This post is a report on the decision of the UK Supreme Court in Poole Borough Council v GN [2019] UKSC 25. As a decision of the UK Supreme Court the case is not ‘binding’ in Australia but it is likely to be persuasive. Further the case is not about an emergency service but about a council’s duty (if any) to protect council’s vulnerable tenants from anti-social behaviour from their neighbours. Even though the case is not about emergency services it is about the liability of public authorities in negligence.
In Australia all the state fire brigades and state emergency services, and nearly all the ambulance services are public authorities created by legislation. The reasoning of Lord Reed (with whom Lady Hale, Lord Wilson, Lord Hodge and Lady Black agreed) will have application to those services. This blog has reported on many cases where people have attempted to sue fire brigades for negligence in response to a fire, and all have lost. This case confirms the difficulty in such an action.
At [28] His Honour said (case references omitted):
Like private individuals, public bodies did not generally owe a duty of care to confer benefits on individuals, for example by protecting them from harm. In this context I am intentionally drawing a distinction between causing harm (making things worse) and failing to confer a benefit (not making things better), rather than the more traditional distinction between acts and omissions… As in the case of private individuals, however, a duty to protect from harm, or to confer some other benefit, might arise in particular circumstances, as for example where the public body had created the source of danger or had assumed responsibility to protect the claimant from harm…
That simple statement, in my view, has implications for the emergency services and in particular fire brigades. There is often concern, reported to me, that members of the services fear that they or their service will be liable if harm comes to someone from the hazard they are established to respond to (fires for fire brigades, floods and storms for the SES). The common law in both the UK and Australia does not say however that there is a duty on the emergency services to ensure that no harm comes to people.
As fire brigades do not start most fires, they are not under a duty to ensure that no-one is harmed by fire. Further fire brigades to not assume a ‘responsibility to protect the claimant from harm…’ The whole message from fire brigades particularly rural or bush fire brigades is that you cannot depend upon them to save you from fire. A fire brigade when it responds to a fire is actually trying to stop the fire from spreading, not to protect those whose property is already on fire. Further fire brigades don’t ‘protect a claimant from harm’ from fire. If they did it would be fire brigades that would be responsible for all the hazard reduction activities, the installation of smoke alarms etc. Fire brigades are there for the benefit of the community writ large, not even those individuals facing imminent loss from fire (Capital and Counties v Hampshire Council [1997] QB 2004; Warragamba Winery v NSW[2012] NSWSC 701; Electro Optics and West v NSW [2012] ACTSC 184; Myer Stores v State Fire Commissioner (Tasmania) [2012] TASSC 54; Hamcor Pty Ltd v State of Qld [2014] QSC 224; Stuart v Kirkland-Veenstra [2009] HCA 15).
Sometimes fire brigades do create a danger – such as when starting a hazard reduction burn (as opposed to a back burn that is itself a fire fighting operation) or when exercising other functions. In Poole Borough Council v GNLord Reed said (at [27]):
… as Lord Reid explained in Dorset Yacht Co Ltd v Home Office … a person performing a statutory duty was liable for an act which, but for the statute, would be actionable at common law, if he performed the act carelessly so as to cause needless damage. His liability arose because the defence which the statute provided extended only to the careful performance of the act. The rationale, Lord Reid explained, was that:
Parliament deems it to be in the public interest that things otherwise unjustifiable should be done, and that those who do such things with due care should be immune from liability to persons who may suffer thereby. But Parliament cannot reasonably be supposed to have licensed those who do such things to act negligently in disregard of the interests of others so as to cause them needless damage.
An example may be the power of a fire brigade to knock down a wall or building made dangerous by fire. In Vaughan v Webb (1902) 2 SR (NSW) 293 the defendant firefighter negligently, but in good faith, pulled down a wall causing damage to another property. The court held that ‘good faith’ was no a defence to negligence so that although the defendant had the power to knock down the wall he was expected do so with reasonable care so as to avoid unnecessary damage to neighbouring properties. Today, and in response to that case, all Australian fire brigade legislation provides that the members and brigades are not liable for acts done ‘in good faith’.
