I understand that when someone writes to me, I only get one side of the story and one person’s understanding of the conversation, rather than a transcript. Others involved may report what was said, or the context, or the detail differently. But if this story is only vaguely true, I shake my head in despair. Todays’ correspondent
… was attending a crew leaders’ course today with the NSW RFS. The aim of this course is to qualify people as crew leaders and once they become qualified, they are eligible to be elected as a field officer of a rural fire brigade (deputy captain etc). During the course several statements were made by the instructors that I don’t believe are correct.
1. The first one was that we cannot control traffic at an emergency and that if an accident were to occur, we would be “liable”.
2. The second statement was that we are “not classed as emergency service under the legislation”. That is simply baffling to me.
3. And the third statement was that we should not be responding appliances to incidents with a “firefighter in charge” (even if they are a qualified crew leader) the assumption was that because the firefighter in charge, even though qualified to lead a crew is not a field officer and so is not “covered by the act “. I don’t see the problem here as my understanding is anyone can take necessary steps to protect life and property at an emergency and perform any action that would be considered reasonable at the time and is conducted in good faith. So it seems obvious to me that a firefighter who is a qualified crew leader responding to an emergency is undertaking action that is necessary to protect life and property and is acting in good faith as a member of the emergency services and as long as their actions are reasonable then there is no problem.
4. Another general statement that was repeated several times was that we would be “liable” for any mistakes made while leading a crew at an incident. This is also not correct from my understanding. If we are carrying out our duties as an emergency services worker at an incident and doing so to the best of our ability and something “goes wrong” my understanding is that liability falls upon the service, not the individual unless they were considered grossly negligent or were doing something illegal in which case it would be a criminal matter.
(I have put the comments into numbered paragraphs for ease of reference).
1. Traffic control
I infer that what the trainer meant by ‘traffic control’ was direct traffic rather than simply close the road. The RFS can close the road (Rural Fires Act 1997 (NSW) s 24). But controlling traffic is not so much closing the road as directing traffic up and down the road, eg by closing one lane. There is no law that says the RFS cannot do that; anyone can do that. If there was an accident I could direct traffic. A driver may commit no offence if he or she ignores me, but equally I commit no offence by trying to help. And I won’t be liable if someone crashes their car. Responsibility for driving a car belongs to the driver; they are not an automaton who must simply proceed as directed even if that means driving off a cliff or into an oncoming car.
Where a member of the RFS is performing that task, if there is any negligence and if liability could be established, it would be the RFS, or more correctly the State of New South Wales that would be liable.
For more details see the answer to (4), below; see also Traffic Control by RFS volunteers (April 30, 2013) and Assisting NSW police with road closures (January 7, 2014).
2. … emergency service under the legislation…
I have no idea what legislation the trainer may have been referring to. The Road Rules 2014 (NSW) define an emergency worker as, inter alia, ‘a member of a fire or rescue service operated by a NSW Government agency’. A member of an RFS brigade is ‘a member of a fire … service operated by a NSW Government agency’ that agency being the Rural Fire Service.
The definition of ‘emergency services organisation’ in the State Emergency and Rescue Management Act 1989 (NSW) s 3 includes the NSW Rural Fire Service.
I cannot think of any other legislation that defines the term ‘emergency service’ (or something similar) so I have no idea why anyone would say that the RFS is ‘”not classed as emergency service under the legislation”.
3. A ‘firefighter in charge, even though qualified to lead a crew is not a field officer and so is not “covered by the act” …
Again, I don’t know what Act we’re talking about, but I infer that the use of the term ‘responding appliances’ means we’re talking about emergency driving. The Road Rules 2014 talk about ‘a member’, not a member of a particular rank. A person authorised to drive the appliance by the RFS is ‘covered’ by the relevant traffic legislation.
