In light of the recent flooding in Townsville I’m asked:

How are the spontaneous volunteers helping before, during or after an emergencies or disasters covered by insurance, under legislation or other laws?

This is a big question that we can only touch the service here.  The status of management of spontaneous volunteers is a growing issue and the subject of research – see, for example, the Bushfire and Natural Hazards CRC Research Project ‘Out of uniform: building community resilience through non-traditional emergency volunteering’.

Spontaneous volunteers

Spontaneous volunteers are those that step up in an event to offer what assistance they can but were not, before the event, members of any organisation that was training for and intending to take part in an emergency response.  Spontaneous volunteering can take many forms including:

1. Those that step up and help their neighbour;
2. Those that step up and create their own NGO out of need – think Queensland Mud Army, Christchurch Student Army, Tasmania’s ‘Can we help’, Blazeaid etc (some of which go onto to become substantial and long-running aid agencies); or
3. Those that turn up to work with an established emergency service eg those that are now being recruited by NSW SES to help fill sandbags etc but have never formally ‘joined’ the SES.

Insurance

Insurance is a contract between the insured (the first party) and the insurance company (the second party).   It is in effect a gamble.  If I pay an insurer a premium (say for the sake of round numbers, $1000) then I’m betting that the risk that I’m insuring will happen. Again, for the sake of round numbers, let’s assume the agreed value of my house is $1,000,000.

In that case when I pay my $1000 premium, I’m betting with my insurer that my house will burn down or be otherwise destroyed.  If I’m wrong, then the insurer gets to keep my premium. If I’m right the insurer pays me $1m, that’s a payout of $1000:1.   The insurance company gets premiums from many, many people and most of them will be wrong, in any given year their house won’t be destroyed.  From those premiums the insurance company makes enough profit to give a return to its shareholders as well as have money in cash and investments to be able to pay out to those few insurance holders who do lose their home.

The critical point is that insurance is a contract between the insured and the insurer and the insurer pays out when the risk that they guaranteed to cover – that they accepted the bet on – happens.

There are two sorts of insurance.  First party and third party.  First party insurance means I’ve taken out a policy to cover risk to me.  Insurance on my house, insuring my car against theft or damage, income protection and health insurance are all examples of first party insurance.  If the ‘bad’ thing happens to me I make a claim on my insurance policy and the insurer pays out to me.

Third party insurance covers my liability to someone else.  There is compulsory third party insurance when I register my car, an employer has to have workers’ compensation insurance to meet the employer’s liability to injured workers, home insurance comes with insurance to meet claims of people injured on your property. The difference here is that if someone makes a claim against me, I claim on my insurance policy and my insurer stands in my place.  The insurer can settle or defend the claim, and they pay out if I am legally liable.  The person making the claim is not claiming on my insurance, they are claiming against me and I am claiming against my insurance.  That will be relevant in the context of the question ‘How are the spontaneous volunteers … covered by insurance?’.

Volunteers that step up and help their neighbour

Assume there is a street that goes up a hill.  A flood affects the house at the bottom of the street (number 2) but not the neighbouring house (number 4) that is further up the hill.  The resident in number 4 goes into number 2 to help with them clean up.  This might happen if the house is one of 1000 affected or if it’s the only house affected.  It might happen if the flood is due to a rising river, or a burst water pipe in the wall.  This is just one neighbour going to help another.  Are they covered by insurance?

We have to stop and ask: ‘what risk are we considering?’ In this context the biggest risk is injury.  The neighbour from number 4 is covered by insurance if they have relevant first party insurance, eg health insurance, accident insurance, income protection insurance.

If they are injured due to the negligence of the owner of number 2 they could sue that person.  If number 2 has relevant insurance then the insurer will take responsibility for the claim and either settle it or defend it.  As discussed above, the neighbour from number 4 is not claiming on that insurance policy as they are not a party to it.  The neighbour from number 4 is not ‘covered’ by that insurance, the resident at number 2 is.  Insurance does not however determine liability, number 4 can sue number 2 whether number 2 has insurance or not.  If number 2 has insurance, their insurer manages and meets the claim. If number 2 does not have insurance, they have to meet the claim themselves (but number 4 probably wouldn’t bother as there is little point suing people who are not insured).

Those that step up and create their own NGO out of need.

Here the issue becomes more complex simply because the nature of these organisations and what they end up doing can vary so much with the need.  There is also another potential risk, that is the risk that a volunteer will do some harm at the place they are volunteering (either accidentally or maliciously) or that they will be accused of doing harm (they are different risks).

It is however unlikely that any organisation that has just sprung up out of need will have any insurance in which case the answer is the same as the situation for volunteers that step up and help their neighbour.

Where a person has suffered harm and believes it was caused by the volunteer they may look to the organisation for relief but that would be very difficult.  First it would depend on what role they were playing.  If, for example, the organisation operated a website where people who wanted assistance could list what they needed and people who wanted to help could then offer to meet that request, the organisation is in no way asserting that the volunteer is competent or reliable or the place that they are going is safe and the person seeking assistance is reliable.  To the extent one has a duty of care it’s a duty to do what you said you would do with reasonable care, not a duty to do something you clearly weren’t doing.

