Today’s question comes from Western Australia and relates to incorporated SES units. The request is for

… any guidance or advice for units as an Incorporated Association and whether we should hold public liability insurance? It’s a question we have discussed but we really weren’t sure of the benefits.

Most activities/risks we undertake that are likely to require cover, we would be doing under the functions of the SES as outlined in the FES Act and would rely upon the DFES cover.

The WA SES

I have previously written about the strange nature of the WA SES – see The Commissioner and WA SES units (August 8, 2020). In that post I conclude there is no such thing as the West Australian SES, rather the Commissioner has certain functions (Fire and Emergency Services Act 1988 (WA) (the FES Act) s 18). To meet those functions the commissioner can approve (s 18C) and supply SES (s 18B(1)(a)) units. In effect each unit has a relationship with the Commissioner – there are 66 State Emergency Service units – rather than a single State Emergency Service.

Liability

As for potential liability, s 37(1) of the FES Act says:

… a person does not incur civil liability for anything that the person has done, in good faith, in the performance or purported performance of a function under the emergency services Acts.

Section 37(1a)(c) says:

… a person is taken to be performing a function under an emergency services Act if the person is — …

(c)        taking part in the performance by an SES Unit of its functions under Part 3A and is either —

(i)         a member of the SES Unit; or

(ii)        acting under the direction of a member of the SES Unit or a member of staff;

The functions of an SES unit under Part 3A (s 18E(1)) are:

(a) to take all practicable measures —

(i) for protecting and saving life and property endangered by natural disasters; and

(ii) for rendering safe the site of natural disasters;

and

(b) to carry out search and rescue operations; and

(c) to promote the safety of life and property from natural disasters, accidents and other events that may require search and rescue operations to be carried out; and

(d) to carry out assistance operations.

As part of its functions, an SES unit may (s 18E(2)):

(a) …

(b) carry out training activities and exercises; and

(c) carry out demonstrations and other public education activities; and

(d) carry out fundraising and promotional activities; and

(e) organise and participate in competitions; and

(f) carry out any activities that are reasonably incidental to the performance of its functions (such as travelling, providing communications systems and providing meals);…

Not only is the person not liable, the ‘Crown, a local government and any other person’ is ‘also relieved of any civil liability that any of them might otherwise have had’; that is there is no vicarious liability (s 37(3)). A person who suffers any loss or damage caused by a person protected by s 37 must look to their insurer for any restitution (s 37(5)).  That deals with liability for volunteers.

With respect to liability to volunteers, the FES Act says that the Commissioner must ‘effect and keep current insurance providing compensation for injury caused to present and former volunteers for which it is the responsible agency while engaged in volunteer activities’ and maintain insurance for ‘loss of or damage to vehicles, appliances, equipment and apparatus of volunteer units’ and ‘for loss or damage caused to privately owned vehicles, appliances, equipment, apparatus and items of personal property in consequence of being used for or in connection with volunteer activities’ (s 36ZQ).  The term ‘volunteer’ covers both a registered member of an SES unit as well as ‘a person who is not a registered volunteer, but who engages in volunteer activities under the direction of a registered volunteer or a member of operational staff’. Volunteer activities are ‘activities carried out by the volunteer unit of which the registered volunteer is an officer or member for the purposes for which that unit was formed’ (s 36ZM).

The Volunteers and Food and Other Donors (Protection from Liability) Act 2002 (WA) provides legal protection for volunteers but does not include volunteers in the emergency services (s 4(1)) on the basis that their liability and protection is provided for in the FES Act.

SES Units

The Commissioner may ‘approve as an SES Unit any group of persons, however constituted and whether incorporated or not, that the FES Commissioner considers to be appropriate for approval as an SES Unit’ (s 18C(1)).

Where an SES unit is incorporated under the Associations Incorporation Act 2015 (WA) then it exists as a separate legal entity that can sue and be sued (s 13(1)(d)), own property (s 14(1)(a)), enter contracts (ss 14(1)(g) and 15) etc. It has perpetual succession (s 13(1)(a)) which means that even as the members come and go, the legal entity continues.

Insurance

In terms of insurance the question becomes what risks does the incorporated SES unit own? The problem is complicated – as my correspondent says ‘Most activities/risks we undertake that are likely to require cover, we would be doing under the functions of the SES as outlined in the FES Act and would rely upon the DFES cover’.  Another way to look at that complication is that there are two legal entities involved – the SES unit and the State of Western Australia so in different circumstances deciding who is ultimately responsible for any loss or damage may be complicated.

A person doing any of those things defined as part of the functions of the SES (see above) is ‘taking part in the performance by an SES Unit of its functions under Part 3A’ so that neither the member, the SES unit nor the Crown is liable for any damage done or harm caused in the ‘good faith’ performance of those duties. A volunteer injured during those activities is undertaking a volunteer activity so is ‘covered’ by the insurance that the Commissioner is required to maintain.

It is hard to imagine what’s left; but of course, each unit would need to answer that in their own context. Some things I can think of are:

• Occupiers’ liability. If the SES unit owns its own building, insurance would be useful to deal with liability should a visitor to the premises get injured due to inadequate maintenance of or hidden dangers in the building but that would normally be included in relevant building insurance.
• Insurance for unrelated events – if a unit is doing things tangentially related to SES functions there may be a debate about whether that is covered by the Commissioner’s insurance – see for example Can NSW SES provide event first aid services? (November 13, 2016). There could always be arguments about whether any particular conduct is ‘fund raising’ or ‘promotional’ but it might be controversial. The advantage of having your own insurance is there is someone else to have the fight. As noted given there are two legal entities – the unit and the State of Western Australia. If an issue arises between any plaintiff, the state and the unit as to who the correct defendant is, then the insurers can argue the point – one of them will end up paying so let them sort it out.
• Other activities? The other risks are matters for each unit to consider.

Is it worth it? It’s a classic cost/benefit analysis. The risks are low – I’m not aware of any WA SES unit ever being sued, nor any member of the WA (or any) SES. Both the SES volunteers and the incorporated units enjoy the benefit of both s 37 and the Commissioner’s insurance. So one has to ask what would further insurance add, and balance that against the cost? 

Conclusion

Ultimately this is not a question I can answer as it depends on an assessment by each unit as to what they do, what their risks are, what insurance products are available and at what price.. The best person to answer that is probably a local insurance broker who can consider the circumstances of each unit, identify the risks and advise on what insurance products are on offer. Only with that advice could any unit decide if insurance is worth the premium.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.