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Comment by Michael on December 3, 2009 at 7:29pm

I'm not sure I understand why people think the firefighters shouldn't be suing here. The Supreme Court of New Mexico has held that the 'firefighter's rule' that is a rule that firefighter's can't sue for negligence where the negligent conduct caused the incidnete that the firefighters were responding to. The court said that a person who creates a peril owes no duty to firefighters if the firefighter's injury was 1) due to the negligence that caused the incident to which the rescuer was responding or 2) was due to reckless conduct but exposed the rescuer to risks inherent in their duties.

The rule does not apply where there is intentional or grossly reckless conduct that exposes the rescuer to hazards over and above the 'norm'.

In action for 'intentional infliction of emotional distress' the plaintiff needs to show 'extreme or outrageous' conduct by the defendant that caused extreme mental distress. In allowing this claim to proceed the court considered that there were the duties imposed on the defendant to liaise and work with the local fire brigades to ensure an appropriate response to a gas hazard, this put the defendant and the plaintiff's in a different position to say a householder who has no prior relationship with the fire department until a fire starts. The defendant's obligation to work with the fire department and their failure to do so and their failure to maintain their gas pipe could be factors that a jury might consider meant their conduct was 'extreme or outrageous'.

The plaintiffs then have to show that they have 'extreme and severe' mental distress, not just the 'normal' response to the trauma. The decision by the Supreme Court was to send the matter back to the trial court so that the jury could determine whether or not the relevant criteria have been met.

So if the law is that as a general rule a fire fighter cannot sue for being exposed to the normal risks of their job, why is it a problem to say 'but they can sue if they are exposed to injury (in this case to their psychological well being) that is above and beyond the normal and that is caused not by mere negligence but by extreme and indifferent conduct'?

And why is it a problem if the firefighters do sue and win? It has been pointed out that given the trauma that firefighters and rescuers face many of use could be richer but what we are exposed to most of the time is the 'norm' not the outrageous. And if we can sue the people that are particularly careless, willful or reckless doesn't that impose some pressure on organisations like the defendant to take more care?

I'm also not sure why if they succeed that will limit the number of people willing to do the job, surely more people will be willing if they know that if they are damaged by the experience, the community (through insurance) and the defendant's will help them. Why can't rescuers look to others for help, in extreme cases, just as the community look to us?

Comment by Brian Dumser on October 25, 2009 at 11:42am

I could understand if there was gross negligence on the part of the incident commanders, as we've seen in cases involving training deaths, but just as part of an everyday fire/rescue/EMS scenario...please!

Comment by Michael on October 25, 2009 at 2:16am

A legal action wont succeed just because a fire fighter has been exposed to traumatic scenes, they need to have suffered a compensable injury, in Australian terms, a recognized psychological injury. There are lots of impediments to suing too, the cost, time and clearly a peer pressure not to; so actions like this are likely to be reserved for the worst case scenarios.

The problem with Stephen's suggestion of limiting these actions to cases of arson (putting to one side gross negligence) is arsonists are unlikely to have the money to pay. Following the 2009 Victorian fires it has been reported that some homeowners are suing the power supply company for alleged negligence in the maintenance and construction of power lines. If they succeed they will recover much more than the home owners whose properties were destroyed by arson, as they will have no-one to sue.

Suing is simply loss shifting. Again to limit my discussion to Australia, we have compulsory workers compensation schemes were employed and volunteer firefighters will be given compensation including lost wages if they injured in the course of their duties. There will be little incentive for them to sue anyone else as the cost of brining the action will be high and the extra benefits not much (Australian verdicts are much less than in the US and in Australia, if you lose you have to pay the winner's legal costs, so suing is always a gamble). On the other hand, one would think the emergency services would actually like the firefighters to sue as it means the cost is born by the defendant's insurer, not the fire agencies insurer.

Fire fighters will also have a problem of trying to show whether it was 'this' accident/incident that caused the outcomes or whether its the culmination of a number of incidents over their career.

In short the law has at least in theory allowed firefighters (subject to the US fire fighters rule) to sue the person at fault for any injury they have suffered, but there have in fact been very few cases where this has happened, and in both the US and Australia there are significant legal barriers that will make success very hard, but not impossible.

