protecting volunteers. presentation to victorian state emergency services and country fire authority...
TRANSCRIPT
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.
NSW SESMinor No first aid treatment required
Moderate First Aid on the job required
Major Medical treatment required
Severe Extensive injuries
Catastrophic Death
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
Catastrophic Fatality(ies) – Government intervention – Financial
Uni of New EnglandMinor No adverse media attention – Financial cost
under $2,000
Moderate Adverse local media coverage only – Cost $2,000 - $50,000
Major Adverse capital city media coverage – Cost $50,000 - $250,000
Severe Adverse & extended national media coverage – Cost $250,000 - $1m
Catastrophic Financial 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?
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 2005.
(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…
The Coroner
• The Coroners, following recent enquiries, are scary!
• They investigate the ‘bread and butter’ of the ESO’s.
Elimination
• Country Fire Authority Act 1958 and the Victoria State Emergency Service Act 2005.
• “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 2005.
• Substitute the Managed Fund for the organisation.
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.
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.