In my dealing with emergency services many people report a fear of the coroner (see Eburn, M. and Dovers, S., ‘Australian wildfire litigation’ (2012) 21(5) International Journal of Wildland Fire 488-497).  The argument ‘we’ll you have to explain that to the coroner’ is the ultimate threat when person A wants person B, or the organisation, to change a policy or procedure.  No doubt appearing before a coroner and having one’s decisions reviewed does not appear in anyone’s list of ‘top 100 fun things to do’ and preparing for a hearing that may involve several days in court and many more hours of putting together documents and submissions takes up significant resources; but even where there are poor outcomes it does not follow that the service or members will be subject to criticism as this post, and the next – Coroner’s review of response by ACT Ambulance (2 March 2018) – can show.

The Inquest into the death of Daniel Howard and Inquiry into the fire at the Occidental Hotel, Cobar (16 February 2018) looked into the response to a fire in Cobar where Daniel Howard, a retained firefighter with Fire and Rescue NSW (FRNSW) died whilst fighting the fire at the 135 year old Occidental Hotel in Cobar, in country NSW.  Cobar is 300km from the ‘closest large town’ of Dubbo ([16]).

What happened?

On 17 August 2014 an accidental fire ([71]) broke out in the Occidental Hotel.  It was discovered at about 7.35am by a person driving past the hotel.  He alerted the publican who evacuated the residential guests while the person who first observed the fire attempted to fight the fire with the fire hose.  A call was made to triple zero at 7.48am.  The fire brigade, with two appliances, arrived on scene at 7.57am ([29]-[34]).

Fire fighting in Cobar is provided by FRNSW using retained (or part time) firefighters.  Retained firefighters ‘are “on call” rather than working regular shifts. They only attend the station when responding or returning from incidents, attending drills or training or when they are performing other authorised duties such as checking equipment or doing administrative work’ ([17]).  At the time there were 14 retained firefighters in Cobar ([19]).  ‘[T]there had not been a structural fire of the magnitude of this incident for over ten years’ (18]).  It follows that all the firefighters including the Deputy Captain who was acting as Incident Controller (IC) for the first time, were part time firefighter with limited experience.

During the course of firefighting operations, the IC worked with officers from NSW Ambulance, NSW SES, NSW Police and Cobar Shire to try and manage traffic and bystanders. The IC was also required to observe the conduct of firefighting operations that were taking place around the hotel.  FRNSW was supported by firefighters from the NSW Rural Fire Service.

At [63]-[64] the coroner reported that Mr Howard:

… was standing at the front of the building on the right hand side and directing his hose into the wall section which had been burnt out. Daniel was about two to three metres from the front of the building and was under the awning.

Fire Fighter Fugar states that the supports of the awning were engulfed in flames and he believed there was a risk of the awning collapsing. After about a minute or two he decided to say something, however the awning started to fall before he could. Fire Fighter Fugar yelled “Howey!” Daniel turned around and looked up at the awning as it fell. Daniel dropped the hose and started to run in the direction of Fire Fighter Fugar. Fire Fighter Fugar saw a large section of the front wall start to fall towards him and he started to run back towards Marshall Street.

The wall fell on firefighter Howard and he died as a result of the injuries he suffered ([67]).

Was an inquest mandatory?

A Senior Coroner must hold an inquiry where a person dies ‘in custody or as a result of police operations’ (Coroners Act 2009 (NSW) ss 23 and 27).  The Deputy State Coroner queried whether this death occurring during a ‘police operation’.  The police (at [6] argued that it was not a police operation.  They said:

… that the incident was a “combat agency response by the legislatively appointed agency, being Fire and Rescue, New South Wales. NSW police officers present were merely members of an assist agency at the legislative direction of the Officer in Charge (NSW Fire and Rescue)” [sic].

It is my view that this argument has to be correct and is consistent with the system established by the State Emergency and Rescue Management Act 1989 (NSW) and the NSW Emergency Management Arrangements.  The idea that the police are in charge of everything, whenever there is a police officer present is not part of the law or the arrangements.

In any event the Coroner did not decide whether she was required to hold an inquest or just should hold an inquest.  She said

Practically little turns on the issue [of whether or not this death occurring during a police operation]. The concerns raised in relation to the manner and circumstances of Daniel’s death were sufficient in themselves to call for a close examination of what occurred and to require an inquest.

