Since then there have been 1005 posts; a total of 1,263,133 words. The average word count has grown from 573 per post in 2009 to a maximum average of 1396 in 2017. In both 2009 and 2010 I wrote 14 posts a year which is an average of 1.166 per month. In 2018 there were 195 posts, or 16.25 per month!
5479 people follow this blog via email, WordPress, Facebook, Twitter and/or LinkedIn. There have been 566,724 visitors to the blog and they have viewed 1,083,016 pages. There has been 2,951 comments from readers, growing from 58 in 2009 to 500 in 2018. (There have been a further 104,017 spam comments that have been blocked by the site software).
And in 2018 the blog was ranked number 3 in the Top 25 Australia Law Blogs and Websites For Australian Lawyers!
What does the blog show about the risk of being sued?
There is a perception that people and emergency services are at constant risk of being sued. That there have been legal actions shows that there is a risk of litigation but only one of the cases saw the state, as operator of an emergency service, liable. And in no cases was an individual firefighter, paramedic or rescue officer sued. In the ten years I have been writing this blog I have reported on:
- No cases where a ‘good Samaritan’ has been sued for rendering assistance at an emergency;
- No cases where an SES has been sued over alleged negligence in response to a flood or other emergency;
- No cases where an Australia fire service has been successfully sued over alleged negligence in response to a fire or other emergency; and
- One case – Roane-Spray v State of Queensland  QDC 348 – where an Ambulance Service (or more accurately, the State) has been liable for injuries to a patient (see State of Queensland STILL liable for paramedic negligence (October 25, 2017)).
With respect to the fire services even though there has been no finding of negligence there have been several attempts including litigation from the Warragamba fire of 2001, the Canberra fires of 2003 and the Black Saturday fires of 2009. See:
- ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires (November 3, 2014);
- Queensland Fire and Rescue not liable after factory fire (October 3, 2014);
- Myer Stores Ltd v State Fire Commission TASSC 54 (August 24, 2012);
- Warragamba Winery Pty Ltd v State of New South Wales  NSWSC 701 (July 19, 2012).
The litigation over the black Saturday fires all settled without a court determining if there has been negligence – see the cases listed here https://emergencylaw.wordpress.com/?s=black+saturday
With respect to floods, the class action over the 2011 Queensland floods is ongoing – see:
- Litigation over 2011 Queensland Floods continues (November 9, 2014); and
- Maurice Blackburn, lawyers, Queensland floods class action.
(With respect to protection from storm damage there was a case decided in 2003 (ie before the blog) that involved police, not the SES – see the discussion of State of NSW v Tyszyk  NSWCA 107 in NSW Police owed no duty of care to the family of fatal accident victim (December 1, 2017)).
Apart from Roane-Spray v State of Queensland  QDC 348 there have been actions against ambulance services that have resulted in a verdict in favour of the ambulance service – see:
- Queensland Ambulance not negligent in treatment of patient’s extreme asthma (July 25, 2018); and
- Ambulance Service v Neal (29 January 2009).
With respect to rescue there has been two cases; one of which resulted in a verdict for the defendant – see No duty to prevent a disaster and no duty to rescue (December 26, 2018). The second case has been remitted to the District Court of NSW and I don’t know if the matter is ongoing or has settled – Do police, undertaking body recovery at a motor vehicle accident, owe a duty of care to the victim’s family? (October 4, 2018). (There is a third case but again it was decided before 2009 – see the discussion of NSW v Brown  NSWCA 21 in NSW Police owed no duty of care to the family of fatal accident victim (December 1, 2017)).
When one puts that into context and considers how many fires, floods and other emergencies the fire, rescue and ambulance services have responded to in the last 10 years the one can conclude that the risk of being sued is very low and the risk of being found liable, even lower.
Individuals are however criminally liable or at least have been charged. See for example:
- Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017);
- NT police officer gaoled for failing to render assistance (October 31, 2016);
- Victoria SES Commander guilty of an offence, but no conviction recorded (April 22, 2014);
- Victorian Police officer charged with reckless driving (January 30, 2014)
- West Australian police officer charged (June 15, 2012
- Suspended jail sentence for firefighter involved in a fatal accident (October 24, 2009)
And for prosecution of a service see
What else have we learned?
Without looking at statistics it is my perception that three key issues have been recurring over the ten years. Although there have been no legal developments specifically on point (ie no dramatic changes to legislation or new cases) I think we have learned:
- You can not put red/blue lights and/or a siren on your private car just because you think it’s a good idea;
- There is no right to privacy – people can photograph whatever they can see from a public space; and
- If you have the skills to save a life you should use them, save only where proposed treatment is contrary to the patient’s known and communicated wishes.
Most significant legal developments
The most significant outcome of the legal processes over the ten years has been the consistent finding from the courts that people and the emergency services are not under a duty to rescue or protect people from harm. Their duty is to not make things worse; not to make things better. So if there is a failure to rescue or a fire is not controlled that does not lead to legal liability. From a lawyers point of view that has been a consistent development and application of doctrine but the need for a legal background to understand the complexity and nuance of that simple statement makes it, perhaps, more interesting for lawyers and less interesting from the point of view of responders.
From the responder’s point of view, I think the two most important developments (in reverse order) were:
- The prosecution of a NSW RFS volunteer for dangerous driving causing death. This case did not represent new law or even the development of law, but it did bring (or should have brought) home to volunteers where real legal risk lies and that they are bound by law as much as anyone. Whatever rights and privileges the emergency services enjoy they have because there is law to that effect, not because they are in a special extra-legal position. This prosecution demonstrated more than any theoretical discussion could, how the law and the legal system works and applies to volunteers and emergency services.
- The registration of paramedics under the Health Practitioner Regulation National Law. It is my prediction that, depending on the push by paramedics and those willing to take an entrepreneurial approach, registration could lead to a major shift in how ambulance services including emergency ambulance, and event health services will be provided. It could be a dramatically different land scape that will impact upon many currently in the industry including jurisdictional ambulance services and volunteer event health service providers. How everyone negotiates that new space will be very interesting to watch.
It’s been an increasingly busy 10 years but that’s not because there’s been a dramatic rise in law and legal consequences for the emergency services. Rather I think it is because as the blog’s popularity has grown I’m asked more questions so that is a large source of the growing number of posts.
Second is changing technology. Even 10 years ago it was harder to find cases and lawyers only got access to the reported cases. As internet publishing has grown I am not limited to the Canberra Times so I get news stories from across Australia arriving in my inbox, and computer assisted legal research means cases are also delivered meaning that cases that, at one time, would have been lost in the mass of judicial decisions, come to my attention and can be reported here. Who knows how changes in the next 10 years will impact upon what we can discover and report.
I thank all the readers for taking the time to read what I have written, I thank (most) contributors for their reasonable and (usually) polite comments and I thank all the members of the emergency services for their service. I value the opportunity to contribute to your work and your helpful and kind feedback. I look forward to continuing my service in this ‘back room’ for the next few, if not 10, years.
I also acknowledge and thank the Australian National University College of Law and the Bushfire and Natural Hazards Cooperative Research Centre for their support of my work and therefore this blog.