Session 2 – Dealing with the legal risk 21 January 2010

Risk Management There is a risk of legal consequences due to our actions… So, manage the risk. Something that fire fighters and the emergency services are familiar with. Look at this diagram…

Emergency Management Australia, Emergency Management in Australia; Concepts and Principles (Australian Emergency Manual Series, Manual Number 1, 2004) p 8.

Establish the context. Relevantly the law: Makes a statement about fundamental principles; Empowers agencies and people such as the fire commander at the fire scene; Holds people accountable; Sets the parameters within which negotiation occurs. In our context the fire/police service are statutory, government agencies. They are insured by the Tasmanian Risk Management Fund. Is the risk to individuals or the service?

Identify, analyse and evaluate the risks The outcome will depend on whether we are looking at the question from the point of view of the organisation, or a member. Outcomes can be much worse for individuals. Consider –Criminal law; –Tort law (ie damages); –Coronial law.

TasFS Risk Matrix Consequences Likelihood LOW MEDIUMSIGNIFICANT 2 LOW MEDIUMSIGNIFICANT 3 LOW SIGNIFICANTHIGH 4 MEDIUMSIGNIFICANT EXTREME 5 SIGNIFICANT HIGHEXTREME

Consequence or impact LevelDescription Examples 1Insignificant No injury, no damage to property, plant and/or equipment 2Minor First-aid treatment only required and/or slight damage to property, plant and/or equipment 3Moderate Medical treatment required off-site, limited repairs to property, plant and/or equipment 4Major Extensive injury(s) requiring hospitalisation/ medical intervention, and/or damage to property, plant and/or equipment require significant repairs 5Catastrophic Death or critical injury and/or damage to property, plant and/or equipment require replacement No adverse media attention – Financial cost under $2,000 Adverse local media coverage only – Cost $2,000 - $50,000 Adverse capital city media coverage – Cost $50,000 - $250,000 Adverse & extended national media coverage – Cost $250,000 - $1m Government intervention – Financial. Response subject to detailed coronial or Royal Commission inquiry?

Likelihood LevelDescriptionExamples 1Rare The event may occur only in exceptional circumstances 2UnlikelyThe event could occur at some time 3PossibleThe event should occur at some time 4LikelyThe event will probably occur in most circumstances 5Almost Certain The event is expected to occur in most circumstances

Risk Exposure – Action Recommended Extreme Stop task or operation, detailed research, planning and control action required as soon as practical High Immediate corrective action required before continuing task. Consider alternative action Significant Initial action required to make safe, further planned action is required before commencement Medium Action required to make safe prior to commencing the task Low Manage by routine procedures (eg. inform staff, signage, barriers, PPE, etc.)

Criminal prosecution The Fire Service could be prosecuted (Criminal Code Act s ) but what for? Breach of OHS Act (eg WorkCover v NSWFB)? Manslaughter? Individuals can be prosecuted – assault, dangerous driving causing death, negligent driving? In any event criminal prosecution will be rare that is “The event may occur only in exceptional circumstances”.

Criminal prosecution Consequences Likelihood LOW MEDIUMSIGNIFICANT 2 LOW MEDIUMSIGNIFICANT 3 LOW SIGNIFICANTHIGH 4 MEDIUMSIGNIFICANT EXTREME 5 SIGNIFICANT HIGHEXTREME

Civil litigation Will the organisation be sued? Perhaps Will a member? Never!

Fire Service Act 1979 (Tas) Section 121 … the Commission is liable in tort but no brigade, officer, fire-fighter, employee, or agent shall be liable unless they acted in ‘bad faith’. Even the Commission is not liable if the alleged act or failure occurred in good faith and in the course of, or was directly connected with fire fighting operations. Similar provisions to those contained in the Emergency Management Act 2006 (Tas).

An authority is not liable … For exercising a statutory power. Where that would be inconsistent with the Act – which has included consideration of statutory compensation schemes (for example Fire Service Act 1979 (Tas) s 111; Emergency Management Act 2006 (Tas) ss 54 and 59). Where it exercises power for community not individual benefit.

Who do you want to sue? An individual member? The fire service/State of Tasmania? Who’s going to be able to pay?

Civil litigation Consequences Likelihood LOW MEDIUMSIGNIFICANT 2 LOW MEDIUMSIGNIFICANT 3 LOW SIGNIFICANTHIGH 4 MEDIUMSIGNIFICANT EXTREME 5 SIGNIFICANT HIGHEXTREME

The Coroner and the Royal Commissioner The Coroners, and Royal Commissions, are scary! They investigate the ‘bread and butter’ of the ESO’s. When they inquire into fire response they are looking into things that, by definition, have gone catastrophically badly! They can be set up to deflect criticism from government and they can be personal for the service and/or its Commissioner/Chief Officer.

Consequences Bad press? Recommendations for change? They can’t order damages, they can’t find anyone guilty of anything. Whether members named remain in their jobs is a matter for the Government and/or the Fire Service, not the inquiry (consider the Coroners inquest into the 2003 Canberra fires; 2009 Victorian Bushfires Royal Commission; 2009 WA Boorabin fires inquest).

Adverse coronial inquest Consequences Likelihood LOW MEDIUMSIGNIFICANT 2 LOW MEDIUMSIGNIFICANT 3 LOW SIGNIFICANTHIGH 4 MEDIUMSIGNIFICANT EXTREME 5 SIGNIFICANT HIGHEXTREME

Combined Consequences Likelihood LOW MEDIUMSIGNIFICANT 2 LOW MEDIUMSIGNIFICANT 3 LOW SIGNIFICANTHIGH 4 MEDIUMSIGNIFICANT EXTREME 5 SIGNIFICANT HIGHEXTREME

Treat the risks

Elimination Amend the Fire Service Act 1979 (Tas) and Emergency Management Act 2006 (Tas) to say: “No cause of action or criminal prosecution shall lie against a member of the emergency services. A member of the emergency services is not a compellable witness in any proceedings.”? Probably not. The risk can’t be eliminated, the ESOs can’t be outside the law.

Substitution Substitute the organisation for the member - Fire Service Act 1979 (Tas) and Emergency Management Act 2006 (Tas) Substitute the Tasmanian Risk Management Fund for the organisation.

Isolation and Engineering Not really feasible.

Administration ‘Using policies and standard procedures eg training’. Insurance – pass the risk to someone else. In this case the Victorian Managed Insurance Authority.

The residual risk It is true that: You can get before a court even if you did the right thing, so being sued/questioned doesn’t mean you did the wrong thing. The law can’t be set up so ‘they can’t complain if we do this or that’ People can complain/take legal action, but that doesn’t make them right. Liability is ‘all or nothing’. In civil litigation, no one is really on your side.

We think the law looks like this… Plaintiff wins Defendant wins

But really it’s more like this… Plaintiff wins Defendant wins X X X X

What’s the solution? Change the world?

Communicate and consult The risk is low – don’t dwell on it in your communications. You WILL stand by your team, even if mistakes are made (you don’t really have a choice). Introduce critical incident management. Be prepared to take the flack. Train your members well. Remember criminal prosecution aside, it’s not your money. For a firefighter, the biggest risk is criminal prosecution!

Monitor the outcome… Are there legal proceedings? What really are the outcomes? Do you still have staff and volunteers? What’s morale like?

Conclusion Thank you for your attention. Any questions or comments?