This question arises out of recent storm events across NSW. My correspondent received an email from a NSW SES Local Commander that said, in part (emphasis added by me):
… As the combat agency, we own all jobs that are called in or received until such time as they are completed. Jobs ARE NOT complete when we refer them to Essential Energy, our local council or Enviro Frontier. They are just referred to an organisation that is assisting us to complete the task – WE STILL OWN IT…
The important thing is that we (SES) still own the job and are liable and it CANNOT be marked as complete until such time as completion has been confirmed with the referee, i.e. council, Essential Energy, Enviro Frontier or whomever the job was referred to. In most instances that entails a return telephone call to the assisting organisation and obtaining confirmation of completion.
My correspondent says:
Hi Michael, I thought if a job is referred to, and accepted by, another agency then they have accepted the tasking. Is it then up to us to confirm that the job FRNSW, RFS, or Councils, have done what they said they would do?
On an initial point I do wish people did not use legal terms of art – such as ‘liable’ or ‘duty of care’ when that is never really the issue. Raising legal issues, in this case ‘we (SES) still own the job and are liable’ is in my view either misplaced or trying to scare people into compliance. Make the argument on what is good practice rather than raise issues of ‘liability’.
To now turn to the question. I did write about a similar issue in Clearing up storm damage and the role of the property owner in NSW (August 18, 2014). There the issue was whether there was a duty to follow up referral of jobs to local governments etc when the damage was on their land. That’s slightly different to the situation described here but I think the principles are going to be the same.
The starting point is the State Emergency and Rescue Management Act 1989 (NSW). That Act says (s 3) that the ‘combat agency’ is ‘the agency identified in the State Emergency Management Plan as the agency primarily responsible for controlling the response to a particular emergency’. Control ‘means the overall direction of the activities, agencies or individuals concerned’ and controlling has to have the meaning of exercising ‘control’. The SES is the combat agency for the response to storms (State Emergency Service Act 1989 (NSW) s 8(1)(a); NSW Emergency Management Plan, Annexure 3).
I don’t know what it means to say the SES ‘own the job and are liable’. Liable for what? The SES role is to set the ‘overall direction of the activities, agencies or individuals concerned’. To set the priorities of the coordinated response. It doesn’t mean the SES have to do every job, hence the SES can and does make use of its own assets (SES units) as well as assets from the RFS, FRNSW, councils etc. How the SES choses to assign tasks and what procedures it has is a matter for the SES.
It makes sense that the SES wants to know when a team to which a task has been allocated has been completed. It would want to know because it is poor customer service if a person rings back in 48 hours and asks ‘where are you?’ when the coordinating team thought the job was done. Government agencies also want to keep statistics because it is important for accounting within the agency, for reporting to government on what they are doing and keeping the Minister informed and important for reporting to the public. It is also important for planning to know at any given time what jobs are still outstanding.
It also makes sense to me that the local coordinating team would want to know from everyone, whether it’s an SES unit, an RFS brigade, a power supply authority etc when the jobs they have tasked them with are complete. They could have SOP’s that say those agencies should report ‘job done’ but they have less interest than the SES has, so it makes sense that the SES may have a procedure that if the job hasn’t been reported as complete within a reasonable time frame, you may ring back to check its status.
There must also be times when the job is not an SES job. Someone may ring 132 500 to report a power line down in a storm and the SES may ring the electricity supply authority to report that. Is that really an ‘SES job’? The relevant authority own the poles and wires and it’s their job to go and make it safe and restore power. There’s nothing the SES is going to do to restore power if the power authority does not. R
I think the important thing to note, from the point of view of this blog, is there is no clear legal obligation to ring the agency that was tasked with the job to confirm that it is complete. That the SES choses to implement a policy to that affect in order to be able to ‘close the loop’ and report another job well done, that is a matter for them and does make some sense.
Conclusion
If a job is referred to, and accepted by, another agency then it is up to the SES to confirm that the agency (FRNSW, RFS, or Councils) have done what they said they would do if that is the way the SES choses to manage its business. As I said in my earlier post:
The Commissioner is ‘responsible for managing and controlling the activities of the State Emergency Service’ and ‘is to have overall control of operations in response to an emergency’ caused by flood, storm or tsunami (State Emergency Service Act 1989 (NSW) ss 11, 19 and 20). If the Commissioner decides that he or she requires the SES to follow up on such tasks, as an exercise of his or her control over the service or to satisfy him or herself that the emergency operations are complete, then he or she can require that and a local controller would be required to give effect to that direction (s 17(3)).
Australian Emergency Law 
“That which has not been inspected, has not been done”
Refer it.
