Today’s question comes from a paramedic. The state doesn’t matter as the answer will be the same across Australia.
Recently my Ambulance service issued a Work Instruction regarding “Commencement of Shift”. The Instruction includes the (very reasonable) direction that all paramedics are to complete a “Mandatory” pre-shift check of equipment, communications devices and the vehicle itself.
The Instruction then states that the crew may be tasked to a job even if the “mandatory” check has not been completed.
In the event of a serious incident occurring (to either patient or staff) following a crew being dispatched after explicitly being instructed to not complete a pre-shift check, what grounds do you think the workers would have to defend themselves?
Let me draw you a hypothetical scenario.
Upon arrival at work, a paramedic receives a phone call from a dispatcher. They are instructed to immediately get into an ambulance and drive to an urgent job. The paramedic protests that the mandatory pre-shift vehicle check has not been completed and that they are unprepared to commence work. The dispatcher invokes the instruction then states that the crew may be tasked to a job even if the “mandatory” check has not been completed. The paramedic is fearful of the repercussions of acting against policy, so they get in the car and go.
Part of the mandatory pre-shift check involves the paramedic letting the dispatch team know which portable radio they are carrying. The portable radio has a duress button which can be pressed if the paramedic should require urgent police assistance.
At the job, the paramedic is confronted with a violent and intoxicated patient. The situation escalates, and the paramedic is assaulted. The paramedic has activated the duress button, but the dispatcher does not know who is carrying that particular radio or where the radio is located, so they are unable to send police to the scene. The paramedic receives significant injuries and the patient flees the scene.
In the subsequent police investigation, the paramedic makes a claim of negligence against the dispatcher, alleging breaches of the WHS Act and Regulations. The dispatcher defends their actions as being in line with the policy of the employer and blames the paramedic for not leaving the scene earlier. The paramedic also makes a report of a notifiable incident to SafeWork.
In this situation, do you think a claim of negligence against the dispatcher would be successful? Would this be a criminal or a civil matter? And would the safety regulator investigate what is already a police matter?
Separating legal issues
We lawyers like to put things into pigeon holes. There are different legal boxes and the issues are different in each. Negligence is a common law (ie comes from judge made law). Work Health and Safety law is all based on statute and is enforced by criminal law. Each cause of action has its own elements and legal issues.
In an action for negligence a plaintiff (the person doing the suing) has to prove that the defendant owed the plaintiff a duty of care, failed to act reasonably to meet that duty and that, in turn, caused the plaintiff’s damage. It may be relevant to plead a breach of the Work Health and Safety Act but a civil court hearing an action in negligence cannot determine whether or not someone has committed a criminal offence. The statement ‘the paramedic makes a claim of negligence against the dispatcher, alleging breaches of the WHS Act and Regulations’ suggests some confusion and we’ll deal with the issues separately ie 1) an allegation of negligence and 2) an allegation of breach of the WHS legislation, but they are not the same issue.
Police do not investigate negligence, they investigate crime. If, in a ‘subsequent police investigation, the paramedic makes a claim of negligence’ the police would suggest that is not their concern (unless the negligence is so extreme as to amount to gross criminal negligence). Again, the statement ‘in the subsequent police investigation, the paramedic makes a claim of negligence’ again suggests a confusion of the legal rubric. The police are looking for evidence of a crime, not negligence.
Claim of negligence against the dispatcher
The first question I’m asked is ‘In this situation, do you think a claim of negligence against the dispatcher would be successful?’ My answer is there is no chance, whatsoever, that a claim against the dispatcher would succeed.
The dispatcher is, like the paramedic, an employee of the ambulance service or some other agency (eg the Emergency Services Telecommunications Authority in Victoria). As has been noted on this blog before, the doctrine of vicarious liability says that an employer is liable for any negligence of an employee (see Vicarious liability for the actions of fire wardens (March 5, 2016)). If there is any negligence then it will be the dispatcher’s employer, not the dispatcher that will be liable.
But where is the negligence? The ambulance service says that the crew can be despatched before the check is complete. What’s the alternative? First the crew that’s coming off duty, could be despatched on overtime but that too carries risks for that crew who may have had a busy shift. Alternatively, there is a 10-minute period at the start of each shift when the ambulance service simply can’t respond to a triple zero call.
Some things do require shift checks – eg making sure that all the scheduled drugs are accounted for and the ambulance is stocked. Other things may not require a check every shift but asking crews to do that ensures that faults are located as soon as possible and also builds in a redundancy. For example, let’s assume that it’s part of the list to check the oil (I don’t know if it is, but let’s assume it is). It probably doesn’t matter if the oil isn’t checked every day. Perhaps it could be checked once a week. But if it was listed as a weekly check and it was missed it will be another week before it is next checked. If it’s on the shift check list and it’s missed, then it will be checked next shift – building in a redundancy into the system.