The outcome of the inquiry (into the fire) and inquest (into Mr Howard’s death)

The Coroner identified a number of issues that were to be explored in the inquest and inquiry. These were:

  • The nature and adequacy of the training provided to retained fire fighters by FRNSW;
  • Whether there was adequate control of the fire scene by [the IC] … given his level of training and supervision?
  • Should [the IC] … have appointed a safety officer?
  • The adequacy of the communication between FRNSW fire fighters on the scene and elsewhere;
  • The adequacy and timeliness of the Rural Fire Service response to the fire;
  • The adequacy and timeliness of the response of the NSW Police Force to the fire and its subsequent investigation;
  • The availability and effectiveness of the Cobar Shire Council fire hydrants; and
  • The prompt identification of “next of kin” and appointment of a support person.

For the details, readers can go to the actual decision.  In summary the Coroner made no adverse comments and was full of praise for all involved in the firefighting effort.  She did make some recommendations to government and FRNSW regarding their response.

  • The nature and adequacy of the training provided to retained fire fighters by FRNSW; and

  • Whether there was adequate control of the fire scene by [the IC] … given his level of training and supervision?

With respect to the response by FRNSW including training and the actions of the IC it was acknowledged that the retained firefighters had limited training and even less experience with structural fires. ‘It became clear that a lack of knowledge about the possibility of structural collapse was evident across the board’ ([74]).  The Coroner said, at [84]:

Following an analysis of the events at the Occidental Hotel, there was clear recognition on the part of FRNSW that the organisation needed to grapple with improving the training for fire fighters in relation to structural collapse. Evidence at the inquest demonstrated that there is still a great deal of work to do in this regard. It appeared that there was still a limited understanding about how fire duration and conditions can affect structural integrity.

The IC had limited experience and this was his first time as IC as the Captain was not in Cobar on this day.  The Coroner said (at [87]-[88]):

In my view he performed the role of incident controller with great care and skill, given the difficult circumstances that confronted him and his general lack of experience. I do not intend to review in detail all of his actions and decisions. It is sufficient to record that he assumed control of the scene quickly and attended to a very wide variety of tasks, which included calling for additional assistance from a variety of sources; evacuating residents and others nearby; organising the power to be isolated and verbally ordering an electrical exclusion zone; establishing a control centre; correctly identifying a number of risks, such as that posed by the LPG cylinders; liaising with other agencies that could assist in crowd control and with road blocks and dealing with a number of operational issues, such as that posed by the fire hydrants. He remained calm in the face of a huge fire, with only limited resources under his control. Not all the fire fighters had radios and his focus was necessarily extended over a fairly large geographical area.

To his credit, [the IC] … quickly and correctly identified that the fire must be fought in a defensive manner. He did his best to ensure the safety of his men. I note that there was no criticism of him from any fire fighter, either from his own team or from the RFS who had been present on the day. I offer no criticism of him, but it appears that he could have been better supported and better trained by the organisation he worked for.

An Incident Cause Assessment Methodology (ICAM) report had recommended that FRNSW develop further training for those likely to take on an IC role (Captains, Deputy Captains and Senior Firefighters) and FRNSW reported that this had been acted on and further training was being delivered ([89]).

The Coroner did make some further recommendations. She recommended (at [123]-[125]):

That FRNSW provides a copy of these coronial findings to their Education and Training Unit and requests that consideration is given to using the facts of this tragedy as a case study in the training of RFFs in relation to both structural collapse and incident control, in accordance with the new policies which have been developed.

That FRNSW develop a mentoring program between PFFs and RFFs to support and encourage professional development of RFFs, particularly at the level of Captain and Deputy Captain.

That FRNSW review organisational capability statements every 12 months (including local critical risks) with a view to identifying gaps in essential knowledge so that appropriate evaluation and training programs can be effectively implemented.

  • Should [the IC] … have appointed a safety officer?

