The mantra is Prevent, Prepare, Respond and Recovery. Preventing an emergency is better than responding to one; but equally we want resilient communities where individuals and communities take responsibility for managing their own risk.  But that still leaves the emergency services to respond if and when the residual risk manifests.   So where does the role of the emergency services sit when it comes to ‘prevent’?  That is the essence of today’s question that comes from Adelaide.  My correspondent has noticed:

A large tree is growing in one of the private residences, right on the edge, literally, of a lane – there is no footpath.  This tree has a diameter at the base of abut 1.5 metres and a height of, maybe, 30 to 40 metres – I.e. a ‘significant’ tree.  A broken branch was lying across two other branches at a height of 15 to 20 metres.  The butt of the branch was about a metre into the lane on the tree side and the branch extended across the lane and finished about 2 to 3 metres over the first-floor open car park area of a business on the other side.  It had been there for some time because the leaves were dead.

I advised the resident in the house and she said that she would inform the owner (she is renting).  I advised the business on the other side and the receptionist said that she would notify the council, which I had intended to do, as well.

As an SES volunteer, I also called it in to the SES reporting line.  In Adelaide, these calls go the MFS call centre.  After I explained the situation, the call-taker said that it was not their responsibility; it was the responsibility of the land-owner.  I knew that it was too high for SES to handle, but the MFS has aerial units that would reach it and I thought that they may respond.

I suspect that it is the responsibility of the land-owner, but is this the case?  Would it constitute enough of a risk for emergency services to be involved?

The problem is, in essence, that the emergency services legislation says very little about what the emergency services do. It may be axiomatic that fire brigades respond to fires so if there is a fire everyone knows that it’s the fire service job. And the fire brigades have specific duties and powers with respect to preventing fires (see Fire And Emergency Services Act 2005 (SA) ss 71-95A and ss 105A-105K (relating to the Country Fire Service)).  But for other hazards the issues are not so clear.

The South Australian State Emergency Service has a number of functions relating to dealing with emergencies, including ‘to assist the State Co-ordinator, in accordance with the State Emergency Management Plan, in carrying out prevention, preparedness, response or recovery operations under the Emergency Management Act 2004’ (s 108(1)(b); emphasis added); and ‘to deal with any emergency— (i) where the emergency is caused by flood or storm damage’ (s 108(1)(d)).

Emergency is defined (s 3) as:

… an event (whether occurring in the State, outside the State or in and outside the State) that causes, or threatens to cause—

(a)  the death of, or injury or other damage to the health of, any person; or

(b)  the destruction of, or damage to, any property; or

(c)   a disruption to essential services or to services usually enjoyed by the community; or

(d)  harm to the environment, or to flora or fauna;

A dead tree limb hanging over a lane threatens to cause death or injury should it fall on someone, may damage property and would certainly disrupt ‘services usually enjoyed by the community’ if it fell and blocked the lane.

If this lane was moved to New South Wales, the NSW State Emergency Service is to ‘to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis’ (State Emergency Service Act 1989 (NSW) s 8(1)(aa)).  Removing a dead limb that, if it falls during a storm, may cause injury and would block a road would ‘protect persons from dangers to their safety and health’.  But I don’t think anyone would seriously expect that the SES in either SA or NSW would respond to this job.

The answer is however that there is no clear legislated line.  It would be quite consistent with the Act for the services to see a hazard and seek to remove it but there does have to be a line.  The SES are not going to clean someone’s gutters as that will reduce the risk of damage due to storm; nor are the fire brigades going to check domestic electricity installations as that will prevent fire and every adopts the PPRR mantra.   The line is drawn in effect by the emergency services.  They have been created by government with a broad range of functions and it is then up to the Chief Officers to determine what they do and what they do not do.

They only have limited resources and have to ensure that they can do what is clearly their role which is ‘respond’ to the emergency.  This reasoning in part explains why, as has been said here before, there is no legal duty on the emergency services to respond and why the allocation of resources by government to agencies such as the SES and then within the SES cannot be challenged in court.  If the Chief Officer assigns the bulk of the budget to response, some to community education and none to removing obvious hazards from trees across public lanes, that cannot be challenged in court.  That is his or her call as to how the service is to operate.

What follows is that, in my view, it would not be inconsistent with the Fire and Emergency Services Act 2005 (SA) for either the Metropolitan Fire Service or the South Australian State Emergency Service to respond to this notification of a threat to life and property.  There is nothing in the Act to say that they must attend, and nothing to say they must not.  It’s really up to them to decide how they allocate their resources.

Even if the tree limb fell it’s not clearly anyone’s responsibility.  Council own the lane and like any landowner can chose to call the emergency services or not.  If there is a person trapped under the tree then it’s going to trigger an emergency response but if it’s just on the road, the council, the owner, a bystander or the SES may choose to remove it.  If it fell on a person or car it would be impossible to sheet legal responsibility to the emergency services for failing to remove it when they knew of it (see No duty to prevent a disaster and no duty to rescue (December 26, 2018) and see also State of NSW v Tyszyk [2008] NSWCA 107 discussed in NSW Police owed no duty of care to the family of fatal accident victim (December 1, 2017)).

Legal responsibility for the tree, in terms of who will have to pay if it does fall and cause injury or damage, is the tree owner – see Liability for dangerous trees (April 28, 2015).