Lord Reed’s discussion continued:
… the position was not the same where Parliament conferred a discretion. If the discretion was exercised lawfully, then the act in question would be authorised by Parliament:
But there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred. The person purporting to exercise his discretion has acted in abuse or excess of his power. Parliament cannot be supposed to have granted immunity to persons who do.
This proposition is also reflected in Australian law. Fire brigades are not directed how to fight a fire. The officer in charge is given broad discretion to do all manner of things but the legislation does not direct him or her on how to fight the fire or set priorities. That position has been enshrined in legislation in New South Wales. In that state liability when exercising a special statutory power, such as those given to Fire Brigades, can only be established where ‘the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power’ (Civil Liability Act 2002 (NSW) s 43A).
I would suggest that similar reasoning would also apply to a State Emergency Service. In that context there has been questions about the obligation, and legal duty, of councils or an SES to close a road that is affected by flooding (and see the discussion in the Inquest into the deaths of Stephanie Jane King, Ella-Jane Kabealo and Jacob Matthew Kabealo reported in the post Two coroners inquests that may be of interest (May 21, 2019)). Relevantly in this case it was said (at [32]):
… the importance of the distinction between causing harm and failing to protect from harm, in the in the context of a highway authority’s alleged duty of care to provide warning signs on the road:
It is not sufficient that it might reasonably have foreseen that in the absence of such warnings, some road users might injure themselves or others. Reasonable foreseeability of physical injury is the standard criterion for determining the duty of care owed by people who undertake an activity which carries a risk of injury to others. But it is insufficient to justify the imposition of liability upon someone who simply does nothing: who neither creates the risk nor undertakes to do anything to avert it.
Lord Hoffman also emphasised the difficulty of finding that a statutory duty or power generated a common law duty of care, observing at para 32 that it was “difficult to imagine a case in which a common law duty can be founded simply upon the failure (however irrational) to provide some benefit which a public authority has power (or a public duty) to provide.”
In short the reasoning of this case is consistent with the proposition that an agency like a state emergency service, fire brigade or a police force does not owe a duty of care to an individual to protect that individual from harm where the brigade is not the cause of that harm – “public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm” ([65]).
Ambulance services are somewhat different because they do seek to provide care to individuals. Paramedics treating a person are treating that person for that person’s benefit. Further people have alternatives and may rely on an ambulance service to attend when they are advised that an ambulance is indeed on its way. The close relationship between a paramedic and patient will under normal principles of common law give rise to a duty of care and in those circumstances the paramedic is not usually exercising statutory powers. Ambulance services do owe a duty of care to the individuals they are called to assist – Kent v Griffiths [2001] QB 36.
Conclusion
As noted, the decision in Poole Borough Council v GN [2019] UKSC 25 was neither Australian nor about the emergency services. The relevance of that decision therefore requires an appreciation of the persuasive effect of superior international, and in particular UK decisions on Australian law and an appreciation of the ability to argue by analogy; to take the general principles of law and apply them in an analogous situation.
Doing that it is my view that this case is a useful review of the law of negligence as it applies to statutory authorities. It confirms that mere foresight that someone may suffer harm, coupled with statutory powers that may, if used, help prevent that harm does not give rise to a legal duty to prevent harm. The ultimate duty is not to make the situation worse, not to make it better. That position is different where the agency creates the risk of harm, but generally fire brigades do not light fires (but can be liable for escaped hazard reduction burns), and the SES never starts the storm or flood.
That result is, in my view, consistent with Australian law.
Australian Emergency Law 
Ambulance (in Victoria (can’t speak for other jurisdictions) is not an emergency service. It is not under the department of emergency services, but is under the health department.
They are an “essential service” which operates “emergency vehicles”.
I can recall many instances where ambulance officers have been personally subjected to litigation, which would not have been possible if they had the same legal protection as other services.