With respect to the appointment of a safety officer the Coroner said ([95]-[96]):

I have carefully considered the issue of whether [the IC]… should have appointed a safety officer and reviewed the expert and other evidence in this regard. In my view he was faced with a difficult situation. He did not have the resources to comfortably take one fire fighter out of active duty. In any event it appears that while he had heard of a safety officer, he had limited knowledge or training about how such a role would work in practice. He did not know exactly when a safety officer should be appointed and he did not consider doing it on 17 August 2014. In all the circumstances, I do not offer any criticism of [the IC] … in this regard. While it is clear that RFFs could benefit from further training in relation to the benefits of appointing a safety officer, it is also clear that in rural and remote areas the lack of resources may mean it is not always possible.

It is also important to note that the presence of a safety officer does not necessarily guarantee a safer environment for fire fighters. Counsel for the family conceded that even if one had been appointed on that day, given the lack of knowledge in the Cobar Brigade in relation to structural collapse, it may not have averted the tragedy which subsequently ensued.

  • The adequacy of the communication between FRNSW fire fighters on the scene and elsewhere;

The Coroner noted the difficulties of maintaining communication between the fireground and the Duty Commander who was travelling from Dubbo to Cobar.  The difficulty in maintaining phone communication in rural NSW is well known. The Coroner noted those difficulties and noted, with approval, a recommendation from the ICAM report to develop ‘proposed Intelligence Cells Situation room to provide expert advice and Incident Management Team support for retained fire fighters at significant incidents…’ ([102]).

  • The adequacy and timeliness of the Rural Fire Service response to the fire;

The Coroner said (at [104]):

The Court has carefully considered the adequacy of the response by the Rural Fire Service to the events at the Occidental Hotel. There appear to be no issues that require detailed discussion. Captain … liaised appropriately with [the IC] … and offered any support he could.

  • The adequacy and timeliness of the response of the NSW Police Force to the fire and its subsequent investigation;

The findings here will be of interest to readers of this blog and those concerned that reflective comments made during post event reviews may be used against those that make them.

In this matter the family of the deceased firefighter were concerned with the investigating officer could not interview firefighters on the day of the fire and that statements by firefighters were prepared with the assistance of lawyers who claimed the benefit of legal professional privilege (LPP).  In the Evidence Act 1995 (NSW) the privilege is referred to as Client Legal Privilege.  The rule is that documents and information prepared ‘for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice’ cannot be adduced in evidence (ss 118, 119).  There are also rules to limit the ability of investigators to access privileged information.  The rationale for the privilege is that the legal system would simply fail if people couldn’t honestly, and without fear, give information to their lawyers in order to get advice.  If lawyers can’t get the information they can’t give proper advice.  In court if people haven’t got proper advice cases won’t be run on their merits – successful defences won’t be put; hopeless one’s will.  But you can’t short circuit the process by allowing claimants (whether the Crown in criminal cases or a plaintiff in civil cases) to simply subpoena the defendant lawyer’s files to see what the defendant has said.  So privilege is an essential feature of the legal system.

Many might be concerned of the process and believe that it is intended to frustrate an inquiry, but that is not the case. It’s intended to allow people to get advice from a lawyer who understands the role and the process and so assist the court by ensuring that ethical and legal obligations are met.  The finding that I think will interest readers of this blog is the coroner’s finding that there was nothing untoward or problematic with this approach. At [106] she said:

Statements for coronial matters are frequently prepared by lawyers for hospitals and other agencies and in that respect the practise is not unheard of. There was nothing before me to suggest that any of the statements taken did not reflect the opinion of the witness who gave it and I was satisfied that while the practise is somewhat unusual in relation to a fire, it did not compromise the reliability of the evidence before me.

  • The availability and effectiveness of the Cobar Shire Council fire hydrants;

‘Fire fighters experienced a number of issues on the day with respect to Cobar Shire fire hydrants. These included the fact that some fire hydrants were not working properly at the time of the fire’ ([108]).  Evidence (at [111] was that with the appointment of a new General Manager, Cobar Shire had taken

… significant steps including directing the establishment of a fire hydrant maintenance program for all hydrants under Council’s responsibility; facilitating the establishment of proper lines of communication in relation to local hydrants between FRNSW and Council; ordering a public works survey to record and analyse the state of the Cobar Council Water Pipe System to ensure that all works, repairs and flows are understood and maintained; recruiting a Sewer and Water Manager who will, among other duties, regularly review the maintenance program. [The General Manager’s] … professional response to the issues arising from this inquest was commendable.