The power to exercise control at a fire is vested in ‘An officer of a rural fire brigade or group of rural fire brigades of a rank designated by the Commissioner …’ (Rural Fires Act 1997 (NSW) s 22(1)). ‘The Commissioner has determined that a Brigade or group officer of the rank of deputy captain or above may exercise’ those powers listed in s 22. He has delegated his powers under s 22(2A) to ‘All officers of the Service of and above the rank of Officer Level 1’ (Service Standard 1.3.1 Delegations and Authorisations, p. 4; Service Standard 1.3.2 Powers of Officers [1.4] and [1.6]).
It follows that if the trainer was talking about the exercise of powers under s 22 the relevant criteria is that the member is a deputy captain or above, not a qualified or appointed ‘crew leader’.
In any event the Rural Fire Service is established to provide, inter alia, ‘rural fire services’ that is (Rural Fires Act 1997 (NSW) s 9):
(a) services for the prevention, mitigation and suppression of fires in rural fire districts,
(b) the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in rural fire districts,
(b1) the protection of infrastructure and environmental, economic, cultural, agricultural and community assets from destruction or damage arising from fires in rural fire districts,
(c) the provision of services referred to in paragraphs (a)-(b1) throughout the State in accordance with Part 3,
(d) any other service prescribed by the regulations.
Section 128(1) says
A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.
If a firefighter, of any rank or qualification, is engaged in providing rural fire services he or she enjoys the protection of s 128. They do not have to be, or be acting under the direction of, a ‘crew leader’.
4. … we would be “liable” for any mistakes made while leading a crew at an incident…
This sort of claim is of course nonsense. Apart from s 128, the Rural Fire Service will be liable for any negligent performance by any firefighter- employed or volunteer. See https://emergencylaw.wordpress.com/?s=vicarious+liability
If that claim were true, one would assume no-one would be a crew leader. If we do look at the cases where a crew leader has been sued or held liable for any mistakes made while leading a crew at an incident, we can see that there are … none.
Discussion
Of course I’m relying on my correspondent’s interpretation of what was said, and not a transcript. Nor do I have the benefit of the trainer’s interpretation of what they said or the context in which they were saying it. But either they said it, which is problematic, or a trainee thinks they said it which is also problematic because if trainers are being misunderstood that has the same effect as if they are wrong.
There have been many examples of what I call ‘training by fear’ (see https://emergencylaw.wordpress.com/2018/04/23/vicarious-liability-for-volunteers/#comment-10325) and this sounds like more of them. Trainers should stick to delivering approved training and not add legal commentary. My response to the questions asked are:
- A licensed traffic controller is required to control traffic at road works on behalf of the RMS. Anyone can direct traffic at an accident. There may be no offence if someone choses to ignore the direction, but common sense says that such actions are necessary.
- The RFS is clearly an emergency service under any NSW legislation that defines emergency services.
- The statement that ‘… a “firefighter in charge” (even if they are a qualified crew leader) … is not a field officer and so is not “covered by the act”…’ makes no sense. Any and every firefighter enjoys the protection of s 128 which provides ‘cover’ for acts done in good faith, even if done badly or without proper authorisation. A deputy captain or above, not a crew leader, can exercise the RFS emergency powers.
- Neither a volunteer nor an employee will be ‘…”liable” for any mistakes made while leading a crew at an incident…’ The state of NSW will be vicariously liable for the negligence of RFS firefighters, with some exceptions for criminal or deliberate misconduct (noting that schools have been held liable for sexual misconduct by their staff and you don’t get much more criminal or deliberate than that; and Mr Well’s may have been criminally liable for causing a fatal motor accident (Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017)) but he was not personally liable to pay the civil damages).
Australian Emergency Law 
Michael, I’d guess that the comment about a non-ranked officer taking a crew out is concerned with only officers having powers under the Rural Fires Act, to enter property, take water, put in burns, remove people, etc.
That ignores RFS procedures which clearly allow these powers to be delegated to any members in this situation, by a Duty Officer including and specifically by radio (s2.16 of Service Standard 1.3.2).
Sounds clearly like a misinformed trainer. The question is, what steps does the RFS take to ensure that its (volunteer) trainers know their stuff and what steps do trainers take to ensure that they’re current- particularly in light of the recent amendments to the RF Act? Plenty of trainers have appointed themselves authorities who know everything, but they’re emperors in new clothes.