Mark it as “out of jurisdiction/eyc”
Get a job number
Put it on the report
Move on
Michael, like most things the original email should be put into context.
I was the originator of the communication in my role in the SES as Local Commander at Coffs Coast (based in Coffs Harbour NSW). I am not a lawyer and my only exposure to the law has been in contract law and review of proposed legislation to ensure it satisfies the intent of the organisation for whom it is being created.
That said, the email was written because in the SES internal response system, in a very recent event, some storm jobs were being ‘rejected’. As you note “… The SES is the combat agency for the response to storms (State Emergency Service Act 1989 (NSW) s 8(1)(a); NSW Emergency Management Plan, Annexure 3). and my interpretation of that is we therefore OWN a job or task until it is completed, either by SES or externally allocated resources.
The word ‘liable’ was probably not the most appropriate, maybe ‘responsible’ would have been better. However, in the following hypothetical who is liable?
Briefly, a tree is down across a regional road on a blind corner. A person who travels the road many times a week drives down the road and crashes into the tree. The person is critically injured and the car is written off. The tree across the road had been previously reported to SES and a job created and assigned to Kickatinalong Unit who had referred the job to Kickatinalong Council and in their unit records marked the job as completed. Kickatinalong Council had not as yet got to the job.
The question then is who is liable and who are the lawyers going to take to task?
I have seen a similar situation and it was SES’s door the lawyers knocked on as the first call for liability.
Would be interested in your response.
Thank you for the comment and the context.
I agree that the word ‘responsible’ would be better than ‘liable’. Let me then turn to your scenario but let me change it ever so slightly, and say that it is both a passenger and the driver who are critically injured. In that scenario who is liable? The answer is the driver.
First the SES and the Council are in the same position. If you think there is some liability to the SES because it has been ‘reported to SES and a job created and assigned to Kickatinalong Unit’ then that is also true for the Council. The matter has been referred to Council and they, like the SES, have not actually got there to do anything about it. Being the agency responsible for controlling the response may impose an obligation to ‘control the response’ but that’s been done by ringing the council.
Regardless of who it is responsible for actually doing ‘the job’, there is not a duty to rescue or to prevent injury (Stuart v Kirkland-Veenstra (2009) 237 CLR 215 and on that point, I do note that there has been a relevant decision handed down this week – Ibrahimi v Commonwealth of Australia [2018] NSWCA 321. I’m still working my through Ibrahimi and there will be a post on that case sometime before the New Year). The SES don’t own the tree (the council might, we’ll come back to that). The failure of the SES to get there hasn’t changed the risk to the driver – ie the risk of accident is the same whether the SES, or council, have been told or not.
The council may be in a different position if they own the tree as there could be issues of the management of trees. That would be difficult but easier if you can show that they knew or should have known of the dangerous state of the trees. But all trees can fall over so the mere presence of a tree isn’t sufficient.
Both council and the SES have to determine priorities. There cannot be an immediate response to a call so there will always be a period of time between the call and the response. It cannot follow therefore that there is necessary liability if a request for assistance has been made but not acted on. It is up to the Council and SES to determine how tasks are prioritised and even what tasks they will undertake. The SES may be the combat agency for storms but that does not mean they are responsible of someone suffers damage even if that is foreseeable – see NSW premises made unsafe by storm – Obligations of the SES (January 7, 2017).
The driver of a car owes a duty of care to all road users including his or her passengers. The reasonable driver cannot drive on the assumption that the road past a ‘blind corner’ will be clear. The driver may come around that corner and find an animal on the road, a child on the road, an accident, a tree or even an SES vehicle with the crew acting to clear a tree. If the driver cannot stop, if familiarity with the road has bred contempt, then it is the driver who is at fault.
All motor vehicles are covered by compulsory third party insurance (CTP). The passenger was injured in the use of a motor vehicle accident and his or her claim will be governed by the Motor Accident Injuries Act 2017 (NSW) and, if there are injuries are catastrophic, the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW). That Act sets out how the claim is to be made and against who, that is the CTP insurer. The CTP insurer may have the right to seek to recover from a tortfeasor but for the reasons given above I would suggest there would be no liability and no CTP insurer would bother with the cost and effort.
In these days, the driver at fault can also recover compensation under the Motor Accident Injuries Act 2017 (NSW) and the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) (though not as much compensation as the person who can prove another is at fault). But given the compensation that would be paid out, the risk of litigation would be extreme.
In conclusion my response is that in the circumstances described, the only person who would be liable would be the driver of the motor vehicle involved in the collision.
Thanks Michael. Makes the matter of liability in such situations much clearer from a SES and legal perspective.