This question is prompted by a news story that came out last week – see Bellinda Kontominas and Lily Mayers ‘Hot air balloon company criticised by police for not calling triple-0 after crash that injured 9’ ABC News (Online) 30 March 2018.

The gist of the story is that a hot air balloon with 24 passengers and crew ‘crashed after hitting a tree while trying to land in the tourist town of Pokolbin’ (in New South Wales).  Nine people were taken to Cessnock Hospital by private vehicles.  No call was made to either NSW Ambulance or Police.

Inspector Rob Post, from Hunter Valley Police, said he was unsure what processes the company had in place in the event of a balloon crash, but he would have expected them to call triple-0…

He said police were not looking to lay any criminal charges in relation to the company’s failure to report the crash.

With respect to the injured, the story reports NSW Ambulance Inspector Luke Wiseman saying:

… nine people were taken to Cessnock hospital… injuries included suspected broken bones.

Two people with suspected spinal injuries were later transported to John Hunter Hospital in stable conditions for additional testing…

He said in circumstances where people were injured, it was important that emergency services be called so patients could be properly assessed and triaged.

Damian Crock, from the Professional Ballooning Association of Australia is quoted as saying:

“The pilot deemed that there was no need for emergency services to be called.”

“As a precautionary measure, three passengers were transported to Cessnock Hospital after the pilot had enquired into each passenger’s welfare,” he said…

“It’s certainly a regrettable incident and people have been injured, so we can definitely confirm that, but their injuries are not life threatening,” he said.

With respect to the number of patients, it appears nine attended hospital, but the pilot only inquired about three.  It may be that the pilot didn’t know that others were injured and that may be because they didn’t tell the pilot, or the pilot didn’t inquire.  We don’t know those details.

Assumptions

For the sake of this discussion I will assume:

  1. Given that two people ‘were later transported to John Hunter Hospital’ there were at least two serious injuries, but none were obviously life threatening; and
  2. The pilot did not appreciate the serious nature of those injuries.

Given those assumptions, the question I want to consider is: Was the failure to call triple zero illegal?  Is there any obligation to call triple zero?  If the answer to those questions is ‘no’ then it stands to reason that ‘police [are] not looking to lay any criminal charges in relation to the company’s failure to report the crash’ because there would have been no crime committed.

Is there an obligation to call triple zero?

The answer is clearly ‘no’; there is no legislation that says, in these circumstances, a triple zero call must be made.  We can take a broader view here.  The NSW SES are the combat agency for floods and storms, but if my property is affected by a flood or storm I don’t have to call them; I can sort it out myself.  Equally if there is a fire in my home and I put it out I don’t have to call the fire brigade even though Fire and Rescue NSW or the NSW RFS are responsible for providing firefighting services.  And if I want to drive someone to hospital rather than call an ambulance I can.

With respect to ambulance services, they encourage people not to call triple zero.  NSW Ambulance says ‘Save Triple Zero (000) for saving lives and only call in a medical emergency’.  It gives examples of when to call an ambulance such as ‘injury from a major car accident’ or ‘falling from a great height’.  Being a balloon hard landing is not the same as falling from a great height (they didn’t fall from the balloon) but in any event, accepting the advice from NSW on face value, it would have been appropriate to call triple zero for an ambulance, but that doesn’t create an obligation to do so.  In any case, someone has to decide that a person is injured, that is that the accident has caused a medical emergency. If we take (again on face value) the comment that ‘”The pilot [and presumably everyone one else who could have called triple zero] deemed that there was no need for emergency services to be called”’ then there can be no reason to call.  If we’re going to   ‘…only call [triple zero] in a medical emergency’ there can be no obligation to call, and people are in fact discouraged from calling, if they don’t think there is an emergency.

As I argued in a recent article that appeared in Response (a publication of Paramedics Australasia of which I’m a board member; see Michael Eburn and Ruth Townsend, ‘’Save OOO for emergencies’: A flawed approach to reducing demand for emergency ambulance services’ (2017) 44(4) Response 23-26 at p. 25):

Campaigns such as ‘Save 000 for emergencies’ seek to manage demand by encouraging people not to call for an ambulance unless they have accurately assessed that the situation is an emergency.  Campaigns like this are, however, asking the community that is made up of fallible and flawed human beings [and balloon pilots], to make the decision and to accept the risk that they are not in need of urgent care. Asking people not to call unless it is an emergency, and criticising them for getting the assessment wrong, is in our view neither helpful nor professional.

NSW Police say:

If you need police, fire or ambulance in an emergency call Triple Zero (000). Always call Triple Zero (000) in situations where a life is in danger, a crime is taking place, or in time critical situations.

It would appear that no-one believed a life was in danger or that it was a time critical situation.  And if it’s not time critical people are encouraged to ring the Police Assistance Line (131444).

