Today’s correspondent has a background in work health and safety and is concerned about the use of non-rated or designed equipment in rescues. They say:

I have asked multiple times the legality of how we can teach this but keep getting told that due to it being a rescue we don’t have to worry and the [Work Health and Safety] Act allows using a high-risk piece of plant for this task. 

To be clearer lifting on tines of forklifts, using teeth on the bucket of excavators or any form of implement on tractors. Attaching loads using home-made equipment or non-rated gear. I seem to have seen it all but in every other discipline we are getting safer and safe with no use of non-rated gear or improvised techniques anymore. Vertical rescue is a good example of moving from single rope to twin line and no improvising gear.

In answering this question I’ll use the NSW legislation as my exemplar recognising that every jurisdiction, other than Victoria, has adopted the model Work Health and Safety Act 2011.

The Work Health and Safety Act 2011 (NSW) does provide some exemption for emergency services when it comes to confined spaces (see Work Health and Safety Regulation 2025 (NSW) r 63) but that is not relevant in our context.  As a matter of general principle, the Act does not provide a specific exemption or provide that emergency service may use unsafe equipment. The Act does not, on its face, allow ‘using a high-risk piece of plant for this task’. 

The Act, however, must be read in context.  The Act says that a Person Conducting a Business or Undertaking (a PCBU), in this case the Crown in Right of NSW through its emergency service organisations, has a duty to ensure ‘so far as is reasonably practicable’ (Work Health and Safety Act 2011 (NSW) s 19) the health and safety of the PCBU’s workers and anyone else who might be put at risk by their actions.  The duty is owed to the members of the emergency services as well as those that might be contracted to provide services eg plant operators – the bulldozer drivers at a fire, the crane operator at a rescue etc.  It is also owed to the public and the person in need of rescue. 

But what is ‘reasonably practicable’?  Section 18 says:

“reasonably practicable“, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including–

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about–

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

But that all assumes that the work to be done is going to be done.  One way to reduce the risk to emergency services workers from the risks inherent in their job is not to send them to any jobs.  A firefighter can be protected from the risks of being injured whilst firefighting by never being sent to a fire; but that’s hardly ‘practicable’.

And the context has to consider the urgency of the matter.  There is not only the risk of action, but the risk of inaction.  If, for example, a forklift if available and can be used to lift a weight to facilitate a rescue it may not be ideal.  The incident controller would have to consider the factors listed in s 18 but he or she also has to consider the risk to the person in need of rescue if they wait for the arrival of a more suitable crane.  They may recognise that there is a risk in using the forklift that would not exist if they used the crane but if the crane is one day away and the person in need of rescue will inevitably die in that time, waiting may not be ‘practicable’. And if the risk of using the forklift is low (yes it might go wrong and if it does it will be bad but probably not as bad as leaving the person without assistance and it probably won’t) then using the forklift might be the most ‘reasonably practical’ way to address the risk even if in normal operations one would never use a forklift for that task.

Low probability events happen, so if a risk is assessed as low the mere fact that it occurs does not mean that the risk assessment was wrong. To put that in a more positive light, the chance of winning the lottery is infinitesimally small, but every draw someone wins.  Just because you win the lottery it does not change the fact that the chance of winning the lottery was small.  So too, if there is a low risk of causing injury but injury is caused, it doesn’t mean that the risk was incorrectly calculated or that it was either negligent, or a breach of the WHS Act to take that risk.

What the PCBU and those in the chain need to show is that they considered the factors listed in s 18. Even if minds would differ on the outcome it does not prove a breach of the Act.  If the decision maker can show they considered the factors in s 18 and can justify their conclusion there is no breach, even if the prosecution can call another person to say ‘if I was the decision maker, I would have made a different decision’.   That there is more than one ‘reasonably practicable’ solution to a problem does not prove a breach of duty when one is chosen over the other. 