The Coroner did note that the State Government had a state wide program to provide electronic spatial data on the location of fire hydrants which is supplied to FRNSW.  Mobile data terminals provided to fire fighters are given updated information on a quarterly basis ([112]).  The Coroner did note that some councils (not Cobar) were not providing the data required.  The Coroner did therefore make a formal recommendation (at [123]).

That FRNSW provide a copy of these coronial findings to the Emergency Information Coordination Unit, Spatial Services NSW, with a view to encouraging all relevant parties to assist in obtaining up-to-date spatial information across New South Wales immediately and to facilitate the ongoing update of such information on a quarterly basis.

  • The prompt identification of “next of kin” and appointment of a support person.

The final and perhaps most important review involved the approach of FRNSW in identifying then notifying and supporting a firefighter’s next of kin. It came out in evidence that Mr Howard’s mother heard about his death from a third person, not FRNSW. At [113] the Coroner said:

This caused her great pain and affected her ability to visit the hospital where he died in a timely manner. Ms Howard also believes that she was left “out of the loop” in subsequent communications with FRNSW, the Coroner’s Court and other authorities after Daniel’s death.

FRNSW did not have an explanation for their failure to properly notify Mrs Howard, nor could they point to changes that had been made.  Accordingly, the Coroner made a formal recommendation (at [127]). She recommended:

That FRNSW audit its internal policies to ensure that the timely notification of the official next of kin occurs in tragedies of this kind and considers instituting a system where a support person is appointed to the next-of-kin where a casualty occurs.

Commentary

The inquiry

… heard oral evidence over six days in both Cobar and Sydney, and received extensive documentary material including over 80 witness statements. The court also received reports, photographs and recordings. A view of the site was conducted …

That, no doubt, represents a significant effort by all the agencies involved (Fire and Rescue, Rural Fire Service, SES, Ambulance, Police and Cobar Shire) and one might question the value given there was no doubt as to the identity of the deceased or the cause of his death.

But the response did raise issues.  The value of a Coroner’s inquest/inquiry is that it focuses the attention of the service to both review their own conduct and to come up with recommendations or responses that they can explain to the coroner.  The conduct, in open court, ensures that everyone with an interest is heard and that there can be no suggestion that decisions are made ‘behind closed doors’ or that agencies are left to review themselves without being accountable for events that lead to death or loss.

As noted the process may be traumatic and expensive but it doesn’t necessarily lead to adverse findings.  The Coroner made some recommendations to advance community and firefighter protection but she was not critical of anyone involved.   Rather than summarise the Coroner’s conclusion, it is best to set them out in the Deputy State Coroner’s own words (at [128]-[133]):

In conclusion, I offer my sincere condolences to all of those affected by Daniel’s tragic death. In particular I express my sorrow for the fire fighters he worked with. A number of those men gave evidence before me and their grief and respect for Daniel was palpable in the court room. I thank them for their contribution to fire fighting and I honour the strength of those who continued to work, even after knowing that their colleague was seriously injured or dying.

I express optimism by the positive approach taken by those representing FRNSW in relation to the issues raised in this inquest. I note that Assistant Commissioner Mark McGuiggan was present throughout the entire proceedings and I respect the open attitude taken to the opportunities for improvement as they emerged. It is also pleasing that the new General Manager of Cobar Shire Council took responsibility for some of the shortcomings that existed with Council infrastructure at the time of Daniel’s death and that since his appointment has worked to make meaningful improvements in this regard.

Finally, special mention must be made of Daniel’s mother, Genevieve. She attended each day of the inquest to make certain no wrongful criticism was made of her son. These findings make it clear that none is warranted. Daniel worked courageously in extremely difficult circumstances, his significant contribution was recognised by the Assistant Commissioner before me.

Ms Howard’s anger at how she was informed of Daniel’s death is understandable and I hope that further reflection on the issue by FRNSW will mean that these systems are continually improved. In the age of social media, prompt contact with the next of kin is increasingly crucial.

Daniel’s mother was also fighting for improvements in training and support for retained fire fighters, such as her son. In my view her voice has been heard by FRNSW.

Once again, I offer Ms Howard my sincere condolences for the heartbreaking loss of her son in these tragic circumstances. I cannot help but to admire the strength she has shown in facing such adversity.