Today’s correspondent follows on from my article
… on fire wardens and liability https://australianemergencylaw.com/2019/03/22/no-legal-protection-for-fire-wardens-because-it-is-not-needed/
I hoped this might answer my question but it did not, presumably because of the bracketed caveat (not in Queensland) relating to good Samaritan actions.
Here’s the situation I’m wondering about. I live in a ‘Retirement Village’ in Brisbane. As a retirement village, the place operates under different legislation to other developments.
The ‘village, is, in fact, a block of 52 units occupied by some 60 people and extending over four stories. The lowest of which is probably some 15 or so feet above street level. It is only two years old and complies with all the relevant fire safety regulations.
There is a main fire panel that indicates which unit triggered the alarm so that we can go to that unit and see if it’s a real issue of simply burnt toast or whatever
The occupants are all over 70 and range from very fit to pretty infirm.
The problem is that one or other resident manages to set the fire evacuation system off regularly (some six times in about eight weeks recently), This results in everybody having to evacuate the building and in the fire brigade being called out each time to check everything and turn the alarm off.
We did have residents who volunteered as fire wardens who were authorised to turn the alarm off and reset the system which avoided the brigade being called.
That stopped however once it appeared that such volunteer fire wardens could be held personally liable if, as a result of their actions, there was injury or worse to any resident. This is said to apply even if the warden has acted in accordance with procedures and in good faith.
I, and others, would be willing to be volunteer wardens and turn off/reset the alarm once it is established that it really is a false alarm. But not if there is a chance of being held liable if something goes wrong.
Since your earlier blog post suggested that Queensland is different could you clarify the situation here, especially with reference to retirement villages.
The reason Queensland was excepted from that earlier post is that Queensland does not have good Samaritan legislation like the other states. In Queensland the protection is limited to members of prescribed organisations – see Good Samaritan legislation – a comparison (February 22, 2017). In the post that my correspondent referred to I argued that fire wardens are not good Samaritans within the meaning of the legislation across the states. Given that, the absence of Queensland legislation does not change the answer.
But here we’re talking about volunteers, not people paid to be fire wardens. Even so, I fail to see how “volunteer fire wardens could be held personally liable if, as a result of their actions, there was injury or worse to any resident. This is said to apply even if the warden has acted in accordance with procedures …”. The question is always ‘was the person’s conduct ‘reasonable’ in the circumstances?’ If they have followed procedures and the procedures themselves are reasonable, where is the negligence? A poor outcome does not prove negligence.
Further I assume a ‘retirement village’ is operated by an entity. That entity has duties to its residents – those duties will arise under common law as the occupier, under contract law (depending on the terms of the contract between the operator and the residents), under Work Health and Safety Laws and under any relevant residential aged care legislation. As part of their obligation, they would need to have emergency procedures. If the fire wardens are trained and trusted by the operator, then the operator will be liable for any failure in the emergency procedures.
In Queensland (Civil Liability Act 2003 (Qld) s 39), as in other states,
A volunteer does not incur any personal civil liability in relation to any act or omission done or made by the volunteer in good faith when doing community work—
(a) organised by a community organisation; or
(b) as an office holder of a community organisation.
Community work (s 38) is:
… work that is not for private financial gain and that is done for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose, and includes making donations of food if the donations are not for private financial gain and are done for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose.
Depending on the operator of the retirement village (ie is it a ‘for profit’ or ‘not for profit’ organisation) the work may be ‘community work’ so a volunteer fire warden would be protected.
Even if the organisation is a for profit organisation, it will still be liable for any negligence by a volunteer. The volunteer is part of the organisation’s emergency response team, and the organisation has a duty to ensure that team responds in a reasonable manner.
This begs the question of ‘to whom did it appear that ‘volunteer fire wardens could be held personally liable if, as a result of their actions, there was injury or worse to any resident’?’ I would ask them on what basis they formed that belief. Personally I cannot see it if they attempt to genuinely apply their training for the benefit of the community.
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.