That is not to say it is an easy call or that it won’t be problematic if worse comes to worst and someone dies.  For example in Scotland a woman fell into a disused coal mine. The local fire brigade attended.  They set up equipment, that had been designed to facilitate safe work at heights, as an effective crane.  They lowered a firefighter into the mine and were preparing to lower a paramedic.   With my colleague Professor Stephen Dovers, I wrote about this case in a report for the Bushfires Cooperative Research Centre (see Learning for Emergency Services: Looking for a new approach (Bushfire CRC 2017) available at https://www.naturalhazards.com.au/crc-collection/downloads/final_bnhcrc_learning_lessons_green_paper_-_needs_eu_statement_from_schauble.pdf). We said (at p. 27):

At that time Mr Stewart, a more senior fire officer:

… overheard, on an internal broadcast, the decision … to allow [the paramedic] … to descend into the hole. His immediate reaction was to attend at the site and assume control for the incident. He was concerned that [the Paramedic] was not trained in the use of SWAH [Safe Working at Heights] equipment nor was he part of Strathclyde Fire and Rescue Service and therefore should not be using Strathclyde Fire and Rescue Service equipment. Mr Stewart determined that [the Paramedic’s] descent into the hole had not been properly risk assessed, that the stability of the environment in general had not been risk assessed, and that, in his view such were the serious deficiencies in the conduct of the operation to this point and that there was great potential for catastrophic consequences in the event of further land displacement… He instructed that a cordon be set up beyond which no one should venture and that they should await the arrival of Strathclyde Mountain Rescue team who were specifically tasked with the conduct of a rescue which involved rope access.

Mr Stewart intervened, took over the role of IC, and directed that the service would wait for the arrival of the police rescue squad who were identified in the relevant plan as the appropriate authority.  The delay meant that the victim died of hypothermia as she had not suffered any fatal injuries in her fall.  We continued (at p. 27-28)

… As the Sheriff said:

Mr Stewart, in particular, considered that the rescue operation was “a success”. In his view he had adhered to the policies and procedures set out by Strathclyde Fire and Rescue Service. He had obtempered to the letter the instruction contained within the Memoranda from Strathclyde Fire and Rescue Service of the 14 and 27 March 2008. There had been no casualties other than the one to whom the Service was called upon to rescue.

Unfortunately this was not a successful operation: a woman died …

He went on

For a rescue to be achieved, some imagination, flexibility, and adaptability were necessary. There was clearly a balance to be struck between the interests and safety of the rescuers, and those of the casualty they were there to rescue. It is the policy of Strathclyde Fire and Rescue Service to issue each fireman with a risk assessment aide memoir which sets a flow chart to address the question of risk assessment in any given situation. That flow chart provides “a dynamic risk assessment” and is to be followed by “an analytical risk assessment”. However, what presents as a danger to the rescuer, when set against the need to rescue the casualty, can be a matter of fine judgement… there was a preoccupation with adherence to Strathclyde Fire and Rescue Service policy which was entirely detached from the event with which Strathclyde Fire and Rescue Service were confronted. Mr Stewart’s risk analysis and assessment of the circumstances was flawed and impeded what should have been a more expeditious rescue of Mrs Hume. The core consideration of a risk assessment is a question of whether or not the risks to be taken are proportionate to the benefits gained. That must be an objective consideration…

The Sheriff found that Mrs Hume’s death could have been prevented by, amongst other things ‘A rigorous and thorough risk assessment by Strathclyde Fire and Rescue Service balancing the conditions of the terrain with the condition of the Deceased and the passage of time to have prevailed over proscriptive Strathclyde Fire and Rescue Service Corporate Policy’. In short the fire service incident controllers should have been more willing to engage in a dynamic risk assessment, to ‘balance … the interests and safety of the rescuers, and those of the casualty’ and to take ‘acceptable’ risks.

This can be (and in our report is) compared to the decision of a NSW Coroner who was critical of decision making in a rescue where a NSW Ambulance Paramedic was killed whilst attempting a rescue that ‘went beyond the rescue winching procedures specifically provide for in CHC Standard Operating Procedures and/or contravened those procedures’ and ‘involved the use of roping techniques… which were both inappropriate and unapproved for use in a helicopter winching operation’ but which, by inference, everyone in the rescue thought posed an acceptable risk when balanced against the need to rescue the person in distress. 

As we said in our report (p. 30-31):

It is impossible to draw direct parallels between the two events, they were very different both in the circumstances of the rescue and in the issues that the rescuers faced. Even so the dichotomy between the outcomes of these two events is clear. With respect to the death of Mrs Hume, firefighters on the scene perceived that they had the tools and the skills to conduct the rescue even though it would have required them to use their Safe Working at Heights kit in a way that was directly contrary to a direction from the Fire Service. They were stopped by a senior officer who ‘obtempered to the letter the instruction’ from the Fire Service and ensured that none of the fire fighters were killed or injured. He recognised the need for initiative but not when that ran counter to direct policy. Notwithstanding this he was subject to criticism for failing to exercise ‘imagination, flexibility, and adaptability’. His risk assessment did not address the ‘question of whether or not the risks to be taken are proportionate to the benefits gained’.