One can see therefore that the potential to ‘claim’ against the organisation will depend very much on what it is they were doing.   Again the presence, or absence, of insurance does not determine whether there is liability but again trying to sue a spontaneous group that does not have insurance and probably does not owe a duty of care to anyone would be a waste of time and money.

Those that turn up to work with an established emergency service or other organisation used to dealing with volunteers

Volunteers that assist organisations that use volunteers will be incorporated into that organisation.  That may be an SES, a council or even a volunteer management group eg Volunteering Queensland.  These organisations will no doubt have insurance (or in the case of government agencies will be covered by the governments self-insurance arrangements). These policies would be expected to provide some protection for volunteers that are injured and also some legal representation if claims are made against the volunteers or the agency due to some alleged misconduct (intentional or accidental) by the volunteer.

In the emergency service context, there are legislative provisions that impact upon the status of volunteers in most states and territories. Taking New South Wales as an example, the State Emergency Service Act 1989 (NSW) s 25 extends a protection from personal liability to a ‘casual volunteer’ that is ‘a person who, with the consent of the member or officer, assists a member of the State Emergency Service or an emergency officer in the exercise of the Service’s functions’.  The Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) provides workers compensation type insurance to members of the Rural Fire Service, the State Emergency Service and to any person ‘who, in the opinion of the Self Insurance Corporation having regard to all the circumstances, should be deemed to be an emergency service worker for the purposes of this Part’.  That would extend, in my view, to SES casual volunteers.

Every state and territory has legislation to provide protection from civil liability for volunteers and that would include all volunteers, whether they joined up this morning or many years ago.  In all states other than NSW, the legislation says that even though the volunteer is not liable for any mistake, the organisation they volunteer for is.  In that case if there is an allegation that the volunteer did some damage the organisation will have to manage that and the organisation’s insurer (if there is one) will meet the claim.  That may feel, to the volunteer, that they are protected or covered by the organisations’ insurance but that’s not quite the correct way to see it.  It’s not that they are covered by ‘insurance’, they are not liable, the organisation is and it is the organisation that is covered by insurance.  If there is no insurance, it’s still not the volunteer who is liable.

Regardless of the legislation, when a person is volunteering under the direction and control of an agency like a State Emergency Service or fire service, they are not representing themselves.  They are doing the work of that service, whether they are formally a member or not. The organisation will be vicariously liable for any negligent (but not criminal) damage they cause.

In the absence of a statutory compensation scheme such as that in the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW), or required by the Fire and Emergency Services Act 1990 (Qld) s 154C (Commissioner to insure SES members etc.) an agency will only be liable to compensate a volunteer if the volunteer can show that their injury was caused by the agencies negligence.

Even if they are not required to have insurance, there may well be many cases where organisations do have ‘third party’ insurance that does offer a no-fault benefit.   A volunteer organisation may have a workers’ compensation type insurance policy to pay out benefits to injured volunteers without need for that volunteer to prove any negligence (see for example Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 14 Rural fire brigade member; s 15 Volunteer firefighter or volunteer fire warden; s 17 Honorary ambulance officers; s 18 Person in voluntary or honorary position with religious, charitable or benevolent organisation; s 19 Person in voluntary or honorary position with non-profit organisation). Non-government agencies would not be required to do that so I can’t say that such a policy exists, or does not exist, but in most large organisations and any government organisation you would expect that would indeed be the case.

Conclusion

There is no simple answer to the question:

How are the spontaneous volunteers helping before, during or after an emergencies or disasters covered by insurance, under legislation or other laws?

It depends (as it always does) on what state they are in.  It also depends on the nature of their volunteering and the sort of risk that is being considered.  Fundamentally how people are covered by insurance depends firstly on whether there is insurance and then on the terms of that insurance – what risks in what circumstances.

If the question means how are they covered for compensation for injuries that is in fact quite a different question.  Again it depends on the state or territory. In NSW there is a statutory scheme to cover emergency service volunteers, in Queensland agencies like the SES are required to take out a workers compensation insurance and other agenices may chose to do so.  If a person is volunteering with an agency like that then they will have the benefit of that insurance.  If they are simply helping their neighbour then they won’t.

If the risk that you are concerned about is a risk that volunteers will be liable for honest errors made during their volunteering, those that are volunteering with and as part of the response of a community organisation will be protected by volunteer protection legislation in each state and territory. Again, those that are just helping their neighbours will not have that.

But that should not stop people helping the neighbours.  We all do things every day including helping friends and neighbours without worrying about whether or not we’re insured.  The risk of getting sued is no-existent.  The risk of getting injured whilst helping in a fire or flood may be higher but a volunteer should think about that, not insurance, when deciding to help.  Wear proper footwear and gloves, and go for it.