A correspondent has drawn my attention to a story appearing in the Brisbane Courier Mail headed ‘Coast Guard volunteer sues Queensland for $750,000’. The Courier Mail article is behind a pay wall but you can find the story in other news outlets – see:
The headline may be correct but is phrased in pejorative terms. I can imagine some would be outraged by the claim that a volunteer is ‘suing’ and for that sum of money but the headline would be equally accurate if it said ‘Volunteer injured during rescue seeks compensation for his losses’; and most people would probably think that a volunteer who is injured in the course of his or her duties should be compensated for their losses as an employee would be. In New South Wales, for example, the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) extends the workers compensation scheme to emergency service volunteers even though they are not employees.
Workers compensation is ‘no fault’ that is an injured worker does not have to prove negligence, merely that their injury occurred as a result of their work. That does not meant they don’t sometimes have to ‘sue’. Courts are a dispute resolution forum, so where a person claims compensation the other side may deny that claim. The defendant or respondent may argue that the accident or injury does not fall within the scheme, that the injuries are not as bad as the claimant alleges, that the treatment claimed is not necessary or the like. Where the parties can’t agree then someone has to resolve that issue and across the countries there are various tribunals and ultimately courts that do that. Where a claimant ‘sues’ it may not mean that they are being greedy and seeking something extra (though it is often presented that way), they are instead asking a court do what courts are there to do – that is determine the facts; apply the law to those facts and making a binding order that adjusts each parties rights and obligations.
Historically rights to compensation depended on the common law of negligence. In some jurisdictions that right has been replaced entirely by statutory schemes, the most comprehensive example of that is in New Zealand where all accident compensation is governed by statute and there is no longer a right to sue in negligence (Accident Compensation Act 2001 (NZ)). In most Australian states one can still bring a ‘common law’ action if various thresholds regarding the seriousness of the injury are met.
When bringing this story to my attention my correspondent said ‘It might be worth following this one to see what tortious duty is alleged to have been breached, and the outcome in due course. Interesting that the State has been joined.’ Indeed it will be worth following it and considering who the defendants are.
The website for the Australian Volunteer Coast Guard says ‘The Australian Volunteer Coast Guard is an organisation composed entirely of volunteers. Formed in 1961, its aim is to promote safety in the operation of small craft’. It does not say under what legislation, and therefore what State, the Coast Guard is incorporated or whether there is a separate incorporated entity in each state and territory.
I’ve previously discussed compensation for Queensland SES volunteers – Workers compensation for Queensland SES volunteers (August 23, 2017). As noted there the, Commissioner of QFES is required to enter into a contract with WorkCover Queensland to provide workers compensation for SES volunteers (Fire and Emergency Services Act 1990 (Qld) s 154C). Because the Australian Volunteer Coast Guard is not established by an Act of Parliament there is no similar obligation upon the Coast Guard. The Workers’ Compensation and Rehabilitation Act 2003 (Qld) says ‘WorkCover may enter into a contract of insurance for this subdivision with a church, non-profit charitable organisation or benevolent institution (“institution”)’ (s 18) or a ‘non-profit organisation’ (s 19). The Coast Guard might be considered a ‘benevolent institution’ and/or a ‘non-profit organisation’ so they may have insurance with WorkCover or they may have their own insurance to protect volunteers. The Workers’ Compensation and Rehabilitation Act 2003 (Qld) retains rights for workers to seek common law damages in particular cases.
If the claimant in this case is seeking common law damages from either the Coast Guard, or Queensland (presumably on the basis of alleged negligence by police) then as my correspondent has noted, he or she will have to show that there was some common law negligence by one or both agencies. What is alleged is not known at this stage.
As noted by my correspondent, if this matter proceeds to trial it will be interesting to see what is alleged and how the court resolves the issues. It should be remembered however that most cases settle and if it does, we may never know the details of the legal cause of action.
The Legislation can still be selectively applied if the organisation ‘wants to’ …..
I was struck by a vehicle ( driver got Neg. Driving charge ), whilst wearing NSWRFS overalls at the scene of a situation that I believed needed immediate action.
I commenced ‘warning oncoming traffic’, that a multiple MVA was ahead. I took all reasonable safety precautions, however an unlicensed international driver hit me whilst I was standing within the ’emergency stopping lane’.
NSWRFS disowned me, and I was pressured to leave.
No compensation was paid be either NSWRFS or the drivers’ insurers.
I was lucky enough to fully recover from four fractured ribs, a bilateral fracture to the pelvis, and a crack in my L5S1 spinal disc.
Under the (? current law ), an injured person requires a min. of 15% ongoing disability, in order to be successful in even a basic claim for an injury.
( I believe we have Bob Carr to thank for this …… )
I should also add, that I wasn’t an official responder …. I witnessed the first of seven cars sliding off the road in heavy rain. The road was partially flooded, and the scene was at the base of a hill, where driving often speed at up to 120km/h.
I could see ‘clear and present danger’ ….. and I stopped to help minimise any further property damage and perhaps save a life.