers’ direction is deemed to be damage done by the hazard for the purposes of insurance. It is my experience, and would be my expectation, that at a rescue a police officer is not going to ‘direct’ the rescue squad “I want you to take possession of that building or car and destroy the roof in order to access the patient” (s 61(1)(f)). Really what’s going to happen is that the police are going to leave it to the rescue squad, in collaboration with the ambulance service, to determine how they are going to access and remove the patient. So I don’t really think, at a rescue, anyone is having regard to s 61.
BUT my argument was that in the right circumstances something could be implied. A request for rescue is made, the Rescue Coordinator dispatches the relevant accredited rescue unit and one could imply some sort of direction to take ‘possession of, and remov[e] or destr[oy] any material or thing in the danger area or any part of the danger area that may be dangerous to life or property or that may interfere with the response of emergency services to the emergency’. As I say I think that’s a pretty tenuous argument, but the role of lawyers (at least sometimes) is to give a judge a path to the result the judge wants to deliver. In that case, going back to the original scenario, assume the building owner had insurance, the fire brigade have cut the roof open to rescue the workmen and the insurer is resisting the claim on the basis, say, that the rescue squad were on the premises at the invitation of the owner and did the damage with the owner’s consent. A judge may think this is pretty unreasonable so one might make this argument – that this was an implied direction under s 61(1) – in the hope that the judge will seize on that to compel the insurer to pay up. It’s a bit of a fiction but it’s not a completely untenable argument.
Certainly the fact that the Rescue or Call centre coordinator is a police officer of or above the rank of sergeant makes the argument easier (without that you would have to hope there was a sergeant on scene otherwise you can’t get an implied direction from a ‘senior police officer’), but I can’t imagine that anyone had that argument in mind when they determined that a sergeant was to be the relevant coordinator.
With respect to my correspondent however, I can’t imagine that argument is the ‘reason why a Sergeant of Police has the role …’ I would suggest that the reason the police nominate an officer of the rank of sergeant to the role is that is considered an appropriate rank in the management system to exercise the police responsibilities. Part 3 of the SERM Act, dealing with Rescue, doesn’t require that a police officer of a particular rank make the decisions. And s 61 is not about the police officer at the coord centre, though it could be. A constable on scene could make a call to his or her supervising sergeant, describe the situation and ask for authority to take action under s 61(1). I’m sure that’s consistent with s 61 but again, s 61 isn’t really directed at rescue. The argument that ss 50, 61 and 62A could be applied was never, I’m sure, in the mind of the legislative drafters or the police when putting their roster together.
My Opinion
I would be circumspect about associating the Part 3 State Rescue Management of the SERM Act with the Part 2 State Emergency Management. The requirements for the rank of, or above Sergeant under Sec 60KA and the executable powers under 60L and 61 refer to ’emergencies’, which may or may not include rescue from accidents.
Such ‘Accidents’ to require 60KA, 60L and 61 style authorities would need to require a significant and coordinated response for them to be an emergency. There is often much discussion around ‘Significant and Coordinated’ (and it has to be both. not significant on one hand or coordinated on the other).
It would a fairly long stretch to call a single or dual extraction an emergency. A train wreck or major bus accident you say! Well, then maybe. Even a light aircraft accident is just a smallish vehicle falling from the sky (as long as there are no other complicating factors).
For 60KA, it needs to be a senior police officer (meaning ‘a police officer of or above the rank of sergeant’) to direct or authorise another police officer to direct (eg our teaching is a senior police officer doesn’t have to be at the scene of an emergency). 60KA defines ‘a’ senior police officer (meaning a class of person) not ‘the’ senior police officer (at the scene). Two different things.
The requirement of senior police officer under the Rescue Management Part of the SERM Act differs in that it says ‘the’ senior police officer at the scene – which in fact can be any constable. If there are two or more at the scene then it is the more senior officer. While we could have a whole discussion about what constitutes rank, we can’t about a police officer’s station as a police officer and their seniority status within their organisation.