There is an obligation to report motor vehicle accidents to police (Motor Accidents Act 1988 (NSW) s 42) but that’s not an obligation upon the driver but on the person who may be injured and seeks to make a compensation claim.  There is also a duty to provide particulars to police in some circumstances, including where a person is killed or injured (Road Rules 2014 (NSW) r 287). It does mean that if this had been a vehicle accident, rather than a balloon accident, then there would have been an obligation to report it to police but no obligation to call triple zero.

One might think there was some crime with respect to the operation of the balloon but even if that’s true, there is no obligation upon a person to ring triple zero to report that they may have committed a crime. And even reporting a crime should go through the Police Assistance line unless it’s ‘time critical’.

Negligence law

On the Facebook version of this blog, where I first posted a link to this story, one commentator wrote ‘I can’t believe they failed their duty of care like that’.  It may be the case that the failure to ring triple zero and arrange ambulance response was a breach of a duty of care but we can’t say that with certainty.  It rather depends on the situation as observed by the people there and the pilot.  The assessment that the injuries were not life threatening and that the resources of an ambulance was not required may have been reasonable, even if wrong.

Work Health and Safety Act 2011 (NSW)

I assume that the pilot was an employee, and this was therefore a workplace.  My aim here is to consider whether there was any legal obligation on the pilot to call triple zero rather than resolve every legal issue so I’m going to assume, without further discussion, that even though this was an aviation accident the Work Health and Safety Act 2011 (NSW) continues to apply.

Under the Work Health and Safety Act 2011 an event that causes a serious injury (which includes treatment for a spinal injury; Work Health and Safety Act 2011 (NSW) s 36) or a dangerous incident (which includes ‘the fall or release from a height of any plant, substance or thing (s 37) is a ‘notifiable incident’ (s 35).  The person conducting a business or undertaking must report a notifiable incident ‘immediately after becoming aware that a notifiable incident … has occurred’.  That duty may have imposed a duty on the balloon operator to notify SafeWork NSW but that is not the same as a duty to ring triple zero.

Further, s 39 says:

The person with management or control of a workplace at which a notifiable incident has occurred must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs.

It may well be therefore that an offence was committed by removing the balloon before a SafeWork inspector arrived, but again that is not the same as a duty to ring triple zero.

Under the Work Health and Safety Regulation 2017 (NSW) r 43 there is a duty to prepare, maintain and implement an emergency plan.  Emergency procedures are required to provide for

(i) an effective response to an emergency, and …

(iii) notifying emergency service organisations at the earliest opportunity, and

(iv) medical treatment and assistance, and …

Further ‘A person conducting a business or undertaking at a workplace must implement the emergency plan for the workplace in the event of an emergency’ (r 43(4)).

We don’t know, from the story, what the company’s emergency plan was or how they defined emergency.  It may be, however, that if the plan provided that, in these circumstances, the appropriate response was to call triple zero then there may have been an offence if they balloon pilot failed to implement the plan or if the balloon company didn’t have an adequate plan.

Transport Safety Investigation Act 2003 (Cth)

Under this legislation an accident involving a civil aircraft (‘VH’ registration) that causes ‘serious injury to: … (i)  a person on board the aircraft…’ is an immediately reportable event (Transport Safety Investigation Act 2003 (Cth) ss 3 and 18; Transport Safety Investigation Regulations 2003 (Cth) r 2.3).  As a result the pilot (and others associated with the balloon company; see Transport Safety Investigation Regulations 2003 (Cth) r 2.5 definition of ‘responsible person’) may have had an obligation to report the accident to the Australian Transport Safety Bureau (the ATSB) by telephone ‘as soon as is reasonably practicable…’ (Transport Safety Investigation Act 2003 (Cth) s 18 and Transport Safety Investigation Regulations 2003 (Cth) r 5.4) and with a full written report within 72 hours (s 19).

Even if there was an obligation to report this event to the ATSB but again that does not equate to an obligation to ring triple zero.

Conclusion

The stimulus for this question was the quote attributed to Inspector Rob Post, from Hunter Valley Police.

“He said police were not looking to lay any criminal charges in relation to the company’s failure to report the crash.”

The question I set out to answer was ‘Was there an obligation to call triple zero to report the crash?’  If the answer is ‘no’ then of course police can’t lay any criminal charges and it did beg the question of is there an obligation to call the emergency services?  (And let’s be clear, I’m not addressing whether the failure to call triple zero was a good idea, just whether it was unlawful).

It may be that it was negligent not to call for ambulance assistance but we don’t have enough information to draw any conclusion on that point.  Civil negligence is not a matter for the police or ‘charges’.

The clearest obligation to report an accident to police relates to motor vehicles.  Most (but not all) aircraft accidents must be reported to and primarily investigated by the ATSB.  The obligation to ring triple zero, if there was one, may arise under the Work Health and Safety Act 2011 (NSW).

What follows is that there is no obvious legal obligation to ring triple zero, even if like Inspector Post, you ‘would have expected them to call triple-0’.  An expectation does not give rise to a legal obligation.