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.
Liability
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.
Conclusion
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.
Australian Emergency Law 
Michael
A reflective piece as ever; but may I offer another perspective?
I believe that there is an expectation on a person who assumes the position of incident controller to be competent to fulfil the role. This is the case whether they have chosen to work in that position (consider the case of a crew leader on a first arriving appliance at a fire, who assumes control of an incident and does not take any steps to transfer control to a more experienced person) or whether they have been specifically appointed to it. To my mind this implies a responsibility on people to know their own limitations and transfer control, or decline an appointment, if it is clear that the incident is beyond them.
The Atherstone gross negligence manslaughter case in England that you reference was surprising to some observers (including me) not because it is inappropriate in principle to prosecute an IC for gross negligence, but because the facts of that case as the prosecution presented them did not sustain an argument that the ICs had been negligent to the requisite degree (if at all). But what about an IC who fails, and kills someone, because they are ‘having a go’ at something that is beyond their competence? You refer to an IC who is ‘honestly’ attempting to perform his or her task but that word ‘honestly’ is doing a lot of work, it seems to me, if it is the IC’s shield against prosecution.
While it is true that it may not be mandatory for a fire IC to be a ‘firefighter’ (although it is unclear how your correspondent would define that term), the IC at an incident takes personal responsibility for approving plans and strategies to control the incident, and also has the ultimate responsibility for maintaining the safety and welfare of operational crews (AIIMS 2017). I think it would be ‘brave’ (in the Sir Humphrey Appleby sense) to take on this role without having a sound knowledge of the hazard you were supposed to be controlling, and tactics for its suppression. As IC you might have to choose between rival courses of action proposed by your planning and operations officers. “I didn’t have a clue myself but the planning officer’s suggestion sounded better to me” might be less than convincing before a jury.
Paul
There is an expectation on everyone that they ‘know their own limitations’ and act accordingly but sometimes circumstances put you in a position where you are stretched beyond your experience and find your limits extend further than you realised. The first responding crew leader may think ‘this is too big for me’ and seek to hand up control to find that there is no-one to hand to or in the time it takes he or she is doing a great job. An infinite range of circumstances can be imagined.
As or the IC who fails, and kills someone, because they are ‘having a go’ it begs the causation question. How much of the ICs decision is the ‘cause’ of death rather than the fire or the flood. And how much of the having ‘a go’ was because it was them or no-one? I think ‘honest’ is the shield for personal liability. If we’re talking civil liability (the obligation to pay damages) there is no way on earth that is ever going to fall on the individual IC. It would defeat the purpose of civil liability which is to pay damages to the person who suffers loss, not to hold the decision maker to account. The IC can’t pay the damages, the state can; the state will.
As for criminal liability that is a different matter but as you imply the level of negligence required for criminal manslaughter is a high degree or gross negligence. If you find yourself the senior officer on scene you’ve got to make the call until there is someone to take over.
You say ‘the IC at an incident takes personal responsibility…’ I’m not sure what that means. We all should take responsibility for our actions, so the IC has to or should be prepared to say ‘yes I did that, it was my call right or wrong’ but that’s not the same as legal responsibility. As the Chief Officers found during the 2009 Victorian Bushfires Royal Commission ultimate responsibility fell to them and the state. I think AIIMS overstates the responsibility of the IC (but I don’t have a copy in front of me to be able to point to the relevant page).
I think the whole point of AIIMS and incident management is that the IC doesn’t have to be the expert on everything that is what the team is for. A recent appoint to lead a State Emergency Service came straight from the military – does he have ‘sound knowledge of flood and storm response’ or sound management of thinking, acting and leading. With that he can acquire the knowledge or ensure he has people around him for the technical knowledge. If you think of a first on scene fire crew of course the crew leader knows the issues. But take a long campaign fire or flood both with limited resources so you start running out of firefighter/IC but also the ICC is less involved with ‘putting the wet stuff on the red stuff’ and more involved in long term planning, the need for a firefighter to be IC becomes less obvious. Agencies are now contributing to each others IMTs because the skills are transferable. You say ‘I think it would be ‘brave’ (in the Sir Humphrey Appleby sense) to take on this role without having a sound knowledge of the hazard you were supposed to be controlling, and tactics for its suppression’. What ‘sound knowledge’ means is unclear, an SES controller may have a sound knowledge of firefighting but not an expert knowledge but putting that aside, I disagree with that assessment.
In any event this is a blog about law and the answer remains that the law does not require ‘a firefighter to be IC at a fire’.
