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SCENARIO

SCENARIO. ‘Upholme SES suffer their own emergency’. Legal issues. Consider the following scenario. What might be the legal consequences: For the media officer? For the owner of the damaged vehicle? For the SES driver? For the Regional Controller? For the injured member?

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SCENARIO

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  1. SCENARIO ‘Upholme SES suffer their own emergency’

  2. Legal issues • Consider the following scenario. What might be the legal consequences: • For the media officer? • For the owner of the damaged vehicle? • For the SES driver? • For the Regional Controller? • For the injured member? • For the members that push the homeowners? • For the SES as an organisation?

  3. The media officer… • Is there a duty to warn? • Were his or her actions in ‘good faith for the purpose of exercising the functions of … the State Emergency Service’? (SES Act s 25: probably not – Ardouin’s case again.) • But who’s going to pay (if anyone)?

  4. The car owner… • There are risks to him, too • The case wont be easy, what might happen?

  5. The SES Driver • Vehicle is insured and registered – claim for compensation will be governed by the Motor Accidents Act 1989 and the Motor Accidents Compensation Act 1999(NSW); • Civil Liability Act 2002 (NSW) wont help (s 66 – doesn’t apply to MVAs); • SES Act wont help (Board of Fire Commissioners v Ardouin (1961) 109 CLR 105.

  6. Road Rules 2008 (NSW) 306Exemption for drivers of emergency vehicles A provision of these Rules does not apply to the driver of an emergency vehicle if: (a)  in the circumstances: (i)  the driver is taking reasonable care, and (ii)  it is reasonable that the rule should not apply, and (b)  if the vehicle is a motor vehicle that is moving—the vehicle is displaying a blue or red flashing light or sounding an alarm. But what happened here? What are the legal consequences for the driver?

  7. The driver died… The Coroner ‘… has jurisdiction to hold an inquest concerning the death or suspected death of a person if … (g)  the person died within a year and a day after the date of any accident to which the cause of his or her death or suspected death is or may be attributable…’(Coroners Act 1980 (NSW) s 13)

  8. The Coroner must • Dispense with an inquest (s 14) or hold an inquest to determine ‘… whether the person died and, if so: (a)  the person’s identity, and (b)  the date and place of the person’s death, and (c)  … the manner and cause of the person’s death. (s 22)

  9. The coroner may ‘… make such recommendations as the coroner … considers necessary or desirable to make in relation to any matter connected with the death, suspected death, fire or explosion with which an inquest or inquiry is concerned’ (s 27).

  10. The coroner can’t • Say anyone was negligent; • Order the payment of compensation; • Find anyone guilty of a criminal offence (but s 19 – the Coroner can refer the evidence to the DPP).

  11. The injured member • What happens if no compensation? • Workers Compensation (Bush Fire, Emergency and Rescue Services) Act1987 ‘… applies to personal injury received by an emergency service worker or a rescue association worker: (a)  arising out of or in the course of carrying out an authorised activity…’ (s 24). • Who’s going to pay?

  12. The Regional Controller • The SES, as an employer, must ensure the health safety and welfare of people at its’ place of work. • Volunteers are not employees, but the Regional Controller is – is this her place of work? Is she in control of the premises (at least to a limited degree)? (OHS Act 2000 ss 8, 10 and 20)

  13. OHS Act 2000 (NSW) s 20 ‘An employee must, while at work, take reasonable care for the health and safety of people who are at the employee’s place of work and who may be affected by the employee’s acts or omissions at work.’

  14. Breaches of the OHS Act • Are criminal in nature; they carry heavy fines. • Consider the implications of Workcover v NSW Fire Brigades[2006] NSWIRComm 356.

  15. The evacuation 22Power to evacuate or to take other steps concerning persons (1)  The Director-General (or his delegate – s 13) may, if satisfied that it is necessary or convenient to do so for the purpose of responding to an emergency … direct, or authorise an emergency officer to direct, a person to do any or all of the following: (a) to leave any particular premises and to move out of an emergency area or any part of an emergency area, … (c)  not to enter the emergency area or any part of the emergency area. (2)  If the person does not comply with the direction, an emergency officer may do all such things as are reasonably necessary to ensure compliance with it, using such force as is reasonably necessary in the circumstances. Note: The regional controller is a ‘senior emergency officer’ (s 18A)? Are the members? Was the evacuation properly authorised?

  16. The SES as an organisation? • Return

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