(Legal) Risk Assessment

Michael EburnSenior Lecturer, School of Law

UNE, Armidale, NSW.

19 November 2008

In this presentation…

• We will:– Apply familiar risk management tools to – Identify what are the perceived and real legal

risks in SES Operations; and– Consider how they may be managed.

• We will do this to encourage you to: – Think about legal risk from different

perspectives; and– Not to worry (too much) about the law.

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.

• There are other areas that we wont consider:

– Administrative law;– Planning and environmental legal issues;– Governance and Government issues.

NSW SES Risk Matrix

Severity (SES)

Minor No first aid treatment required

Moderate First Aid on the job required

Major Medical treatment required

Severe Extensive injuries

Catastrophic Death

Severity (UNE)

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

Something more useful…?

Minor

Moderate

Major

Severe

Catastrophic

Likelihood (SES definitions)

Rare Possible but not expected to occur

Unlikely Will only occur in unusual circumstances

Possible Might be expected (less than half the time)

Likely Expected occasionally (more than half the time)

Almost certain

Expected to occur in most circumstances

Consider

• The Scenario

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?

NSW SES Risk Matrix

Treat the risks

1. Elimination

State Emergency Service Act 1989

25   Personal liability of members of Service and volunteers

(1)  A matter or thing done by:(a) a member of the State Emergency Service, … (b) … (c) …does not, if the matter or thing was done in good faith for the purpose of exercising the functions of or assisting the State Emergency Service, subject the member, officer or volunteer personally to any action, liability, claim or demand.

State Emergency and Rescue Management Act 1989

59   Liability for actions of members of rescue units and volunteers

(1)  Anything done or omitted to be done by an accredited rescue unit or by a person as a member of an accredited rescue unit or authorised volunteer does not, if done or omitted in good faith in connection with a rescue operation or otherwise in response to an emergency, subject the accredited rescue unit, the person or any other person to any action, liability, claim or demand.

Civil Liability Act 2002

61   Protection of volunteers

A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work:

(a)  organised by a community organisation, or

(b)  as an office holder of a community organisation.

But they’re not guaranteed to work

• See NSW v West [2008] ACTCA 14 (5 September 2008) (Canberra bushfires litigation).

• The Civil Liability Act 2002 will almost certainly increase the complexity of any litigation.

So, perhaps…

• “No cause of action or criminal prosecution shall lie against a member of the State Emergency Service. A member of the State Emergency Service is not a compellable witness in any proceedings.”

2. Substitution

• Substitute the organisation for the volunteer – eg Victoria State Emergency Service Act 2005.

• The position just isn’t clear in NSW – Civil Liability Act 2002, s 3C.

• Substitute the insurer (the Treasury Managed Fund) for the organisation.

3. Isolation

• The SES can’t ‘isolate’ itself; regardless of the legal risk you still have to do the job;

• Refusing to act carries a (bigger) legal risk.

• The SES wont, and can’t, be exempt from the law.

4. Engineering?

5. Administration

• ‘Using policies and standard procedures eg training’

• Insurance – pass the risk to someone else. In this case the Treasury Managed Fund.

6. PPE

• Depends on who we consider the ‘personal’.

• May be: – Insurance? – Recordkeeping?

(Good records = good defence; bad records = bad defence; no records = no defence)

– Self discipline?– Refuse to take on a leadership role?

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.

• In civil litigation, liability is ‘all or nothing’ and 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

XX

XX

What’s the solution?

• Change the world?

• If not that, perhaps…

Some ideas?

• Try to understand the risk – make informed decisions, not based on urban myth.

• Don’t talk up the risk.

• Tell your members that you will stand by them.

• Introduce critical incident management.

• Be prepared to take the flack.

Training

• Train your members well;

• Train as you mean to operate;

• Apply the training each and every time;

• Ethics – the job isn’t just technical – – it’s not a ‘tree job’ it’s a ‘tree affecting a

person job’

• Are decision makers (from team leaders up) competent, confident and supported?

Questions or comments?

• Thank you for your attention and the opportunity to contribute.

Contact details:Michael Eburnmeburn@une.edu.auPh: 6773 3701 (w)