Comment by Rusty Mancini on October 24, 2009 at 6:19pm

I'm a firm believer in CSID, our department has used it a lot this year alone! We are fortunate to have a very well rounded team we can call on anytime of the day or night. If we are on a horrific scene, I will call the team leader right away, and they will respond to the scene and be available for anyone in need.

After the incident, in most cases the next day, they will be at our station going over the call with those who were present or witness the scene. I don't know how many departments have it available to them, but that's probably another topic for discussion?

Comment by lutan1 on October 24, 2009 at 2:39pm

I posted the wildfire thing as a bit of a devil's advocate to add to the discussion. CIS does not always have to be about being seeing trauma. It can be be as a result of almost anything.

Whilst I'm not suing is the answer, I still beleive that CIS cannot be swept under the mat and ignored. It is real.

Comment by Sue Okenyi on October 24, 2009 at 2:35pm

Thanks for including me in this message. I have forwarded on the link to the article to chaplain friends in the fire service as well.

Comment by Rusty Mancini on October 24, 2009 at 11:22am

lutan, I understood you posted this information in a stance of being a neutral party at the start until your first reply on page 1, and you used the wildfire scenario. There have been incidents where crew bosses have made poor decisions and the out come was grave. It sounded to me at that point you were agreeing and contradicting from a neutral point of view. That's where the civil suites have came into play. I do agree with you, that the out come of this case if it's decided in favor of the firefighters, will have huge ramifications. No question there!

They are treading on dangerous ice with this case, and our sue happy world has been out of hand, and it a peers to be getting worse! All is good with the engagement of debate. Keep us inform on this one, if you can? Stay safe.

Comment by lutan1 on October 24, 2009 at 5:18am

I understand that there is different laws for different countries, but if this is to be allowed ,you think the bail outs for the mortgages companies were bad. Lets see now, how many firefighters are in this country and who have bare witness to horrific scenes? Man-----they couldn't print the money fast enough!

And Rusty, that's my point! This has HUGE ramifications, thus why I posted it up as a blog for discussion...

Comment by Rusty Mancini on October 23, 2009 at 11:18pm

I understand that there is different laws for different countries, but if this is to be allowed ,you think the bail outs for the mortgages companies were bad. Lets see now, how many firefighters are in this country and who have bare witness to horrific scenes? Man-----they couldn't print the money fast enough!

It all goes back to the fact, that it comes with the job! So tighten up your suspenders and Man up.

Comment by Michael on October 23, 2009 at 8:30pm

I am both a lawyer and a rescue volunteer (and once upon a time a volunteer and then paid ambulance officer or EMT).

This type of case is not unprecedented. In Australia we can trace it back to Chapman v Hearse (1961) where the driver at fault in a car accident was found to be liable for the fatal injuries suffered by Dr Chapman, who had stepped up to render assistance and was killed in a subsequent accident. The High Court of Australia (our equivalent to the US Supreme Court) found that a person who negligently causes an accident owes a duty to everyone who is exposed to a risk of injury including rescuers. That case was about physical injury rather than psychological injury, but the principal still applies.

In the most recent case, Sheehan and Wicks v State Rail Authority (2009) two police officers sued the State Rail Authority over the Authority's negligence that lead to a significant train disaster at Waterfall near Sydney. The police officers were first on the scene and had to step over dismembered bodies whilst trying to assess the situation and start providing assistance and rescue. In that case the police lost their claim due to specific provision in the Civil Liability Act that said people can only recover for 'nervous shock' or psychological injury if they see they actual accident happen. That provision is not in all the State laws so in some states they would have succeeded.

The English law is the same so that the police who were on duty at the Hilsborough Football tragedy could recover for their psychological injuries that were caused, ultimately, by the negligence of other police who allowed the crowd to enter the area even after it was full leading to the death of some 90+ people. Police who were on duty at the morgue and people who saw their relatives being crushed on TV could not recover again due to specific rules that applied.

In short, in Australian and English common (or case) law, a person who negligently creates a situation that exposes other to risk of foreseeable injury (including foreseeable psychological injury) owe a duty of care to that person and can be liable to pay damages if that injury occurs. In the USA there is the 'firefighters rule' that limits that liability so people engaged in hazardous activities, such as firefighting, cannot recover for the sort of normal hazards that they face, but that rule does not apply in England or Australia.

I hope that is of some interest. For more information on Australian law relating to the emergency services, see http://blog.une.edu.au/EmergencyServicesLaw/.

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