(Legal) Risk Assessment
Michael Eburn
Senior 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
Might be expected (less than half the
time)
Expected occasionally (more than half
the time)
Expected to occur in most
circumstances
Possible
Likely
Almost
certain
Consider
• The Scenario
What to do?
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
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…
Defendant wins
Plaintiff wins
X
X
X
X
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 Eburn
[email protected]
Ph: 6773 3701 (w)