Today’s correspondent is a volunteer with NSW RFS who has
… been looking into purchasing a ‘wildfire’ helmet. I have been stopped by my Brigade Captain on grounds that if I have an accident whilst wearing a helmet not issued by the RFS it may stop my compo. My question is, if the RFS know that helmets have an expiry date of 3 years from manufacture or if it is recorded 3 years from issue who is responsible when RFS members wear helmets that have expire on the fire ground. It has been 3 years since the new style of helmet was introduced so all fire fighter should have the new style of helmet. And there are plenty out there that don’t. Further to my question will wearing a helmet that is past its use by date will this affect compensation if an accident occurs.
The simple answer is ‘no’; but we can add more detail.
Compensation for rural firefighters is governed by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW), the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The essence of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act is to bring rural fire service volunteers (and others) into the workers compensation scheme even though they are volunteers, not employees. It is the other two Acts that govern how compensation is paid and determined.
Workers compensation is a no-fault scheme. It doesn’t require an injured person to prove fault by someone else and equally, as it is no fault, there is no discount for the worker’s contribution to their own injuries. A firefighter is entitled to compensation if he or she is injured ‘in the course of fighting a bush fire…’ (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 7(1)). The question is not ‘what sort of helmet was the firefighter wearing?’
The first thing then is to ask what injury happened and why? A firefighter can be injured in many ways where the helmet they are wearing is irrelevant. If they are wearing a non-standard helmet and break their leg, the issue must be irrelevant. The issue could only arise if they had a head injury and the issue of the helmet might arise, but that won’t affect an entitlement to compensation. Compensation is no fault.
Work Health and Safety Law
The issue may arise under Work Health and Safety law. What helmet to wear is first and foremost a matter for the RFS. The RFS has the primary duty to ensure the health and safety of its workforce, including volunteers (Work Health and Safety Act 2011 (NSW) s 19). To do that they need to conduct a risk assessment (s 18) and in doing that make a choice for PPE that best responds to the risk (Work Health and Safety Regulation 2017 (NSW) r 44(3).
Under the Work Health and Safety Act 2011 (NSW) a worker (which includes a volunteer (s 7) must (ss 28 and 34):
(a) take reasonable care for his or her own health and safety, and
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and
(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and
(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
Part of that obligation includes (r 46):
The worker must, so far as the worker is reasonably able, use or wear the equipment in accordance with any information, training or reasonable instruction by the person conducting the business or undertaking.
The problem for the RFS is that they cannot assess every piece of equipment on the market so they make an assessment and choice of what equipment they will supply and they issue that to members along with a direction not to use other equipment as they cannot know whether the equipment an individual wants to buy actually addresses the risks assessed by the RFS. A member may think their metal lined cap is equivalent to an RFS helmet but that does not make it so. Clearly in order to protect itself the RFS has to issue Personal Protective Equipment (PPE) and direct members not to use non-approved PPE. Failure to wear approved PPE may be an offence under s 28(c).
On the other hand, the RFS will direct that people wear helmets and wearing a non-RFS helmet is better than wearing nothing so wearing a non-approved helmet may be a firefighter taking ‘reasonable care for his or her own health and safety’.
What it will really come down to is wearing the non-approved helmet does expose the firefighter to risk. Wearing a genuinely effective helmet does not expose the firefighter to any greater risk than wearing an RFS issued helmet so it would be hard to see how that exposes the firefighter to a risk to his or her health or safety. Wearing a tin lined cap on the other hand, would mean the firefighter is exposed to risk regardless of what the firefighter believes.
As for the claim that ‘helmets have an expiry date of 3 years from manufacture’ and the question of ‘who is responsible when RFS members wear helmets that have expire[d] on the fire ground [and] …will wearing a helmet that is past its use by date will this affect compensation if an accident occurs’? The answer is that the RFS is responsible for the issue of that PPE and no, wearing a helmet that is past its use by date will not affect compensation if an accident occurs. Again, it’s a question of risk assessment. Why does the manufacturer say there’s a three-year limit? What risk are they measuring? The RFS is entitled to do a risk assessment and consider what is the likelihood that the helmet will fail to provide adequate protection, ‘the availability and suitability of ways to eliminate or minimise the risk’ including ‘the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk’ (s 18).
Threats that wearing non-approved PPE will affect compensation are misguided where what we are talking about is no-fault workers compensation.
The true legal issues arise under Work Health and Safety Law. There the real issue is whether the equipment used increases the risk to workers.
For related posts, see:
- Non approved PPE, the NSW RFS & Work Health and Safety (November 22, 2014); and
- ‘Altering’ or ‘damaging’ NSW RFS PPE (October 9, 2018).