Today’s correspondent says he is
… a member of a large research society and late last year I suggested they purchase a defibrillator. I got the ‘ostrich head in the sand’ response – public liability, no one trained and similar excuses. I am in the process of drafting a letter to the Committee pleading for them to reconsider.
I was wondering if you have any material that would be useful in levering their obligations to getting for their office space in the Melbourne CBD. I have noted the provisions of the Wrongs Act (Vic). It appears that unfortunately it is not a statutory obligation unlike hygiene, fire extinguisher, safety lighting etc to have one. This aspect of a lack of legal obligation warrant me approaching my local member in the near future to have the relevant work care legislation amended to include defibrillators, of course conditional perhaps on the venue, number of people, distances etc
I have written a lot on the use of defibrillators. On issues to do with the ‘ostrich in the sand’ attitude see:
- Fear of legal risk for installing AEDs is misplaced (September 17, 2019);
- Liability for installing, or not, an AED in a retirement community (December 1, 2018) and
- Choosing not to install an AED for spurious reasons (September 10, 2018).
But, for my view on why I don’t think AEDs will be made compulsory see Making the installation of AED’s compulsory (September 27, 2015) and Liability for failing to install an AED? (April 7, 2016).
Having said that there is a Bill before the SA Parliament to make AEDs compulsory (see A Bill to require installation of AEDs in South Australia (October 29, 2019)). That Bill has not yet got past its first reading (see details on the Parliament web page) and I personally doubt it will ever see the light of day.
I don’t think Parliaments will ever make AEDs compulsory as it is against the current trend to ensure that people make their own risk assessment. There is an obligation to provide first aid equipment and facilities (see Model Work Health and Safety Regulations (as at 15 January 2019) r 42)). Victoria (and Western Australia) have not adopted the Model Act and Regulations so you need to look at the Occupational Health And Safety Act 2004 (Vic) and Occupational Health And Safety Regulations 2017 (Vic). Neither of these have a general duty to provide first aid and first aid equipment that equates to r 42 of the Model Scheme. However a duty to ensure that there is first aid facilities can be implied by the general duty to provide for the health and safety of works (s 21).
WorkSafe Victoria says (Compliance code: First aid in the workplace (1st ed, 2008), p. 2):
4. The law requires employers to provide, so far as is reasonably practicable, a safe working environment and adequate facilities for the welfare of their employees. Section 21(2)(d) requires that, in meeting their duty under section 21(1), an employer must provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the employer’s management and control.
5. This needs to include having appropriate first aid measures in place, including first aid kits and suitably trained first aid officers.
6. Employers owe the same duty to any independent contractors and their employees who are working at the workplace, but only for matters over which the employer has, or should have, control.
That equates both to my conclusion and the general duty in r 42 for an employer (not a PCBU in Victoria) to do a risk assessment and consider what is appropriate.
What will make AEDs compulsory is not legal rules but a situation where AEDs become so common place that they became part of standard first aid equipment. Victoria still adopts a rather old-fashioned approach identifying the number of first aid kits required based on the number of employees (p. 8). The list if minimum kits contents (p. 8) is pretty basic, to say the least. The compliance guide does say (p. 9) that
The employer needs to assess whether additional first aid kit modules are required where particular hazards exist. Some examples of commonly needed additional modules are those dealing with eyes, burns and remote workplaces.
The list of ‘Additional modules for first aid kits’ set out on pp. 25-26 does not refer to AEDs or oxygen or other resuscitation assistance.
WorkSafe Victoria acknowledge that this guide is out of date. They say:
… on 18 June 2017, the OHS Regulations 2017 replaced the Occupational Health and Safety Regulations 2007, which expired on this date. This compliance code has not yet been updated to reflect the changes introduced by the OHS Regulations 2017. Complying with a compliance code made in relation to the old regulations may not necessarily mean compliance with a duty under the new regulations.
Nor, I would suggest, has it been updated to reflect changing technology and expenses.
I do not think any Parliament will move to require AEDs because to do so would be contrary to modern trends to require an employer or PCBU or building occupier to do a risk assessment and ensure that they have in place facilities to adequately deal with reasonably foreseeable risks. I have previously made the argument that whilst the risk of someone suffering a sudden cardiac arrest is 1; the risk of it happening at any given place is very low. Equally we’ve all seen workplaces where the first aid kit cannot be found and when it is, all the contents are out of date. It follows that many employers or others may quite reasonably think there is little need to buy an AED.
Doing a risk assessment that leads to a conclusion that an AED is required equipment will depend, I suggest, on the enthusiasm of the first aid officer and the respect that he or she, and the office are held by management. In terms of regulation it will not be an Act of Parliament but the development of guidance by agencies such as WorkSafe Victoria. When compliance guides (and see also the Model Code of Practice: First Aid in the Workplace) start discussing AEDs and when they should be considered then employers and PCBU’s will be under legal pressure to install them.
In response to this post, Adj. Assoc. Professor Alan Eade ASM, Victoria’s Chief Paramedic Officer wrote and said:
Thanks for the work on these posts
These might be of interest and related to this topic:
Two of those links are to publications by WorkSafe Victoria. Whilst they do not compel an employer to install an AED but they will form part of the progressive steps that will one-day make AEDs a normal part of first aid equipment.
2 schools of thought…
If one of the staff at the large research society has a VF arrest I bet they world looks to have a defib on site. The 000 call taker can talk the caller through using it.
There wasn’t much chance of the Yellow Wiggle having an arrest on stage on Saturday night, yet the defib was what paramedics say saved his life.
I have one at my workplace!
Thanks For sharing information about defibrillator .
St John in Victoria are putting public access defibs in various suburbs. I have two with in 200m of my home. I am a Goodsam responder and I also have one at home all the time. I had to use one a couple of years ago on a person near home while doing CPR. It was a good out come the two best words the person said to me a short time later was “THANK YOU.”