Today’s correspondent asks if I:
… have any work on the legal responsibility and accountability for incident controllers? Particularly, if something went wrong could liability be put on the IC? And do ICs need to have the appropriate skill set… E.G, being a firefighter to be IC at a fire. Or can an AIIMS trained non firefighter be the IC?
The role of the incident controller and the use of the Australasian Inter-Service Incident Management System (AIIMS) is not generally provided for in law (but see as an exception to that rule at least with respect to the role of the IC, the Fire and Emergency Act (NT) s 19). The general principles in Australia are that for each emergency there is a command or combat or hazard management agency (nomenclature varies) that is responsible for managing the overall response to the emergency. How they do that is up to them. The agencies have chosen to adopt AIIMS to give a common operating platform to allow agencies to better work together. An Incident Controller (IC) only has the authority and power delegated to him or her from the chief officer or provided in legislation. (In some Acts the power is vested in an ‘officer’ or ‘the officer in charge’ or ‘the senior officer’ and sometimes it’s the Chief Officer or Commissioner who can then delegate).
However it works the IC is there as the representative of the agency that he or she works or volunteers for. He or she is not there in a personal capacity, they are not there because someone asked them to come and manage an emergency, they are then because someone asked the emergency service to come and manage the emergency and the emergency service sent the IC as part of the response team.
The relevance of that is that any civil liability must belong to the agency involved or for most government agencies, the liability falls to the Crown or State. Following the 2003 Canberra bushfires there was civil litigation that alleged the IC controller had been negligent. The trial judge did find that some of her decisions failed to meet the standard expected of a reasonable controller. But there was no suggestion at any time that she could be or would be personally liable. The defendant was at all times the State of New South Wales – see
- Judgment in the litigation arising from the Canberra fires of 2003 – updated 19 December 2012 (December 18, 2012) and
- ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires (November 3, 2014).
There has been allegations of criminal negligence by incident controllers – see
- UK Incident controllers charged with manslaughter (December 7, 2011) and
- UK Incident controllers cleared of manslaughter (May 31, 2012).
Manslaughter by criminal negligence requires negligent conduct that falls so far below the standard of care expected that it warrants criminal punishment (see Professional discipline after serious criminal conviction – lessons from the UK (January 29, 2018)). I simply cannot imagine circumstances where an Australian incident controller would face prosecution for that offence. Consider the outcome for the incident controller of the 2007 Boorabin fires in Western Australia. During the response to those fires the incident controller allowed a road to be opened. A forecast wind change occurred carrying the fire over the road and killing three people. The Coroner, in his findings following the Inquest into the deaths of Trevor George Murley, Lewis Kenneth Bedford and Robert Wayne Taylor (20 November 2009) said (p. 34):
It is remarkable in this case that the Incident Controller took so little care to inform himself adequately of weather conditions at the fire zone.
AT p. 53:
The course of the fire on the evening of 30 December 2007 was predictable and should have been predicted by the Incident Management Team compromising DEC staff. The Incident Controller, Mr Hooper, made a decision to open the road in circumstances where it appears that no attention was paid to available specific and high quality weather information.
And finally, at p. 60:
Of particular concern in this case is the fact that the Incident Management Team at Kalgoorlie comprising DEC staff all failed to pay appropriate attention to important weather forecast information. Particularly concerning is the fact that the DEC Incident Controller not only failed to place appropriate reliance on wind change information provided to him, but even at the time of the inquest failed to appreciate the fact that on the available information the fire spread was predictable and, further, he did not appreciate that his failure to pay attention to significant wind change information was, at the least, careless.
Even with that damning assessment there was no suggestion that the IC would face criminal charges or even internal disciplinary proceedings – see Joseph Sapienza and Liam Phillips ‘Bushfire controller to escape punishment’ WAtoday (Online) 21 November 2009.
The risk of criminal liability may increase where a decision of an IC leads to the death of emergency service workers in particular in states where there is a law on industrial manslaughter. That was the situation in the UK where the incident controllers were charged and ultimately acquitted. It was also a factor in decision making in the rescue (or failure to rescue) Margaret Alison Hume (see Legal confusion leads to unnecessary death (December 8, 2011)). Industrial manslaughter laws are not common in Australia, I am only aware of industrial manslaughter laws in the Australian Capital Territory (see Crimes Act 1900 (ACT) ss 49A-49E). Even then, there is such a long way between adverse outcome and criminal responsibility that deliberate malfeasance excepted, it is inconceivable that an IC would be ‘liable’ for poor outcomes that are an inevitable part of responding to emergencies.
Appropriate skill set
Of course an IC should have the appropriate skill set but what that is may be open to debate. The latest version of AIIMS (Australian Fire and Emergency Services Authorities Council, The Australasian Inter-Service Incident Management System (Melbourne, 2017)) says (p. 85):
At any incident, achieving control requires effective leadership and good management at all levels in the AIIMS structure. Effective leadership and management in incident control requires more than technical proficiency in the role.
Whilst it is important to have ‘technical knowledge of the type of hazard that is the focus of the incident’ it is not necessary for the IC to have that knowledge. The IC needs to have ‘personnel with strong technical knowledge within the team…’ (p. 89).
Noting that AIIMS is not enshrined in law but is rather adopted by convention or practice, there is no legal requirement for a firefighter to be the IC at a fire. The officers with the authority to appoint the IC or delegate to the IC can appoint anyone they like to be the IC.
Whilst it is bold to say ‘never’ I can imagine no circumstances where an IC who is honestly attempting to perform his or her task, no matter how incompetently would be personally liable for any poor outcome. If the IC is incompetent, the fault lies with the agency chief that appointed him or her or failed to monitor performance. Any liability will fall to the agency.
An IC should have the appropriate skill set for the task but that skill set is not the technical skill set to lead the on-the-ground response, it is the skill set required to lead a team and make decisions.