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.
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.
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).