Today’s question relates to using sirens as a form of community warning in South Australia. I’m told:

Fire Brigades have been using station sirens for a long time. Once, it was primarily to summon fire fighters to the station.  When paging became widespread in the 1990s, sirens took on more of a community warning function…

SACFS HQ … takes the view that the day of the station siren is over and has requested/directed their use be ceased.  We understand there are several drivers for this, primarily cost.

The first is (purported) legal cost.  Risk-averse lawyer-y types threatening all sorts of future court-room grief if CFS doesn’t make them 100% guaranteed to sound when needed, even if the power is out or they have been taken down for repair…

The second is operating cost. They need a lot of power to run … and need maintaining and replacing.  CFS argues that they are poor bang-for-buck in terms of coverage vs cost.  Except…

…  A small but significant percentage of Hills residents have little or no mobile or GRN reception in their homes, and as their land-lines are replaced by NBN, satellite voice & data coverage only.  But the sirens can be heard clearly, even in the deepest, darkest black-spots.  Because of this, many brigades and their communities in the Adelaide Hills want to retain or reinstate their station sirens…

So, the questions….

  1. Is there any validity to the idea that CFS would be in some way liable for losses if the station siren doesn’t sound that one time it was needed?
  2. Could a CFS Brigade “defy” HQ and retain/reinstate their siren anyway. I understand that the Brigade couldn’t force “The CFS” to pay for it, but would “The CFS” be able to stop them doing so if the Brigade had the funds available?  Property ownership of fire stations mostly lies with SAFECOM, the parent body over CFS, SES & MFS.

The issue of sirens as a tool for community warning was the subject of discussion in the 2009 Victorian Bushfires Royal Commission.  At the time Victoria’s Country Fire Authority did not support the use of sirens. The Commissioners, in their Interim Report (Chapter 4, Warnings) said:

4.206 Sirens are intended as a signal to those in the vicinity to seek further information or take protective action according to procedures established in the minds of those hearing the siren. When understood correctly (that is, as a trigger used against the background of an existing procedure for correct response) it is clear that a siren may have a useful role as part of an overall system of bushfire warnings.

4.207 CFA policy is that sirens are not to be used for warning the public. Mr Rhodes expressed the view that sirens have many limitations. He confirmed that the CFA does not advocate the use of sirens.

4.208 The Commission has heard evidence on the use of sirens in some communities in Victoria and South Australia. Whether the use of a siren is appropriate as a fire danger warning depends on local circumstances, including a developed community appreciation of its function. There is scope to investigate and develop the use of sirens in communities that would benefit from such an alert system. In addition, sirens may be useful outdoors, particularly for travellers and campers…

4.232 There is potential for more communities to attempt a comparable approach as that in use in Ferny Creek, Walhalla or Woods Point. Not all communities will want to institute a local alert siren. Some communities will determine to use their siren in different ways for different purposes. The option to pursue local solutions, including sirens, should be part of Municipal Emergency Response Plans and should also be given more prominence and assistance in the education campaigns and advice concerning bushfire preparedness.

As Mr Esplin notes in relation to the Ferny Creek fire alert siren:

The community should not be just a passive recipient of services; it should be an active participant in developing safety strategies that it knows how to apply and is willing to apply, and applies, and it is involved in a partnership with the emergency services and with local government … and it is my philosophy that where such a tripartite partnership can be recreated, the safety outcomes are maximised, but risk is mitigated to the greatest extent.

4.233 Sirens are one of a number of options that might be deployed in some areas to ensure the community is alerted to the need to be ready to receive warnings, search out further information, take defensive actions or prepare to implement a protocol for a local refuge.

Recommendation 4.7

The Office of the Emergency Services Commissioner and the CFA develop guidelines for the use of sirens in communities that decide to use a siren as part of their response to bushfires.

Now, to the questions.

1.  Is there any validity to the idea that CFS would be in some way liable for losses if the station siren doesn’t sound that one time it was needed?

Put in such simple terms the answer is ‘yes, there is some validity to the idea that the CFS could (not would) be liable’.  But there are many hurdles.

Sirens are contemplated as an emergency service warning tool. The Fire and Emergency Services Act 2005 (SA) s 129 says:

An emergency services organisation or a council may erect a siren in a suitable place for the purpose of giving warning of the outbreak or threat of a fire or the occurrence or threat of an emergency, and may test and use the siren.

The power to install a siren does not give rise to a duty or obligation to exercise that power (just because you can, does not mean you must).

Assuming that the installation of the siren gives rise to some ‘duty of care’ the essential issue in negligence law is that the obligation is to take ‘reasonable’ care, it is not a guarantee of safety.  To take reasonable care a defendant like the CFS would need to show that it had considered risks and had in place ‘reasonable’ maintenance procedures. Equally, as noted by the Royal Commission, there would need to be community understanding of what the siren meant and the CFS would have to take an active part in that community education (as they do now in, for example, explaining what fire warnings mean).  There’s no point having a siren if people don’t know what it means.

