Today’s question comes from an officer with a fire brigade, though I don’t know which one.  In any event, my correspondent was

… the OIC at a house fire which had solar panels on the roof. As standard practice we isolate mains power from a building before we commit a crew to an interior attack. Currently our service recommends covering solar panels with a tarp which obviously we can’t do with a going fire underneath. In most circumstances we enter the building without doing anything about solar panels.

Recently I heard about a product that covers solar panels with a dark liquid that can be deployed without having to get on the roof. I’ve approached my service about it but haven’t received a response from them.

  • What is my liability for committing crews to a building with a known electrical hazard that hasn’t been addressed?
  • Should I be restricting operations to external firefighting for buildings with solar systems?
  • If I do commit crews to internal attack (as is normal practice) am I at additional risk because I’ve researched a solution but my service hasn’t implemented it?

I don’t know if this is the product that my correspondent is referring to, but a google search identifies at least one product (http://www.pvstop.com.au/products/) that is intended to act ‘as a liquid blanket to make solar panels safe. In the event of a short circuit or an emergency (such as a fire or flood) solar panels continue to produce potentially lethal amounts of DC voltage… The primary function of PVStop is to render panels to be electrically safe while acting as a fire retardant solution.’

I can’t answer the questions:

What is my liability for committing crews to a building with a known electrical hazard that hasn’t been addressed?

Should I be restricting operations to external firefighting for buildings with solar systems?

I can’t answer those questions as they require technical knowledge of accepted and reasonable practice within the fire fighting community, both on the risks, the best way to address the risk and the cost benefit.  If my correspondent’s fire brigade has provided training and policy direction on how to address these issues then there can be no personal liability on the commander for acting in accordance with that training.  If the training itself, or the procedures are inadequate, or the service has not considered the risk, then any liability falls to the fire service.

In Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356 the issue was the response of NSW Fire Brigades (as they were then) to a silo fire.    Allegations included:

  • Failure to provide safe system of work;
  • Failure to provide information to its employees regarding the risk of spontaneous combustion in stored seed meal, including cottonseed meal;
  • Failure to provide its employees with information regarding the fire and/ or explosion risks associated with the heating and/ or partial combustion of seed meal;
  • Failure to provide its employees with information regarding the chemical characteristics of substances associated with seed crushing plants and, in particular, the capacity of seed cake and seed meal to spontaneously combust, smoulder and give off pyrolytic vapours and gases;
  • Failure to provide its employees with information regarding the chemical characteristics of substances associated with seed crushing plants and, in particular, the capacity of seed cake and seed meal to give off pyrolytic vapours and gases when subjected to heating; and
  • Failure to provide adequate information, instruction and training to its employees with respect to use of the “Dangerous Goods – Initial Emergency Response Guide” book.

There was no suggestion that the firefighters, who had to do the best they could in the circumstances, had any personal liability.  Equally in the context described, it’s the commander’s job to undertake a risk assessment taking into account all the risks including the still active solar panels.  What the right outcome of that assessment is I can’t say.   You need to ask another firefighter ‘Should I be restricting operations to external firefighting for buildings with solar systems?’

As for the question ‘If I do commit crews to internal attack (as is normal practice) am I at additional risk because I’ve researched a solution but my service hasn’t implemented it?’ the answer is ‘No’. No doubt the service has a process to assess new technologies and to decide what to buy and supply, and when.

In WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) [2001] NSWIRComm 90 the NSW Police Service was prosecuted for failing to ensure the health and safety of two police officers who were ambushed and killed when approaching a man who had previously threatened to harm his former girlfriend.  Part of the case against the police force (and not the person who dispatched those officers to the job) was that the police firearms were inadequate. We need not consider the details of what happened or the various issues that arose in that case, but at [15] Hungerford J said to counsel for the police:

Perhaps it’s a matter of degree. This is an area that I’m really troubled about, I have to say to both of you because where is the line drawn? One might say, having in mind quite apart from the terms of the Act, even the common law duty to provide a safe working environment… there seems to be at least an argument supporting the proposition that the employer must provide certain equipment to ensure safety. Perhaps that’s right, but how far does one go? This is what is troubling me. Does one say that the employer has to provide helmets, shields, bullet proof vests, Glock pistols, immediate back up support and so on? It is that question of degree where I’m trying to balance the obligations cast by the section and particular circumstances.

Charges against the police with respect to the failure to provide Glock pistols and rapid reload devices for the service revolvers were dismissed.

Equally for firefighters where is the line drawn?  No doubt there is much more equipment that could be provided, perhaps robots for internal firefighter, more crews for each response, technology that I have no idea about etc.  But just as the police force doesn’t have to make every police car an armoured vehicle (QPS launch new EORT armoured vehicle (March 22, 2017)) not every piece of equipment has to be issued to a fire brigade.  Whether technology such as PVStop should be purchased and issued requires consideration of multiple factors – risk, cost, alternatives etc.

I am lucky enough to regularly attend the annual conference of the Australian Fire and Emergency Services Authorities Council (AFAC).  There is always an impressive trade display of people selling the latest technology ranging from PPE to fire appliances. Imagine a fire commander seeing that the newest appliance has safety features that are not on the appliances currently used by his or her brigade. The Commander can’t be liable because the brigade continues to use the older appliances nor is the Commander required to buy a new appliance for the brigade. You use the equipment you have and the training you have.

What do you do?

Assuming my correspondent’s brigade is from a jurisdiction other than Victoria or Western Australia, there will be a work health and safety Act based on the model act developed in 2011.  In WA and Victoria older style occupational health and safety legislation is in place. In each state and territory that legislation provides for employee consultation on work risks.  A commander who thinks there is a risk (active solar panels) where training is inadequate or available and suitable technology is not be used then there are processes to raise this with the employer.  Ranging from raising it in a W/OHS committee meeting, to bringing in the work cover regulator or issuing stop work notices there are processes in place.  If my correspondent thinks the issue of active solar panels presents a risk to health and safety that is not being adequately addressed he or she should follow those procedures.

Conclusion

There is however no risk of personal liability if the commander does his or her job in accordance with training and with issued equipment.   Part of that training no doubt is to conduct a risk assessment at every job. Part of the risk will be the presence of active solar panels.  What should be the outcome of that risk assessment, ie

  • Should crews be committed to a building with a known electrical hazard that hasn’t been addressed?; and
  • Should I be restricting operations to external firefighting for buildings with solar systems?

Are technical not legal questions.  They only become legal questions if the consensus of opinion of experts in firefighting is ‘no’ and ‘yes’ respectively.