Protecting Volunteers. Presentation to Victorian State Emergency Services and Country Fire Authority Michael Eburn Senior Lecturer, School of Law UNE, Armidale, NSW. 12 September 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.

Identify the risk Criminal law; Tort law (ie damages); Coronial law.

Identify, analyse and evaluate the risks

NSW SES Risk Matrix

NSW SES MinorNo first aid treatment required ModerateFirst Aid on the job required MajorMedical treatment required SevereExtensive injuries CatastrophicDeath Insignificant No personal injury – No adverse media attention – Financial cost under $2,000 Minor Minor personal injury – Adverse local media coverage only – Cost $2,000 - $50,000 Moderate Serious personal injury – Adverse capital city media coverage – Cost $50,000 - $250,000 Major Multiple serious personal injuries – Adverse & extended national media coverage – Cost $250,000 - $1m CatastrophicFatality(ies) – Government intervention – Financial Uni of New England MinorNo adverse media attention – Financial cost under $2,000 ModerateAdverse local media coverage only – Cost $2,000 - $50,000 MajorAdverse capital city media coverage – Cost $50,000 - $250,000 SevereAdverse & extended national media coverage – Cost $250,000 - $1m CatastrophicFinancial ruin Combined…

H = Critical. Stop work until something is done. Plan controls for immediate implementation. M = Moderate. Set time scales for action as soon as practicable. L = Low Risk. Manage by routine procedures and monitor. Source: NSW SES Risk Matrix What to do?

Criminal prosecution

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…

Civil litigation

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

Adverse coronial inquest

Treat the risks

Elimination Country Fire Authority Act 1958 and the Victoria State Emergency Service Act “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.”?

Substitution Substitute the organisation for the volunteer - Country Fire Authority Act 1958 and the Victoria State Emergency Service Act Substitute the Managed 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. 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 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.

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