Today’s correspondent has:
… seen a growing number of residents being sent alerts by NSW RFS stating, something like “If you are in [affected area] seek shelter as the fire impacts. It is too late to leave.” (News article mentioning this kind of alert being issued in Shoalhaven NSW – https://www.sbs.com.au/news/emergency-fire-warnings-issued-in-nsw-as-winds-pick-up )
I appreciate that these messages are most likely intended to prevent people being trapped in vehicles when the fires hit, as opposed to trying to seek refuge in a structure which may provide greater protection.
My question is, what if these messages, for all their good intentions, are not the best advice for residents.
I can imagine that there might be situations where a resident trying to shelter in place may be their worst option, whereas trying to escape the area or seek refuge in a better prepared/constructed structure or a designated Neighbourhood Safer Place may be a better option. (I would have to think that people remaining in the affected area to the point that this kind of alert is issued would fall into two groups – people who have invested in preparing their property and are likely to be able to protect themselves effectively, and the second group being people who didn’t prepare, didn’t think to evacuate early, and are now stuck in an indefensible, unprepared structure.
I recognise that advice, much like your articles, can only be issued to a large audience in general terms, and so long as it is reasonable, and accurate for the majority, people in those edge cases are likely to find the advice imperfect, but I wonder whether someone could take this good (if brief) advice in a bad circumstance and end up with a worse outcome than if they had tried to escape, contrary to that advice.
If there is a nugget of a useful question here, which you want to address, I’d appreciate it.
I suppose the question is ‘could there be liability if it turns out the advice was, in the circumstances, less than optimum?’.
In phrasing it like that I think of the UK Grenfell Tower disaster where the London Fire Brigade warned people to stay in their apartments as that was considered the best advice but it turned out that in that building on that day it was not the best advice. (The response to that fire has been the subject of a report which I have not yet full read and digested and so have not written on). At the time of that fire (The Rt Hon Sir Martin Moore-Bick Grenfell Tower Inquiry: Phase 1 Report (October 2019) Vol 4, [29.16]), if a caller rang 999 (the UK equivalent of triple zero) to seek advice on what to do:
Brigade Control advise callers to “Get out and Stay out”, however if a call is received from a High rise building where Fire, Heat and Smoke are not affecting the caller, LFB would advise that:
‘You are usually safest to remain in your premises unless affected by fire, heat or smoke. If the situation changes you should leave your premises and dial 999, if you need further assistance.’
In that particular case however, it was poor advice. The Phase 1 Report (Executive Summary [2.19]) says:
The firefighters who attended the tower displayed extraordinary courage and selfless devotion to duty, but the first incident commanders, although experienced, were of relatively junior rank. They were faced with a situation for which they had not been properly prepared. In particular:
a. None of them seem to have been able to conceive of the possibility of a general failure of compartmentation or of a need for mass evacuation; they neither truly seized control of the situation nor were able to change strategy…
c. The LFB continued to rely on the “stay put” strategy in place for Grenfell Tower which was not questioned, notwithstanding all the early indications that the building had suffered a total failure of compartmentation.
Whether that will lead to any liability of the LFB remains to be seen, but it is an example where a fire brigade gives advice based on standing procedures which are in turn (we hope) based on science and experience but in a particular case it can turn out to be the wrong advice. But is that the case in my correspondent’s example?
It is well documented that during the Black Saturday fires of 2009, Victorian police officers led a community to safety. The 2009 Victorian Bushfires Royal Commission (Final Report, Volume I, Chapter 10, p. 155) said:
Senior Constables Kenneth Dwight, Peter Collyer and Ian Hamill made the decision that evacuating the people gathered at the Gallipoli Park oval would be safer than allowing the people to stay there. They were confident that evacuation was possible because they had recently driven down the Buxton–Marysville road and it had been passable.
Senior Constables Dwight, Collyer and Hamill, along with Senior Constable Andrew Walker, who directed the people on the oval to drive in convoy to Alexandra, had to make snap judgments using very limited information. They exercised initiative and sound judgment. Although acknowledging that this approach went against prevailing policy and that the evacuation was risky because the Buxton–Marysville road could have become blocked, the Commission commends the officers for their bravery and decisiveness. They made a controversial decision, but they made it with the safety of the public foremost in their minds and successfully delivered those involved to a safer place.
