Today’s correspondent is a trainer who trains
… employees of clients on how to be fire wardens so to coordinate an emergency evacuation or to respond to an emergency in their workplace under AS3745:2010. Indemnity from prosecution under the standard refers people onto their insurance provider, question is… are fire wardens being volunteer workers trained to respond to an emergency or coordinate an evacuation of the workplace, considered good Samaritans under the Civil Liability Act? Are fire wardens protected from prosecution under any other law if they acted with reasonable measure doing their best in an emergency?
The answer to those questions is ‘no’.
A good Samaritan under the legislation in each state and territory (other than Queensland) is someone who steps up to provide emergency first aid or medical care or in many states, ‘any other form of assistance to a person whose life or safety is endangered in a situation of emergency’ (to quote the WA Act); see
- Civil Laws (Wrongs) Act 2002 (ACT) s 5;
- Civil Liability Act 2002 (NSW) s 56;
- Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 8;
- Civil Liability Act 1936 (SA) s 74;
- Civil Liability Act 2002 (Tas) s 35B;
- Wrongs Act 1958 (Vic) s 31B;
- Civil Liability Act 2002 (WA) s 5AB.
I think in most cases a bystander who saw a building was on fire and ran in to the building to notify the occupants and assisted them to evacuate even though no one was injured would meet the definition of a good Samaritan, and most people would expect that they should be considered good Samaritans. I will therefore assume, for the sake of the argument, that in every case the definition does in include that behaviour.
So are fire wardens good Samaritans? The answer is ‘no’ because they are doing the task as part of their job, even if they don’t get paid extra for it. It is the person conducting the business or undertaking’s responsibility to have emergency procedures and he or she can only do that by using the staff of the undertaking. They are not acting as ‘good Samaritans’ – that is as a volunteer who steps out of the crowd with no obligation and not expectation – rather they are at work.
As for prosecution I suspect that’s the wrong word. One gets prosecuted for criminal conduct and I cannot imagine what crime my correspondent has in mind. If one means civil liability (given the references to the Civil Liability Acts) then one has to consider the question of ‘liability for what?’
The law of negligence only sees someone liable for failing to act reasonably in the circumstances. Further (Leishman v Thomas (1958) 75 WN (NSW) 173 at p. 175):
[A] man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called “agony of the moment”, he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise.
If the warden ‘acted with reasonable measure doing their best in an emergency’ then there is no negligence so no liability.
In any event, a worker who is the workplace fire warden will not be liable for any negligence, his or her employer will be – see Vicarious liability for the actions of fire wardens (March 5, 2016) see also all the posts on vicarious liability – https://emergencylaw.wordpress.com/?s=vicarious+liability
The fact that I’m asked this question by a trainer implies that students are still asking ‘will I be sued if …’ If we look at all the cases where fire wardens have been sued we find … none. Of course they won’t be sued. What could they possibly do that would make the situation worse? Deliberate or criminal misconduct excepted, there is no risk of liability, not because there is some ‘immunity’ but because the law of negligence doesn’t impose liability on everyone if there is a bad outcome. It’s more nuanced than that. In any event they are employees and their employer will be liable if there is any negligence.