On the other hand, in Australia the crew of Rescue 24 did consider the benefit to the patient of getting him, and them, out of the canyon on Christmas Eve. They demonstrated ‘imagination, flexibility, and adaptability’ when they modified rescue procedures to suit the situation. They must have believed that the procedure would be effective and would work or else they would not have done it. They were wrong and a paramedic died. The outcome was to recommend actions to ban certain techniques, to put in place rules and procedures that the ambulance service must expect will be ‘obtempered to the letter’ even when those on the scene think that they can perform an effective rescue. ‘[R]isk taking’ will ‘not only [be] subordinate to but effectively proscribed by’ ambulance policy. Senior officers will be available to step in and ‘stop’ the execution of a plan that is perceived as too risky or contrary to instructions – that is to prevent another death of a rescuer, the ambulance service should have in place policies and officers to do what the Strathclyde Fire and Rescue Service were criticised for.

The explanation for the different outcomes is obvious. In the Scottish case it was the patient that died and the coroner was making recommendations to ensure that outcome would be avoided next time. In the Australia case it was the rescuer who died. No doubt the outcomes would have been very different if the Scottish fire fighters had descended into the shaft which then collapsed around them or if the Australian rescuers had decided to sit with the patient overnight and he had died from a combination hypothermia and other, otherwise non-life threatening injuries.

Neither of those cases involved an alleged breach of the Work Health and Safety Act (or its Scottish equivalent) and no prosecution (as far as I’m aware) took place, but it does highlight the complexity of the decision-making process.   In the context of today’s discussion however the Scottish sheriff certainly took the view that the nature of the emergency warranted a departure from SOP’s and ‘best practice’ that are written in a different context and are ‘entirely detached from the event’ facing the rescuers.    Equally an incident controller who refuses to permit the use of ‘non-rated gear or improvised techniques’ that experienced rescue operators think will work with little risk will not be commended if the patient dies as a result of any delay.

In terms of Work Health and Safety law the outcome for a breach is a criminal penalty.  As it is a criminal statute the Crown must prove its case beyond reasonable doubt. The High Court has said ‘the prosecution to show that the means which should have been employed to remove or mitigate a risk were practicable’ (Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010) [16] (French CJ, Gummow, Hayne, Crennan, Kiefel And Bell JJ).  

When identifying what is practical the Crown must also look to s 18 (quoted above).  Merely pointing out that there was an alternative practicable response does not necessarily mean that the defendant has breached their duty if their response was also a practicable response to the risk.  Further an allegation that there was a practicable alternative must be made by the Crown but it can be resisted by a defendant, that is a defendant could argue that what the Crown suggests they should, or should not have done was not actually practicable in the context – that is ‘when set against the need to rescue the casualty’. 

Conclusion

The Work Health and Safety Act 2011 (NSW) does not, specifically, allow the use of ‘a high-risk piece of plant’ when conducting a rescue. The PCBU still needs to ensure, ‘so far as is reasonably practicable’ the health and safety of its workers and those affected by its work.  But what is ‘reasonably practicable’ has to be put in the context of the situation – and an emergency is an unplanned and time critical event. Where a PCBU that wants to lift a weight may in the normal course of business have time to plan the operation and bring in the ideal equipment, a rescuer may not have that luxury if the rescue is to be made.   Taking into account all the factors in s 18, including ‘the availability and suitability of ways to eliminate or minimise the risk’ a rescuer could be justified in taking action that in other circumstances would not be reasonable.  To paraphrase the Scottish sheriff:

For a rescue to be achieved, some imagination, flexibility, and adaptability [are] necessary. There [is] clearly a balance to be struck between the interests and safety of the rescuers, and those of the casualty they [are] there to rescue. … However, what presents as a[n unacceptable] danger to the rescuer, when set against the need to rescue the casualty, can be a matter of fine judgement

See also:

Eburn, M. Changes to occupational health and safety laws and the impact on volunteers in the emergency services. The Australian Journal of Emergency Management 26, 43-47 (2011).