But in trying to make the CFS liable a potential plaintiff would have many difficulties.  Assuming that the installation of the siren gave rise to a duty of care, a common law duty is a duty to take reasonable care, not to guarantee safety – ‘an obligation to exercise reasonable care must be contrasted with an obligation to prevent harm occurring to others. The former, not the latter, is the requirement of the law.’ (Roads and Traffic Authority of NSW v Dederer [2007] HCA 42, [51]).

There is a risk that all warning options will fail to reach a person or will fail to work. The failure of mobile networks can guarantee that an ‘emergency alert’ will fail to reach those dependant on the mobile network but that does not mean anyone will be liable for that.  A siren might fail, it may not be heard, it may not be understood.  If there is a duty it is a duty to take reasonable steps to deal with those risks (regular maintenance, community education) not to guarantee that they don’t arise.  The installation of sirens may well be a reasonable response to a risk that other warnings won’t work in particular areas. If there is a risk of liability because the siren might fail, there may also be a risk of liability if other warnings fail and the use of the siren may be a reasonable response to that risk.

The next hurdle is causation. Even if there was negligence in failing to maintain or activate a siren, a potential plaintiff would have to show that the siren would have made a difference.  Where they suffer loss or damage due to fire it’s the fire that is the cause of the loss.  They would have to show that had the siren sounded they would have done something that they did not do and that would have avoided whatever losses they suffered. That will not be easy when warnings are communicated by other means, and where people can be expected to remain observant to local conditions. In catastrophic fire conditions, the warning may not have made any difference.

I would suggest the best approach is that recommended by the Royal Commission and that is the use of sirens should be a matter considered by the CFS, the community and local council that is required ‘to take measures to protect its area from natural and other hazards and to mitigate the effects of such hazards’ and ‘to provide infrastructure for its community … (including infrastructure that helps to protect any part of the local or broader community from any hazard or other event…)’ (Local Government Act 1999 (SA) s 7(d)).

2.   Could a CFS Brigade “defy” HQ and retain/reinstate their siren anyway.  I understand that the Brigade couldn’t force “The CFS” to pay for it, but would “The CFS” be able to stop them doing so if the Brigade had the funds available?  Property ownership of fire stations mostly lies with SAFECOM, the parent body over CFS, SES & MFS.

As noted, s 129 of the Fire and Emergency Services Act 2005 (SA) says ‘An emergency services organisation … may erect a siren …’.  An emergency services organisation is the SA Metropolitan Fire Service, the Country Fire Service (CFS) and the State Emergency Service (s 3).  The CFS is established by the Act and consists of the Chief Officer, the staff and the members of the brigades. But each brigade is not a separate legal entity nor is it, on its own, an ‘emergency services organisation’. In simple terms the Act allows the CFS to install a siren but that does not mean each brigade.  Each brigade is part of the larger organisation managed by the Chief Officer who has ‘control all resources of SACFS’ (s 60(4)(a)).

In short yes, the CFS could stop a brigade installing a siren even if the Brigade had funds available as ultimately the brigade does not own its funds. The brigade is not a separate legal entity, so the funds collected by the Brigade are funds owned by the CFS and are subject to the direction of the Chief Officer. IF that were not the case, if brigades could do what they wanted if they could afford it, there would not really be a country fire service.

Conclusion

The issue here are not really legal questions. The SACFS has the power to install a siren. The question is not or should not be about duty of care or liability but whether a siren could ‘ensure the community is alerted to the need to be ready to receive warnings, search out further information, take defensive actions or prepare to implement a protocol for a local refuge.’ That involves discussions beyond the CFS to include local government and the community and to ask them what they want and what will work for them.

If a siren is a good local response, there is no legal risk that should stop their installation. IF the community says that is the only warning that is going to work given ‘residents have little or no mobile or GRN reception in their homes, and as their land-lines are replaced by NBN, satellite voice & data coverage only’ in which case if there is a duty to warn, it may be negligent not to find an alternative such as a siren.

POSTSCRIPT

After writing this post a correspondent sent these details on the position in Victoria.

Following the 2009 Bushfires Royal Commission, Victoria went on to develop policy and procedures around the use of community sirens and undertook a pilot program exploring technologies to effect their use. In all, fewer than 40 communities ended up with community alerting sirens and these remain in use as part of the overall warnings and advice system in Victoria. Nearly all of them repurpose exisiting siren infrastructure attached to CFA stations, which were modified and linked into to the statewide warnings system. While it is possible for a community to seek to have a new siren installed, there appears to be no appetite to fund more sirens from government and in recent years minimal demand for additional sirens from the community.
Here is a link to CFA’s information about community alert sirens: https://www.cfa.vic.gov.au/warnings-restrictions/community-alert-sirens
There are some inherent limitations in the use of sirens for community warning, not in the least of which is interpretation as to what siren sounds mean but also including range and audibility in adverse conditions. The use of smart phone apps and telephone alerting have overcome some of these, although all technological solutions are inherently subject to failure.
In Victoria, the position has always been that sirens are just one of a number of community alerting mechanisms.  When used, they never signify evacuation and are simply a signal to “seek further information”. They are triggered at the discretion of an incident controller once warnings and advice messages reach  “watch and act” level and automatically at “emergency warning” level. One occasion on which they were used with good effect was the 2015 Wye River bushfires.