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
Conclusion
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.
Australian Emergency Law 
Thanks Michael, a great explanation.
Thanks for the post, I’m not disputing your conclusion.
But, just to answer your question:
“What could they possibly do that would make the situation worse?”
In a high rise; evacuate the floors more than two floors above the fire first; leaving no room in the fire escape stairs for those who are immediately at risk to evacuate.
In any emergency, guide evacuees to a less safe evacuation path where two or more are available.
In any emergency, not initiate evacuation when necessary. (Given that the presence of fire wardens inhibits people’s tendency to evacuate until the are instructed)
Thank you “South Of Melbourne” for those comments and you’ve made me think of an issue I hadn’t addressed. When I answered the question in this post I was thinking of those people identified by my correspondent as employees. I was not thinking of say residential high-rise buildings where residents may volunteer to act as fire wardens. Assuming that does happen then the fire wardens are not employees but they still represent the owners corporation and their fellow residents so there could be an argument for liability to attach to the owners corporation/body corporate.
I would also think that where they have agreed to take on the role for no financial or other benefit then, except in Queensland and the Australian Capital Territory, they may be considered a good Samaritan under the relevant state and territory legislation.
I think that a citizen fire warden would not owe a common law of duty of care to the people in the building. They are taking on the role as a service to their fellow residents and that would not give rise to a duty of care. If a person was injured it would be due to the fire or emergency and if that was negligently caused liability for the injuries would fall to whoever was liable for the fire, not to the warden. It also has to be remembered that my correspondent assumed that the wardens ‘acted with reasonable measure doing their best in an emergency’ and that can be true even if the decisions turn out to be less than ideal.
My view is that even in those circumstances, the resident fire warden (if there are such people) would still face no risk of liability as there would not be a common law duty of care and in the circumstances there would be no chance of proving negligence.
I have had this conversation with lawyers at my old place of business and we came to the same conclusion that they would be covered by normal working arrangements and insurances. The only place they would open themselves up to liability, is if they deviated from the organisations policy and training.
They still won’t open themselves to liability “if they deviated from the organisations policy and training” unless it was so extreme that they were not even attempting to perform their duties, that is were off on a “frolic of their own”. Deviation from the organisations policy and training may demostrate an employees negligence but if that also relieved the employer of vicarious liability it would mean vicarious liability only applied if there was no negligence which would make the concept meaningless.
Ok question then, if during an evacuation parties thought it was safer to not stay in the designated evac area……then something happened to them because of that who is at fault?
One cannot answer such a wide question – what sort of something do you have in mind? If they get hit by a car that is being driven negligently then it’s the driver who is at fault. If they trip and twist their ankle no-one is at fault.
Critically fire wardens and generally speaking no-one has the power to compel a person to remain anywhere. Fire brigades and/or police have some powers to compel people to remain when decontamination is required but that is not what we are talking about. If I evacuate a building and chose not to go, or chose to leave, the designated evacuation area (or what I assume is the assembly area) that is my choice. If anyone were to try to stop me that would, in effect, be an arrest. An arrest occurs when a person is led to believe they are no longer free to go about their business (Eburn and Hayes Criminal Law and Procedure in NSW (5th ed, 2016, Chapter 11)). Fire wardens do not have a power to arrest a person to compel them to remain in the assembly area.
In Stuart v Kirkland-Veenstra [2009] HCA 15, Justices Crennan and Kiefel said (at [127]):
“The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm… The law draws a distinction between the creation of, or the material increase of, a risk of harm to another person and the failure to prevent something one has not brought about… So far as concerns situations brought about by the action of the person at risk, it is the general view of the common law that such persons should take responsibility for their own actions. In this, English law has been seen to have an affinity with Roman law, in its reluctance to interfere or to encourage interference with the freedom of the individual.”
If a person does chose to leave an area and somehow by doing so exposes themselves to some risk that is their own lookout.
Thank you that was a good answer seeing as I am being taken to town for not stopping the person leaving the area