In determining whether there has been negligence (assuming there is a duty of care) a court considers how a reasonable defendant may respond to the risk. In doing that the court considers:
… the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities (Wyong Shire v Shirt (1980) 146 CLR 40, 48).
In determining the policy response, the ambulance service has to consider risks to crews coming off shift, crews starting their shift and the patients who need an emergency service. None automatically trumps the other, all have to be considered. The risk to the patient of saying ‘we’ll be there in 10 minutes’ seems much greater than the risk to the crew from any potential risk. Even the risk of the hypothetical scenario suggested by my correspondent is much lower (ie it’s not likely to happen and remember the defendant has to make decisions not knowing what’s going to happen so the defendant has to ask how likely is that something like the situation described will occur) than the risk to a person who calls triple zero but does not receive a timely response.
Then there is the question of did any breach actually cause any damage. It’s impossible to say that the failure to complete the check list is the cause of the damage. In the example given it’s the conduct of the patient that causes the paramedics injury. The High Court has been reluctant to impose liability in negligence on person A for the criminal conduct of B (Modbury Triangle Shopping Centre Pty Ltd v Anzil  HCA 61). Even if the patient is ‘not guilty’ of an offence it is still the patient’s conduct, not the failure to complete a check list, that caused the injury.
There could be no success as the requirement to respond if called upon, even if the check list has not been completed, seems axiomatically reasonable.
But if we assume that is not the case, the dispatcher is not negligent. He or she is as bound by the policy as the paramedic. If the paramedic is ‘is fearful of the repercussions of acting against policy, so they get in the car and go’ one would or could infer that the dispatcher is also ‘fearful of the repercussions of acting against policy’. If there is negligence by the dispatcher, then his or her decision is the same as the paramedic so there would be negligence there too (but there isn’t).
So, an action against the dispatcher won’t succeed:
- Because it is the employer not the individual that would be liable for any negligence (if any);
- It is difficult to see how the policy is anything other than reasonable.
- The dispatcher is as bound by the policy as the paramedic, if there is negligence (and I can’t see how there is) then it must be the service as the owner of the policy that is negligent.
Work Health and Safety
The ambulance service is the primary duty holder. I haven’t identified a jurisdiction but for this discussion I’ll assume the model 2011 Act applies (as it does in each jurisdiction other than WA and Victoria). Under the Work Health and Safety Act 2011 s 19, the person conducting a business or undertaking has to ensure a safe workplace. Paramedics could be made safe from violent patients if the employer refused to send them to any job, but that would not be an effective or ‘reasonable’ response.
In determining what is reasonably practicable a court or person conducting a business or undertaking has to consider (s 18):
(a) the likelihood of the hazard or the risk concerned occurring, and
(b) the degree of harm that might result from the hazard or the risk, and
(c) what the person concerned knows, or ought reasonably to know, about:
(i) the hazard or the risk, and
(ii) ways of eliminating or minimising the risk, and
(d) the availability and suitability of ways to eliminate or minimise the risk, and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
Again, the ambulance service has to consider the potential risk to those coming on shift who have to complete the checklist and the crew ending their shift, and patients, if the crew who are on station but who have not completed the checklist are not available for a response. Whilst I don’t know what’s on the daily list I would suggest that the risk of injury etc of not doing it, when compared to the risk of delaying a response would suggest that it is not unreasonable to allow crews to be despatched.
Would this be a criminal or a civil matter?
I can’t see how the ambulance service or the dispatcher has committed any criminal offence.
And would the safety regulator investigate what is already a police matter?
Again it’s important to remember different legal boxes have their own rules, elements and processes. The police would be investigating general criminal matters, given the scenario there focus is likely to be on whether there is evidence to support a prosecution of the patient.
The industrial/safety issue is another reason. There is nothing to stop the work safety regulator conducting an investigation into whether there have been breaches of WHS law at the same time, and independently of police.
I would suggest, however, in the scenario given, neither the police nor the work safety regulator would be concerned about the checklist.
I was asked
In this situation, do you think a claim of negligence against the dispatcher would be successful?
No, I think a claim of negligence against the dispatcher would stand no chance of success.
Would this be a criminal or a civil matter?
The action of the patient would be a criminal matter. An allegation of negligence is a civil matter, but I can’t see any negligence. An action by the safety regulator under WHS legislation would be criminal in nature but again I can’t see that anyone would think there has been a criminal offence here.
And would the safety regulator investigate what is already a police matter?
Safety investigators run concurrent investigations all the time.