Volunteers in two VICSES vehicles drove along the streets of Marysville trying to warn any residents remaining in the town. They used the vehicles’ public address system, calling out ‘SES Rescue, all vehicles evacuating Marysville are to head to Alexandra only’. When they reached the corner of Falls Road and Mount Kitchener Avenue, embers started coming in through the vehicles’ windows, and they decided it was too dangerous to stay. They went to the rear of the convoy, waiting as cars joined and advising people to keep going to Alexandra.
As the convoy drove north along the Buxton–Marysville road the smoke cleared. The police and the VICSES personnel were able to warn many residents along that road and in Buxton of the approaching fire by going from door to door.
The Commission commends the police and the VICSES volunteers involved in evacuating Marysville and Buxton for their courage and presence of mind.
In that situation the decision worked, and the police involved were rightly considered heroes. It would have been a very different situation if all those involved had been led to their death. There will always be circumstances where people make a call based on the situation in front of them and where that does not accord with the official advice and sometimes, as in that event on Black Saturday, the outcome will be a success.
There will also be situations where l where people follow advice and it doesn’t work but that doesn’t make the advice negligent. If you seek a medical opinion your doctor may prescribe medication that benefits most people, but you might be the person for whom it doesn’t work and you suffer debilitating side effects. It would have been better for you to get some other advice but that does not mean the doctor’s recommendation was wrong or negligent.
To turn to the story that my correspondent refers to, the relevant warning in that story was ‘”If you are in the area … seek shelter as the fire impacts. It is too late to leave.” That is not saying ‘seek shelter exactly where you are’. If a person has followed RFS advice they have a bushfire plan which includes where they will shelter which may be someone else’s home or a neighbourhood safer place. That is the advice is not necessarily shelter where you are but ‘to shelter in place … or seek refuge in a better prepared/constructed structure or a designated Neighbourhood Safer Place’. But it is up to the person do determine what is the ‘better option’.
The advice such as that given in the quoted story is not telling people where to shelter, just that they should seek shelter. My correspondent is correct that advice such as that on a website, emergency alert or via news media cannot be personal, it cannot tell people where to shelter or how they should react given the situation that they are facing at the moment.
Does this expose the fire service to potential legal action? I have argued previously that failure to warn cases will be easier to run than others as there is little cost to issue warnings – see my papers:
- ‘The emerging legal issue of failure to warn’ (2012) 27(1) Australian Journal of Emergency Management 52-55.
- ‘Litigation for failure to warn of natural hazards and community resilience‘ (2008) 23(2) Australian Journal of Emergency Management 9-13.
That doesn’t however address this issue. Here a warning is being issued so the question is should a person follow the advice and suffer a harm would there be liability. The answer has to be almost certainly ‘no’. The advice being issued by fire services is well informed by science (see https://www.bnhcrc.com.au/research/cluster/communications-warnings) and as noted it cannot be individualised or expected.
Further for legal consequences a person would have to prove, not merely assert, that if they had ignored the advice, they would have had a better outcome. That could never be shown. If a person died whilst sheltering, the family may want to say ‘if they’d left, he/she would have survived’ but that could never be known.
Does generalised advice such as ‘”If you are in the area … seek shelter as the fire impacts. It is too late to leave” expose an agency such as the RFS to a risk of legal consequences if a person follows it and, for example, dies? My answer is almost certainly ‘no’.
And that is my view without even beginning to ask if there is a duty to issue a warning (see for example Warragamba Winery Pty Ltd v State of New South Wales  NSWSC 701 (July 19, 2012)) or the various protections that would be available to the RFS (for example Rural Fires Act 1997 (NSW) s 128 and Civil Liability Act 2002 (NSW) Part 5).
I couldn’t help but notice that one of the concerns of your correspondent is largely answered by the wording of the recommendation. That: people should, “seek shelter”. Which when expanded in the context of Bushfire Survival means: “To activate that contingency within your bushfire survival plan to seek shelter within the nearest defensible structure”.
So in that instance where the person’s dwelling is not properly defensible – it shouldn’t be considered shelter. That person should exercise their own judgement and seek the nearest available shelter found elsewhere.