A Victorian correspondent tells me that:
There’s a discussion unfolding in my confined space group regarding first responders not wearing adequate PPE for the identified hazards in an industrial setting.
As an example, if an Ambulance crew or Fire crew respond to a refinery, and the refinery has specific PPE requirements such as long sleeves, long pants, hard hats and goggles (all quite common in a refinery), but they deem it unnecessary (the Vic OHS Legislation affords exemptions to certain requirements for responders) where does the liability and the legal ramifications (if any) stop and start if they’re injured?
Likewise, in the same vain, if a crew is stopped at a gate and told they must comply with the requirements and the response is delayed which impacts on patient care, is there issues there too?
This is about the Occupational Health and Safety Act 2004 (Vic). (If only Victoria has adopted the Work Health and Safety Act 2011 it would make answering these questions so much easier; but they haven’t). Under the 2004 Act (s 21):
An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
Further, under s 23:
An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
Putting aside the question of volunteers that means the employer of the ambulance or fire crew has to take steps to ensure their health and safety. In a perfect world there’s been a risk assessment and consultation with the workers and PPE suitable for the sort of work those crews are likely to face are provided. For fire crews we see that the turn out gear includes boots, trousers and jackets, helmets, gloves, eye protection, breathing apparatus etc. No doubt ambulance crews also have gloves, hard hats, eye protection etc. When selecting PPE the services have to consider the broad range of situations that their crews will face including entering into workplaces that themselves pose a risk.
By the same token, the operate of a factory has to ensure that its staff have PPE and that others are not exposed to risk so for example, visitors are not allowed on the site without the PPE commensurate with the risk on site. There are exemptions from some requirements for emergency service employees (see Occupational Health and Safety Act 2004 (Vic) ss 42 and 50) but we need not concern ourselves with these in this answer.
What follows is that there are two duty holders. The emergency service organisation owes a duty to ensure the safety of its staff and the owner of the business where the emergency has occurred also has a duty to ensure that those coming onto the site, the emergency staff, are not put at risk by that workplace. The question really is, what is the risk?
The factory/refinery/plant may have PPE requirements that apply because of the various hazards in the work of the industry. But if there’s an emergency such that police or ambulance have been called perhaps the work place has been shut down so those risks are not present. In any event it’s hard to imagine that in most workplaces the PPE worn by responders, at least fire fighters, isn’t going to be better than that worn by the factory workers. So a security guard who says, for example, ‘the factory policy is that you can’t come here without a high-viz vest and a hard hat’ to an ambulance paramedic who is coming to treat a patient who’s collapsed in the car park is probably being over-officious. No doubt other emergency services, like the fire service, would rely on their statutory authority to force entry.
On the other hand, the security guard who says ‘this is a highly secure chemical laboratory and we’re not going to let you in because if you go in there, there is material that will kill you or you will release some microbe and cause Armageddon’ is meeting his or her duty. And the paramedics or fire fighters would be wrong to insist on being allowed in (see also Laboratory safety (April 7, 2016).
Ideally the responders need to listen to the PCBU that operates the business to understand what hazards there are and the PCBU that operates the business needs to warn the responders if there are particular hazards. The factory or plant should have its own emergency plan and if there are extraordinary hazards that should be communicated to the local fire and other emergency services, in other words the emergency services should be involved in the planning so everyone knows what is required in the response. If, on the other hand, the insistence on some PPE is simply inflexible doctrine without regard to the actual risk, given what’s actually happened, then the PCBU is not being reasonable trying to prevent the emergency services from effecting the rescue.
So ‘where does the liability and the legal ramifications (if any) stop and start?’ In simple terms it depends on who is being ‘reasonable’ or not. Everyone has their obligations – the 2011 Act says ‘If more than 1 person has a duty … each person: (a) retains responsibility for the person’s duty in relation to the matter…’ so depending on what happens the question will be did both the emergency service and the factory or plant PCBU do all they could to ensure ‘so far as is reasonably practicable’ everyone’s safety.