The one I used to hear all the time was ” Do you want to have to front the Coroners Court” as a reason for not doing anything involving a risk.
All too often trainers are teaching erroneous material from a qualification that they obtained 30 years ago, and probably were not really competent in then, and certainly wouldn’t be competent in now.
Suggest that crew leader and group leader qualifications should be recertified say every 5 years, and you see tantrums being thrown left, right and centre.
I agree that people often use the coroner as the ultimate threat, even though the coroner cannot find either criminal nor civil liability – nor are coroners overly critical of genuine but flawed efforts – see https://emergencylaw.wordpress.com/2018/12/01/first-aid-and-paramedic-care-and-coroners-are-not-out-to-get-you/ and https://emergencylaw.wordpress.com/2019/01/03/coroner-hits-out-at-police-or-perhaps-not/
I cannot think of any other legislation that defines the term ‘emergency service’ (or something similar) so I have no idea why anyone would say that the RFS is ‘”not classed as emergency service under the legislation”.
I assume this stems from the RFS driver who was charged after a fatality on the M1; he had used an ’emergency vehicles only’ u-turn bay and pulled over off the road on the other side. A passing car ran into him – while he was off the road on the shoulder – and at least one person died. IIRC in that case it was argued it was not an emergency vehicle because it was not responding?
You have the facts of the case you are citing wrong. See https://emergencylaw.wordpress.com/2017/10/13/court-of-appeal-dismisses-appeal-by-rfs-tanker-driver-involved-in-fatal-collision/ and the other eight posts cited there that discuss that case and the legal implications of the decision.
Thanks for the clarification; I did indeed have the facts wrong.
The key point in your (now edited) response:
“The fire appliance was not an ‘emergency vehicle’ as there was no emergency”
I think a lot of RFS volos were surprised to hear this when it first came out; most of us assumed – wrongly it turns out – that an RFS vehicle fitted with beacons was no different to a FRNSW vehicle fitted with beacons, in terms of being an ’emergency vehicle’.
An RFS vehicle fitted with beacons is no different to a FRNSW vehicle fitted with beacons. RFS and FRNSW and NSWAS are all the same, a vehicle is a ’emergency vehicle’ when being driven by an emergency worker in the course of his or her duties when responding to an emergency. Absent any emergency none of them are emergency vehicles.
Its quite scary to read this, as it sounds very much like it could be trainers in my own district..
I have heard No.1 every time we discuss MVA’s, and after attending an MVA and putting people on traffic control I have been “reminded” afterwards that we are “not allowed” to do it unless directed by Police. Yet strangely enough the service saw fit to send us the equipment (stop go sticks etc) so that we can do the job…
No.2 I have heard variations of, usually in reference to the aforementioned case where the Vehicle was deemed not to be exempt from the Road Rules due to the Emergency being over.
No.3 again I hear many different opinions on. Unfortunately many people take what they hear as gospel and don’t bother to read the Rural Fires Act. As stated above, an Officer can delegate those powers, specifically via radio. They then also need to provide that a person with a Warrant card present that card if required within a given timeframe. This one I have more commonly heard coming up to election time, where we have been told we need “enough officers in the brigade for 1 per truck, per 12 hour shift”. Where clearly it is stated in the Constitution that the brigade chooses the number of Deputy Captains it requires.
No.4 Again sounds familiar in both being told your liable, as well as the perceived threat of facing the Coroner. Seems to be a tendency for people to put the weight on the shoulders of prospective crew leaders / officers so that they think about decisions before making them.
There have been many posts, here and elsewhere, concerning RFS officers and the power to control traffic. It’s worth an archive search.
Thanks for another informative article. Interesting that I was doing a St. John first aid course (in the NT) and a similar scenario was presented, in that a person had been found unconscious on the road. I cannot remember the exact solution they presented, however when I mentioned parking a car on the road to protect the victim, and/or directing other road users around the victim, the instructor was adamant that you cannot “interfere with traffic” and you can be fined if you do. Thanks for clarifying this