Sometimes it has been the result of a case where things went wrong, and an adverse outcome was confused with (and assumed to be) malpractice or negligence.
At other times officers have been taken to court because of injuries incurred by someone while assaulting those officers or when ignoring traffic lights & colliding with a marked emergency ambulance.
In many cases ASV have helped with legal costs. However it’s disappointing that legal defence is even necessary for officers doing their best to help others.
Dear Graeme
You say ‘Ambulance (in Victoria (can’t speak for other jurisdictions) is not an emergency service. It is not under the department of emergency services, but is under the health department.’ It’s true that in nearly every state and territory (I think ACT is the exception) ambulance services fall under the health portfolio. There is however no significance in that. There is no clear delineation between ‘emergency services’ and others, what is in issue is who they respond for and why. Fire brigades in particular respond to stop a fire spreading and are not there to protect the individual whose property is no fire. Ambulance services are indeed different, and I make that point in the post you are responding to. It’s not the portfolio they sit under that makes the difference, it’s the nature of the work they do. The implication that the impact on ambulance services would be different if they were in a different portfolio is not correct.
You then say:
I can recall many instances where ambulance officers have been personally subjected to litigation, which would not have been possible if they had the same legal protection as other services.
As noted above, it’s not the portfolio they sit under that makes the difference, it’s the nature of the work they do.
Second, and with due respect to your personal experience I very much doubt that what you are describing is true. The case law is notable for the absence of cases against ambulance officers and ambulance services. Of course, cases settle and cases in Magistrate’s courts are not easy to access but if there were ‘many instances where ambulance officers have been personally subjected to litigation’ that would appear in the case law and in the press. Again, there is a dearth of evidence to support that perception. You go on to say:
Sometimes it has been the result of a case where things went wrong, and an adverse outcome was confused with (and assumed to be) malpractice or negligence. At other times officers have been taken to court because of injuries incurred by someone while assaulting those officers or when ignoring traffic lights & colliding with a marked emergency ambulance.
That leads me to think that perhaps what you are talking about is that there may indeed be initial letters or concerns where paramedics are asked to explain what happened. And there may be cases where people who have been charged with offences such as ‘assault’ or driving matters raise, as part of their defence, the conduct of the paramedic.
If a person is charged with assault, they may argue that they were using reasonable force in self-defence which they are entitled to do. If that argument is raised it is up to the Crown, to prove beyond reasonable doubt, that this was not the case. That would require the paramedic to attend court and give evidence and be cross-examined as to what happened. The same would be true if a person collided with an ambulance but wanted to allege that the ambulance did not have its lights and sirens on, or the driver was not taking reasonable care hence the collision was the fault of the ambulance rather than them. Being a witness in a case is not the same as being the defendant in either a civil or criminal action. It is well known that the drivers of emergency vehicles, fire, police, SES and ambulance can be charged with traffic offences even when responding to emergencies. Ambulance services are in no different position to the other services in these contexts.
As I say, I would infer you are confusing being asked to explain conduct and to appear as a witness in cases even where the paramedic is the victim as being ‘personally subject to litigation’, when it is not. And in that respect the law for the emergency services (however defined) is no different for that of the ambulance services.
Finally, you say ‘However it’s disappointing that legal defence is even necessary for officers doing their best to help others’ but that’s true for everyone. ‘I was trying my hardest to do my job’ has never been a defence. It also implies that paramedics are always ‘doing their best to help others’ but that may not be the case and if a person raises a claim that there was excessive force or negligence used that needs to be tested. Court’s and the law cannot just assume that because the person was a paramedic they were simply ‘doing their best to help others’. But as I say it is the absence of case law involving paramedics and ambulance services that is notable, not the presence of those cases.
The post you are commenting on was about a UK case on civil liability of statutory authorities (which does include ambulance services except in NT and WA). It doesn’t address issues of motor vehicle accidents, assaults and in my post I did say that ‘Ambulance services are somewhat different…’ It follows that I don’t think the comments you have made are really about the same subject area.