The bits about VKG’s (Police Radio) initial coordination role actually come for the State Rescue Policy not the legislation. Hence, the sergeant at VKG controlling the rescue if there are police on scene doesn’t wash. It just all falls under the banner of The NSW Police Force is responsible for co-ordinating rescue operations vide Section 50(1). – subject to the rest of that section. While you are in that section, please note it does subtly make a distinct between a rescue operation resulting from an emergency. So, there is an attempt to make a distinction between the two.
There are other areas of the SERM Act referring to exculpation from liabilities but please note that Section 62 (personal liability) specifically mentions rescue management, where Section 62A (damage covered by insurance) does not.
It would be good if things were clearer but regrettably they are not.
Danny, I do agree hence the comment in the original post that the argument ‘is somewhat of a ‘long bow’ …’ I do agree that the s 61 and the provisions regarding ‘rescue’ are not necessarily related, but equally they are not unrelated. At an emergency scene, that involves rescue, police could still choose to exercise their powers under s 61 if required to render a scene safe. As you say the authority of a senior police officer (of or above the rank of sergeant) to act under ss 60L [‘Power of police to evacuate or to take other steps concerning persons’] and 61 [‘Power of police to take other safety measures’] relates “to ’emergencies’, which may or may not include rescue from accidents.”
As for the definition of ‘emergency’ in the SERM Act and the need for a ‘significant and coordinated response’ that is indeed a problematic definition. On one hand, an ambulance responding to a cardiac arrest is a significant response (think of the money involved in training the paramedics and equipping the ambulance) and coordinated (there is a coord centre that is managing that response and the entire ambulance availability and no doubt thinking about what backup may be required etc) and in most peoples’ minds it would constitute an ‘emergency’. I think a light aircraft accident would clearly be an emergency because there will be police, ambulance and fire services responding along with the ATSB, roads authorities (if it’s on a road), WorkSafe etc. The size of the aircraft isn’t going to stop that being an emergency. The problem is that the terms ‘significant’ and ‘coordinated’ aren’t defined and on one view it covers any response by the emergency services including what is for them, business as usual. On another view it’s meant to mean more than that.
Section 50(3) says:
I don’t think that is making a distinction between a rescue where there is an emergency and one where there isn’t. An emergency ‘which is subject to the control of another agency in accordance with Part 2’ is calling up the Part on State Emergency Management which in turn brings in the State Emergency Management Plan and the concept of combat agencies. Paragraph 705 of the New South Wales State Emergency Management Plan (December 2012) says:
I would read s 50(3)(b) as saying where there is a ‘combat agency controlled’ emergency (such as a fire (NSWF&R or NSW RFS) or flood (NSW SES)) then the rescue provisions don’t apply. But where the emergency is not one of those, eg a car accident or an electrocuted workman in a roof space, then they do. I do not think this is drawing any distinction between an ‘emergency’ (as defined in s 4) and something else.
In short, I don’t agree that it would be a ‘fairly long stretch to call a single or dual extraction an emergency’ given the definition in s 4 of the State Emergency and Rescue Management Act 1989 (NSW) (though it would not be an emergency that would warrant a declaration of a ‘state of emergency’ (s 33)). I would suggest a single vehicle accident requiring rescue would fit the common perception of emergency and the definition and is exactly what it’s intended to cover. What I find harder to fit in the definition is the single response – my ambulance to a heart attack example – but once you get at least two services attending that seems to me to be both significant and ideally, coordinated.
But what’s going to turn on it? If police are on scene with ambulance or fire or anyone else then I think that’s going to be a significant response and hopefully they’re all coordinated, and I can’t imagine that a court is going to rule that some action under ss 60L or 61 was unlawful, even if the officer involved was ‘satisfied that there [were] reasonable grounds for doing so for the purpose of protecting persons or animals from injury or death or protecting property’ but because it was just a single car (or aircraft) accident, that it was not an emergency. (Let me be careful here, because in the discussion of the conviction of the RFS firefighter for negligently making a u-turn the court found that there was no emergency and did refer to this definition, but the issue there was that at the time of the accident there was no threat to lives or property, not that it wasn’t a ‘significant and coordinated’ response).
