Today’s question is:

How does the law relate to emergency service personnel witnessing/watching members of the public performing tasks instead of doing it themselves? Examples might include: SES watching members of the public cut trees on roads, members of a fire service watching a member of the public evacuate people from a burning building, members of a rescue service watching a member of the public wade through water to ‘rescue’ a person etc.

I’m thinking there would be two main areas:

1) Safety – What if the person injures themselves? Would the person still be a member of the public? or would the Emergency Service be responsible? (either through duty of care OR once they arrive, it’s now their “workplace”)

2) Liability – What if the person damages something? and/or someone else? (similar philosophy to above)

That question raises far too many scenarios to a complete answer; it all depends.

First the emergency services don’t have to do everything for everyone (see Coordinating firefighting with NSW RFS, FC and NPWS (February 29, 2020).  Remember that the emergency services are never the first responders, first responders are always local and will start dealing with emergencies. People complain about a lack of resilience in communities so it would be perverse to stop people doing what they are doing if they are doing a good job.  The SES may see a person on their own roof patching a whole and offer to assist but if the person says ‘no, I’ve got it’ the SES don’t have to step in.

Allowing people to continue may bring them within the compensation laws. The laws generally extend to anyone who places themselves under the control or direction of the emergency services.  If the SES or fire service commander says ‘you’re doing a great job – you keep doing that and we’ll do some other task’ that may be sufficient to bring the person ‘into’ the emergency service.  This is the classic ‘spontaneous volunteer’ where someone has stepped up out of need and may be bringing exactly the right skills to the task.

Equally if a person is tasked by the agency (even if the tasking is ‘you’re doing a great job, keep going’) then depending on the legislation in each state/territory that may also mean the agency is liable, or what is much more likely, that the volunteer and the agency is protected from liability for the actions of that spontaneous volunteer.

If the person is injured there could be liability on the agency if in fact the person was not doing a great job, or did not have the right skills, and the agency did not step in. There is generally no duty to rescue so there is no duty to stop people harming themselves but there may be a duty in particular cases.  In Stuart v Kirkland-Veenstra [2009] HCA 15, Crennan and Kiefel JJ said (at [127] & [129]):

The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm…

In principle a public authority exercising statutory powers should not be regarded by the common law any differently from a citizen. It should not be considered to have an obligation to act. But the position of a public authority is not the same as that of a citizen and the rule of equality is not regarded as wholly applicable. It has public functions and it has statutory powers which the citizen does not. Some powers might be effective to avert or minimise a risk of harm to particular persons or their property, but the statute might not oblige their use. The relevant concern of the common law is whether a public authority might nevertheless be considered to be under a duty of care which obliges it to exercise its powers in a particular way.

Where an agency established for, and with statutory power to manage the response to a flood, fire or other emergency turns up and simply observes those affected try to manage the response themselves, without stopping to think ‘are they doing a good job?’ ‘are they competent?’ etc could well find itself liable for its inaction.  So for example watching ‘a member of the public wade through water to ‘rescue’ a person’ could well be negligent for the flood rescue team equipped with a boat, flotation devices and where the person doing the rescue appears to be struggling.