In my work I hear from people in the emergency services who fear that they will be liable, either personally or that their agency will be, if they fail to protect people from disaster or their own actions or fail to rescue them when they find themselves in trouble.  It has been a theme of this blog that there is no common law duty to rescue.  Further, the common law may impose tort liability if you cause harm, but not if you fail to prevent harm.  These issues have again arisen and again a superior court has confirmed that there is no duty to prevent harm or to effect a rescue.

The issue arose in Ibrahimi v Commonwealth of Australia [2018] NSWCA 321.  This was a class action following the shipwreck of the boat identified as SIEV [Suspect Irregular Entry Vessel] 221.  SIEV 221 was smashed against rocks on Christmas Island, off Western Australia, at about 6.30am on 15 December 2010.  50 people died and 41 people were rescued.  The action was brought on behalf of those that survived and the relatives of those that died as well as those who witnessed the accident and were exposed to a risk of psychological harm.

The action was brought against the Commonwealth of Australia over alleged failures by then Border Protection Command to effectively patrol the waters to the north of Christmas Island to intercept SIEV 221 before it ran aground and for negligence in response to the emergency when the vessel was in distress and there was a threat to the safety of lives at sea.   The Commonwealth succeeded at trial, the plaintiff’s appealed. The decision on appeal was delivered by Meagher JA with whom Payne JA and Simpson AJA agreed. (I note that even though the event occurred on or near Christmas Island and the relevant law was the law of Western Australia, this action was heard in NSW.  The choice of the NSW Courts is not explained.  I assume it probably has something to do with the class action rules in NSW).

At the time, Border Protection Command had available to it two boats, the HMAS Pirie operated by the Royal Australian Navy, and the ACV Triton operated by Australian Customs.   Two other boats, the Colin Winchester operated by the Australian Federal Police and the Sea Eye, operated by the Volunteer Marine Rescue Service were currently out of service.

The SIEV 221 was observed sailing toward Christmas Island at 5.40am.  It was observed at various points until 6.15am when it was struck by a wave and a fuel drum was lost overboard. With no fuel the vessel was now in imminent danger of being dashed on the rocks. At 6.28am the vessel was ‘being violently pushed and pulled by the swell and taking on large amounts of water from waves crashing over its sides. Parts of the vessel were beginning to break up.’

At the time the Pririe was not on active patrol.  It had intercepted SIEV 220 the day before and was standing in the lee of the island (ie out of the weather) and standing by whilst a ‘steaming party’ from the Pririe took control of SIEV 220.

At about 6am, Commander Livingstone of the HMAS Pririe was contacted by the Commander of the ACV Triton to see if he had been advised of a possible SIEV.  The two commanders agreed that Pririe would sail north to investigate SIEV 221 whilst the Triton would take over the control of SIEV 220.  It took some time to recover crew and get ready to sail.  By 6.32am the Pririe was sailing north.  At that time the commander also received notice that SIEV 221 had lost its engines and was 50m off the rocks.  At 6.35am tenders from the Triton were also launched to assist with what was going to become a dangerous rescue.  By 7.08am crews from both the Pririe and the Triton, operating in smaller boats were affecting rescue and body recovery.  Operations continued until 1pm.  Over the next 2 days further searches failed to find any more bodies or survivors.

The question of a duty of care

The Commonwealth did not owe the alleged duty of care to the occupants of the SIEV.   The risk of being shipwrecked when travelling to Australia in an unseaworthy vessel was not a risk that (at [207]) were ‘directly increased by any positive act of the Commonwealth’.   At [215]:

… the patrol operation north of Christmas Island included a series of positive acts, none of them caused the shipwreck of SIEV 221. The Commonwealth is not said to have contributed to the weather on 15 December 2010, or the failure of the boat’s engine, or any other physical event or state of affairs capable of bringing about a shipwreck.

And at [223]:

… nothing done by the [Commonwealth] in this case made the situation of those on board the SIEV worse. In particular, there was no evidence that the provision or sponsorship of rescue facilities tended to dissuade intervention by any third party.