Michael,
I agree from a practical (and for what my opinion is worth, legal) point of view that if things go smoothly, there is no reason why a fire IC needs to be from a fire background. But what if things aren’t going smoothly?
My example is of someone who voluntarily chooses or agrees to be IC at a fire, not who is forced into it by circumstances. One can imagine a situation where a critical decision has to be made and there is disagreement among other IMT officers (who, let us assume, have fire backgrounds) as to the correct decision. It is the IC’s responsibility to resolve the disagreement and make the decision: but if they have no technical background to inform their decision-making, how will that play out in a court of law if the decision is the wrong one and people die? (And for worst-case scenario planning, let’s say the decision was objectively the wrong one; one of the rival camps in the IMT was promoting a decision that no reasonable incident controller would take, but the IC, not having a fire background, didn’t know that).
My interest is in the potential for a gross negligence manslaughter prosecution, given the English precedent for this. ‘What is gross negligence’ is a legal question, but ‘was this person grossly negligent’ is a question of law and fact; and I wonder if what you are saying is ‘as a matter of law our IC in the above example could not be found to be grossly negligent’, or ‘a prosecution in those circumstances would (might?) survive a submission of no case to answer, but I don’t think a verdict of guilty would follow’?
I suspect (without knowing) that the prosecution in such a case would be able to field a credible expert to say that it was ‘a great falling short of the standard of care which a reasonable man would have exercised and … involved … a high risk that death or grievous bodily harm would follow’ (test taken from Nydam v R [1977] VR 430; acknowledgements to your 29 January 2018 post Professional discipline after serious criminal conviction – lessons from the UK) for a person without a fire background to have voluntarily agreed to be incident controller for a high-impact, high-consequence fire event. I wonder rhetorically, would the defence be able to field a credible expert to say it was not?
Paul
I think your hypothetical is so divorced from any potential reality to be unhelpful. Imagine a long campaign fire and for a period an experienced SES officer is appointed IC. That person may not have had extensive fire experience but let’s assume that the IC is not a complete moron and no doubt has been involved in fires.
If there is ‘disagreement among other IMT officers (who, let us assume, have fire backgrounds) as to the correct decision’. It is not the IC’s responsibility to resolve the disagreement and make the decision, it the IC’s responsibility to lead the team which at least at first instance would be to say ‘if you’re both giving me conflicting advice, go into a room together and work out why and come up with common advice’. If they are adamantly opposed the IC can talk to them, assess their reasoning and take their advice. The IC isn’t a judge in a court room but a team leader.
Second what possible decision could the IC make that would be the cause of someone’s death? Assuming he or she adopts a strategy – say ‘we’re going to use line A rather than line B as the point to try and hold the fire’. The IC doesn’t then go and fight the fire or tell each fire brigade where to stand and what to do. The IC will assign tasks to the various agency commanders and sector commanders and it’s up to them to determine how to achieve the ICs objectives. It’s up to the commanders to determine how to do their task and to assess safety – and if the direction is too unsafe to say ‘we’re not doing that’. If a firefighter dies attributing the ‘cause’ of death to the IC would seem impossible. (Noting that we’re talking large fires with an established IMT, not routine fires where the IC is also the crew leader on scene).
And if the death could be attributed to the ICs decision there would be the issue of how and why the IC received the advice he or she did. The reasonable IC does rely on the advice of the IMT and if a member of the IMT is maliciously wrong then that would be the decision that would be questioned.
Further if the decision of the IC is so ridiculous that it is ‘objectively the wrong one … that no reasonable incident controller would take’ those commanders are likely to, and should, question the decision and give further advice.
I am saying that apart from the example being unrealistic, the ‘IC in the above example would not be found to be grossly negligent’, not as a matter of law but as a matter of fact. As noted I don’t see how accepting the advice of the IMT would be gross negligence, that the actions of an IMT are not going to be the cause of death. And I don’t think being an experienced fire fighter is going to be the point of difference.
I stand by my conclusion. I also don’t think the sort of unrealistic example posited here helps the discussion.
Great stuff!
Quite a different situation in New Zealand, where CDEM contollers and FENZ “Authorised Officers”, have statutory mandate to “direct and coordinate” and CDEM Group controllers “must direct and coordinate resources made available” during declared states of emergency for the area they are appointed for.
The NZ Coordinated Incident Management System (CIMS) is mandated by the National CDEM Plan as the response management system to be used by all emergency response organisations, or at least that they be consistent with it.
The National CDEM Plan also outlines “lead agency” for each hazard type or consequence, therefore placing lead agency/ies controllers as the IC for the respective site, set of functions, and/or levels of response involved.