1. Emergency Management for Local Government Legal Issues Michael Eburn ANU College of Law

2. Emergency Management Legal issues for local government? Prepare Land use planning Risk warning Prepare emergency plans Prevent Mitigation strategies

3. Emergency Management Respond Warnings given? Was the plan followed? Recover vulnerable population, high degree of control Restore services Rebuild better?

4. Areas of law Administrative law Review of decision making. Criminal law Leads to punishment – fines and gaol – not really relevant here. Inquests and inquiries Tort negligence, misfeasance in public office, nuisance etc. Leads to the award of $.

5. Administrative law This is the sort of action where an applicant wants the respondent to correctly apply the law. Reviewer may be appointed as alternate decision maker.

6. Inquiries Royal Commission Coronial inquests Not meant to be adversarial – but often are.

7. Tort - Negligence An action in negligence raises three questions: 1.Did the defendant owe a duty of care? 2.Was there a breach of that duty? 3.Did the breach cause the plaintiff’s damage?

8. Can we sue? “… the path to defining the circumstances in which a duty of care is owed by one party to another has been a long and tortured one, and has, as yet, no end.” (Makawe Pty Limited v Randwick City Council). Just because the act says ‘must’ or ‘may’ does not mean someone can sue if you don’t. Statutory duty may not = duty of care. A ‘duty of care’ must be consistent with the powers given to, and the duties imposed, on the authority, so always start with the Statute.

9. Important Factors Is the statutory power granted for the benefit of the community (Barclay Oysters v Ryan; Capital and Counties) or for individuals? Control- the greater the degree of control over the risk, the higher the duty (Crimmins; Pyrenees Shire). Caltex Refineries (QLD) Pty Ltd v Stavar – listed factors from (a) to (q)!

10. Questions to ask? 1.Was injury foreseeable? 2.Could the defendant protect the plaintiff? 3.Could the plaintiff protect themselves? 4.Did the defendant know of the risk of harm? 5.Would a duty impose liability with respect to the defendant’s exercise of “core policy-making” or “quasi- legislative” functions? 6.Are there any other reason to deny the existence of a duty of care (for example, the imposition of a duty is inconsistent with the statutory scheme)?

11. Duty of care arises if the answers are: 1.Was injury foreseeable? YES 2.Could the defendant protect the plaintiff? YES. 3.Could the plaintiff protect themself? NO 4.Did the defendant know of the risk of harm? YES 5.Would a duty impose liability with respect to the defendant’s exercise of “core policy-making” or “quasi-legislative” functions? NO 6.Are there any other reason to deny the existence of a duty of care (for example, the imposition of a duty is inconsistent with the statutory scheme)? NO

12. Legislation ACT, NSW, Qld, Tas, Vic and WA a)the functions required to be exercised by the authority are limited by the financial and other resources b)the general allocation of resources is not open to challenge, c)The court must consider the whole range of functions that the authority has to perform.

13. Summary – duty of care A statutory authority, CAN owe a duty of care. But – must be consistent with the statute The exercise of ‘quasi-legislative’ powers are beyond judicial review and cannot be subject to a duty of care, neither can decisions regarding ‘… the raising of revenue and the allocation of resources…’

14. Breach of duty Duty is only to act as the ‘reasonable’ defendant. It is not a duty to guarantee safety. The reasonable defendant is not the average defendant – a legal fiction. Be careful not to apply the ‘retrospectoscope’

15. Wyong Shire v Shirt (1980) 146 CLR 40 [14]... the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.

16. Gardner v NT [2004] NTCA 14... this Court must be careful not to impose unreasonable expectations and unreasonable duties which are based more on hindsight and a lack of appreciation of the practicalities and difficulties that exist … than a realistic assessment of the care which a reasonably prudent person would exercise in these circumstances.

17. Vairy v Wyong Shire Council [2005] HCA 62 The duty of care which a council owes … is a duty which is not limited to taking reasonable care to prevent one particular form of injury associated with one particular kind of … activity.

18. Civil Liability Acts There is only liability if you fail to act as the reasonable authority. The Court must look at: (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.

19. Damage Did the actions/failure cause the damage? What difference would it have made if some other action had been decided upon?

20. Our scenario Can you apply these principals? Do the defendants owe a duty of care to the plaintiff? Did they cause the damage? NOTE: Legislation in all States and Territories impacts on the liability of volunteers and organisations that have volunteer member (eg RFS/Salvation Army). We need not concern ourselves with that here.

21. The little‘take home’ message Emergency management is subject to law; Legal risk varies with degree of control and impact on individuals. Hard to see any tort issues with ‘planning’ and ‘preparation’, may be low risk at ‘response’, higher at ‘recovery’.

22. Prevent Council perceived to have power, knowledge and control PrepareRespond Lack of control Recover Vulnerable population Legal risk

23. The big ‘take home’ message There are legal risks but There are legal risks in everything we do… Nothing can guarantee you wont be sued Nothing can guarantee you’ll win if you are but

24. The best answer is risk management Litigation is a dispute resolution process Being sued is a an opportunity to explain your position – to identify your processes.

25. Don’t worry about the law … focus on achieving good outcomes for your community.