The Commonwealth may not have prevented the ship sailing onto the rocks, but there was nothing the Commonwealth did that caused or contributed to the ship sailing onto the rocks.   And the belief that the Commonwealth would come to the rescue did not stop anyone else (had there been anyone else available) to come to the SIEV’s aid.

A critical issue in deciding whether there is a duty of care, in this case a duty to intercept and/or a duty to rescue, is the vulnerability of those at risk.  On one view the passengers on the SIEV were very vulnerable.  They were on an unseaworthy vessel, without engine, in poor weather and at risk of and then in fact being caste upon the shore.  Neither the trial judge nor the judges on appeal saw that as the correct formulation of the risk.  At [233] Meagher JA said:

As I have said, the relevant risk of harm in the present case was the risk of harm from a SIEV being shipwrecked. It was not a risk arising from the failure of the Commonwealth to intercept the vessel prior to it being wrecked. The appellants failed to demonstrate that an ascertainable class of persons were reliant on the Commonwealth to protect them from the risk of shipwreck. The primary judge was correct to conclude that the ability of the class to protect themselves from the risk of shipwreck by not embarking on the journey was a factor tending against the imposition of the duty of care alleged.

That is they was something they could do to protect themselves from the risk of shipwreck and that was something that did not depend on the Commonwealth.  They could have decided not to get on board the boat before it set sail from Indonesia.

The flip side of vulnerability is the issue of control.  A defendant cannot owe a duty of care unless it can exercise control over the risk. In this case the risk was the risk of shipwreck. The Commonwealth may have been in control of the rescue mission but that was not the risk.  Meagher JA said (at [237]):

… the capacity of a public authority to take action to protect another person from harm is too remote to constitute legal or practical “control” for this purpose.  The relevant risk of harm in the present case was the risk of harm from a SIEV being shipwrecked. It was not a risk of harm from the failure of the Commonwealth to intercept the vessel prior to it being shipwrecked. If the risk of harm is characterised in the way asserted by the appellants, a public authority would always have relevant control in a rescue case as it is self-evident that a person in need of rescue will always be exposed to an underlying risk if not prevented from engaging in the activity giving rise to that risk. The primary judge correctly concluded that the risk to the appellants did not arise from any conduct on the part of the Commonwealth.

Finally it was alleged that finding that the Commonwealth owed duties to intercept and rescue those arriving on SIEV’s would be inconsistent with the Commonwealth policy. More importantly, for readers of this blog, is [257] where Meagher JA said:

When public authorities, or their officers, are charged with the responsibility of exercising powers in the public interest, the law does not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.

Even if there had been a duty of care, the appellants were unable to establish that there was anything different that the Commonwealth could or should have done to respond to the emergency or that anything reasonably done, or not done by the Commonwealth agents, caused the plaintiffs’ losses or damage.   For the sake of this blog we do not need to consider the details of the heroic rescue attempts by the crews of the Pririe and the Triton.  Suffice to say that there was no real prospect that either the Pririe, the Triton or the boats launched from them could have towed SIEV 221 to safety or come closer the floundering boat.

Discussion

A summary of the key points of Ibrahmi can be taken from the headnote (a summary written by the Court).  The key points are:

  1. The mere foreseeability of harm does not produce a duty to prevent its occurrence…
  2. First, the likelihood and extent of harms suffered are not said to have been directly increased by any positive act of the Commonwealth…
  3. Secondly, the interception operation involved choices by the defendant about the exercise, and non-exercise, of statutory and prerogative powers…
  4. In respect of vulnerability, there was no reliance by the group members on the defendant which would give rise to relevant vulnerability
  5. With regards to control, the degree and nature of control by a public authority over the relevant risk of harm is crucial in determining the existence of an alleged duty of care. The primary judge correctly concluded that the risk to the appellants did not arise from any conduct on the part of the defendant, and the defendant did not have control in the relevant sense…
  6. A public authority that chooses to perform an act authorised, but not required, by statute is generally liable for any negligence in its performance. However, it is not generally liable for the mere choice not to perform such an act. There is no expectation of general reliance, that an entity will properly perform its public or private function…

