Protecting Volunteers. Presentation to the Office of the Victorian Emergency Services Commissioner Michael Eburn Senior Lecturer, School of Law UNE, Armidale, NSW. 6 August 2008

The Ipp Review of Negligence law (2002) ‘The Panel is not aware of any significant volume of negligence claims against volunteers in relation to voluntary work, or that people are being discouraged from doing voluntary work by the fear of incurring negligence liability. The Panel has decided to make no recommendation to provide volunteers as such with protection against negligence liability.’

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

Consider 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.

Protect volunteers from what? Criminal law; Tort law (ie damages); Coronial law.

Identify, analyse and evaluate the risks Criminal law. Risk is small, except for driving offences. Consequence – can be major, loss of liberty? Loss of licence? Pay a fine?

Taken from Griffith University > (1 August 2008). safety/pdf/risk_matrix.pdf

Taken from Griffith University > (1 August 2008). safety/pdf/risk_matrix.pdf

Civil litigation Is the risk as low as nil? May be sued, but I predict no chance will personally have to pay damages.

Country Fire Authority Act 1958 and the Victoria State Emergency Service Act (2)A person to whom this section applies is not personally liable for any thing done or omitted to be done in good faith-… (3)Any liability resulting from an act or omission that would but for subsection (2) attach to a person to whom this section applies attaches to the Authority.

Emergency Management Act 1986 A volunteer emergency worker is not personally liable in respect of any loss or injury sustained by any other person as a result of the engagement of the volunteer emergency worker in emergency activity unless the loss or injury is caused by the negligence or wilful default of that worker

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. Where it exercises power for community not individual benefit.

Who would want to sue a volunteer? The only remedy the court can give is money, so sue where the money is…

Taken from Griffith University > (1 August 2008). safety/pdf/risk_matrix.pdf

Taken from Griffith University > (1 August 2008). safety/pdf/risk_matrix.pdf

Taken from Griffith University > (1 August 2008). safety/pdf/risk_matrix.pdf

The Coroner The Coroners, following recent enquiries, are scary! They investigate the ‘bread and butter’ of the ESO’s.

Taken from Griffith University > (1 August 2008). safety/pdf/risk_matrix.pdf

Treat the risks “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.”?

What’s the problem… Is the law, or what people think the law is? 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. 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? Tell your volunteers that you will stand by them. Introduce critical incident management. Be prepared to take the flack. Train your volunteers well.

Monitor the outcome… Remember Ipp said: ‘The Panel is not aware … that people are being discouraged from doing voluntary work by the fear of incurring negligence liability.’ Research into volunteer fears may be helpful to both identify the risk and the treatment.

Recent developments Liability protection doesn’t apply to criminal prosecutions NSW is a bit of a mess (but you knew that …)

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