As for ss 60KA, 60L and 61. First, remember that s 60KA is merely a definition section. Second I do agree that neither ss 60L or 61A require the ‘senior police officer’ to be ‘on scene’. In an earlier comment I did write, with respect to s 61 “A constable on scene could make a call to his or her supervising sergeant, describe the situation and ask for authority to take action under s 61(1).”
With respect to ‘The Senior Police Officer present at the scene of a rescue operation …’, the NSW State Rescue Policy (3rd ed, 2015) says at paragraph [3.03]:
But the Policy is wrong. Section 50 does not say that. Section 50 says:
It doesn’t say anything about which police officer is to do that or that it has to be the ‘Senior Police Officer present at the scene …” And section 50 hasn’t been changed since 2013 so it didn’t have the words quoted in the State Rescue Policy even when the Policy was written.
Now remember this post isn’t really talking about rescue but about whether or not the provisions of s 62A [‘Certain damage to be covered by insurance’] can be brought into play. It’s my argument (albeit tenuous) that one could argue that the dispatch by VKG of the rescue service gives rise to an implied direction to the rescue squad to ‘tak[e] possession of, and remov[e] or destr[oy] of any material or thing in the danger area or any part of the danger area that may be dangerous to life or property or that may interfere with the response of emergency services to the emergency’. I think one could make that argument if there’s a sergeant on scene or, if there isn’t, because the rescue coordinator at VKG is a sergeant.
I don’t think it’s a strong argument or one that was intended by the legislatures. I also don’t think any rescue squad thinks it’s working under that direction – but if I was acting for a property owner (car or building) and their insurer was trying to avoid paying out because the damage was done by the rescue squad and not the car accident or whatever caused the injury to the workman I’d give it a run. And a judge who thought the insurers were being particularly obnoxious may find it an attractive path to allow a verdict in favour of the insured.
As I said in my earlier comment:
It is correct that
That’s why I’ve tried to construct an argument. An argument that I’d be willing to run to try and force a recalcitrant insurer to pay up if they were refusing to cover damage done by a rescue squad if it’s the type of damage that they would cover if done by someone else.
No problems. These are the sort of discussions we have amongst ourselves all the time. In a lot of ways, I personally would like to define what our intent for the current word ’emergency’ being called a disaster and have three categories (Incident, Emergency and Disaster). Just in our short discussion, it is easy to see an emergency in the popularly accepted context is different to the scale and coordination requirements for event I would take to be an emergency. But that sort of change to past thinking is not going to happen any time soon.
It is important also to keep in mind why our legislation is so broad in that an incident might become an emergency because the traditional response resources available locally do not have capacity to deal the event and thus require a whole of community response with its need for enhanced coordination.
The NSW legislation has to deal with the whole State and it abundance of resources in one area and lack of resources in others. Hence, the need to it to be somewhat ‘flexible’.
With the senior police officer at the scene of rescue, I’ll have to check but I may have mistakenly referred to either an old wording of the SERM Act. Things stick in your mind when they are drummed into you for years and then they change a word or phrase and the change doesn’t stick as it should on whether it was in this document or that.
One would have to check with each individual VKG Control Room on whether the VKG Rescue Coordinators were in fact all Sergeants of Police.
If FRNSW were activated in a GLR (General Land Rescue) capacity instead of a firefighting capacity, would that change the situation at all? I would assume FRNSW were activated in a GLR capacity in the situation detailed in this article.
Yes it does make a difference, which I’ve tried to explain in the post. Section 38(1) says that any “damage to property caused by … [NSWF&R] is to be considered to be damage by fire …” but s 38(2) says that rule “applies only in respect of damage to property caused … if those persons are or the property is endangered by fire or endangered by the escape or likely escape of hazardous material.”
If NSWF&R are responding as the accredited rescue unit – and there’s no fire or hazmat incident, then s 38(1) doesn’t apply. The point of the rest of the post was to consider whether I could make an argument to bring the result under a similar provision in the SERM Act.