Applying those principles to Australia’s emergency services the parallels are:

  1. The SES’s and the fire brigades may foresee that people are at risk from storm, flood or fire but that does not create a legal duty on those agencies to prevent that harm. Consider the role of the NSW SES in response to storms. In anticipation of a storm citizens could call 132 500 and ask the SES to come and clean the gutters. That would reduce the risk of harm (just like patrolling north of Christmas Island to intercept a SIEV would reduce the risk) but that does not create a legal obligation to do so.
  2. The actions of the SES or the fire brigades do not increase a risk. Where there is a fire burning or a flood the agencies are not in control of the risk. This is even more so when people chose to drive into flood waters or remain to defend their property.  In a comment to an earlier post (NSW SES following up on jobs assigned to other agencies (December 23, 2018)) I was given this scenario and question:

…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 risk is a risk of collision with an obstacle on the road.  The choice of a driver in how he or she operates a vehicle is the source of risk.  An agency like the SES may have a response capacity to a tree down but they did not create the risk – they did not cause the tree to fall nor are they responsible for the maintenance of the tree.  There is nothing the SES does that increases the risks to drivers who have to drive with an expectation that there may be obstacles on the road at any time.

As Meagher JA said in Ibrahimi “… the capacity of a public authority to take action to protect another person from harm is too remote to constitute legal or practical “control” for this purpose.”  In the scenario given above the relevant risk is running into a tree on the road, not a risk that the SES will fail to clear the road or fail to rescue the person in time should they collide with a tree.

  1. Like the Commonwealth on Christmas Island, the Australian emergency services have many options but few obligations. Taking NSW SES as an example, they are required to control the response to emergencies caused by storms, floods and tsunami (State Emergency and Rescue Management Act 1989 (NSW) s 8(1); NSW Emergency Management Plan, Annexure 3)) but there is nothing in the SES Act that says that the SES must do any particular thing.  What services the SES choses to provide are a matter for the SES’ discretion. After the storm the SES may choose to come and tarp roofs or clear trees but there is nothing in the SES Act that says the SES must do those things.    And what different units consider a proper SES job varies, as it should.  Different units have different risks and differing levels of support from other agencies. Some SES units may clear trees off a road, others may refer those jobs to their local council.

Exercising choices does not generally give rise to a duty to perform any particular action or response.

  1. People are not dependent on the SES or fire service to reduce their vulnerability. People do not fail to prepare their properties for floods, storms or fires because they believe that the emergency services will come and protect them or reduce their risk.  No-one can drive at 120km/h in the belief that roads authorities and the SES will guarantee that roads will be kept clear.
  2. As noted above the emergency services may control the response to a risk but they do not control the risk. They do not control, nor are they responsible for, the fire, flood or storm.
  3. The SES and the other emergency services have the resources and powers that they have ‘in the public interest’. When responding to a flood the SES has many competing interests and may seek to protect the central business district of a town in order to allow the economy to resume after the event.  Making those choices may mean private homes are left unprotected or at least unassisted.  If there was a duty to each property owner to protect their property, then it would be impossible to meet the duty owed to everyone.  This issue is particularly important for fire brigades who move to extinguish a fire in order to stop it spreading for the public good rather than to protect the interest of the person whose property is on fire.

Conclusion

The decision in Ibrahimi v Commonwealth of Australia [2018] NSWCA 321 is long and complex and no doubt this post has not done it justice.  However in essence it confirms the law from other cases (such as Stuart v Kirkland Veenstra (2009) 237 CLR 215 and Graham Barclay Oysters v Ryan (2002) 211 CLR 540) that government authorities do not have legal duties to prevent harms to others or to rescue them.

Governments make choices on what services they provide and how they respond to demands on public resources.  The legal obligation is not to increase risk to others, not to take steps to protect people from their own decisions.