EP-08

Liability of the Emergency Planning Committee and Members

AUST  Hendry advises AS 3745-2010 ‘Planning for emergencies in facilities’ contains legal obligations that concern people involved in emergency preparedness (as members of the Emergency Planning Committee and Emergency Control Organisation) and involves the statement regarding legal liability.

/ INDEMNIFIED BY EMPLOYER
Clause 2.1.3 in AS 3745-2002 states the following: “Both the Emergency Planning Committee and the Emergency Control Organisation personnel shall be indemnified by their employer against civil liability resulting from workplace emergency assessment, education, fire safety training sessions, periodic exercises or fire evacuation of a building, where the personnel act in good faith and in the course of their emergency control duties.”

These words have been deleted from the 2010 version of AS 3745 and new wording in Clauses 2.5 and 5.5 has been inserted: “Facility owners, managers, occupiers and employers should obtain professional advice on the level of indemnity provided to Emergency Planning Committee members. The Emergency Planning Committee members should be advised of the level of indemnity provided.”

Clause 5.5 – AS 3745 specifies that: “Facility owners, managers, occupiers and employers should obtain professional advice on the level of indemnity provided to Emergency Control Organisation members. The Emergency Control Organisation members should be advised of the level of indemnity provided.”

/ UNDERSTAND THE INDEMNITY ISSUE
This apparent lessening of the indemnity provided in the amended AS 3745 to the Emergency Planning Committee and Emergency Control Organisation needs to be considered in the following light:

  • The Emergency Planning Committee issues the Emergency Plan and is responsible for outcomes from its implementation
  • The responsibility of safety in facilities comes from both State and Federal legislation for Occupational Health and Safety and Work Health Safety (for employers to their employees) and common law (from those in control of facilities, to those who obtain access)
  • The indemnity of members of the Emergency Planning Committee and Emergency Control Organisation will generally fall into two categories:
  • Those who are acting as employees, whose liability will almost certainly be covered by their employers under the respondent superior doctrine, for negligent acts or omissions by their employees in the course of employment
  • Those, perhaps property owners, who are not employees, whose liability will be determined by the nature of the negligent act or omission in preparing the emergency plan
  • The liability or indemnity of members of the Emergency Control Organisation, who follow the emergency plan, will be determined in the same way
  • Indemnity does not flow from AS 3745. AS 3745 is not law, but a guide to best practice
  • Any past statements made by the Emergency Response Procedures under the AS 3745-2002 Standard would have had the same weight as statements made under the current As 3745- 2010 standard, with liability or indemnity of an individual determined by their status as an employee, and then the nature of the negligent act or omission.

Employers who provide indemnity to their employees or property owners who retain liability should ensure that the emergency plan does not expose them to liability. They can do this by:

  • Seeking legal advice (as suggested by AS3745-2010); and
  • Using a respected Emergency Plan contractor who has a responsibility to provide documentation that addresses the liability in a professional manner

/ SUMMARY
AS 3745-2010 has not really changed the status of liability of individuals involved in emergency prevention. Employers and property managers should obtain legal advice regarding the emergency plan required by AS 3745 or use a respected contractor as they would for any specialised work with legal liability. The unique mix of membership of the Emergency Planning Committee (typically building owners, agents, occupiers, lessors, employers) may mean it contains individuals who are not employees and so should ensure their liability is not increased by using the same measures.However, the majority of Emergency Planning Committee and Emergency Control Organisation members will be employees who will be indemnified by their employer.

Hendry can assist your Emergency Planning Committee and Emergency Control Organisation in upgrading the emergency management plan of your facility to AS 3745-2010, while limiting the legal liability of owners, employers and occupants.

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