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QUAKESTurkey and New Zealand

OLYMPICSLondon and Sochi

THE STRATEGIC VOIDThe dominance of short-term tactics and constant scrutiny

SOCIAL MEDIACan you believe your eyes?

PLUS � Munitions blasts in Cyprus and Brazzaville

� Fire Service and the law � France’s crisis management centre

� Field training for NGOs � Rescue South Africa � From the frontline � Air Force assistance overseas � Mapping and GIS in disasters

CRISIS | RESPONSE V O L : 8 | I S S U E : 1 W W W . C R I S I S - R E S P O N S E . C O M J O U R N A L

+

SOCIAL MEDIACan you believe your eyes?

CRISIS | RESPONSE+

commentSpace mapping .......................................48Alois A Hirschmugl describes how new technology was tested during the response to fl oods in Pakistan in 2010

Social hazard resources .........................50Communication devices and multiple platform streams can be harnessed to act as force multipliers in crisis response, say Silas W Smith, Matthew Williams and Ian Portelli

The role of public health ........................54Raphael M Barishansky and Audrey Mazurek describe how public health emergency preparedness has developed in the last decade

In Depth

The times they are a changin’ .................56Mike Hall shares his thoughts on how and why today’s Fire Service is evolving, and what outside pressures are shaping these changes

Spreading information ............................58In the wake of the London Metropolitan Police Service report into the 2011 riots, Anna Averkiou looks at how social media is changing the way crises are managed

Training for transport emergencies .........60Training available for people who prepare for, and respond to, passenger transport emergency incidents is discussed by Willie Baker

Communication plans .............................62Regina Phelps outlines how to ensure effective communication in an emergency

We need global disaster codes ...............63Ed Blakely presents a strong argument for the introduction of international human settlement codes of practice, similar to today’s building codes, in order to encourage safer communities and to discourage building in unsuitable areas

Events

Protecting our heritage ...........................64Terror challenges in Asia ........................65Extreme medicine ...................................66Diary dates .............................................67Maritime CBRN .......................................68

Regular sections

Worshipful Company of Firefi ghters ........69From the unknown ..................................70EU civil protection ...................................72From the frontline ...................................74

Partners

Intensive testing for safe hands ..............25Firefi ghters’ protective gloves are the last item of Personal Protective Equipment that they don, but are one of the most important factors that affect their ability to operate effectively, says Gore & Associates (UK) Ltd

Providing essential support ....................44The British Red Cross is gearing up for the Olympics in London and Dorset this summer, working with London 2012 organisers and statutory authorities to provide support in places that need it most, while maintaining its existing services

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OUR COVER story is an interview with

Philippe Baumard who sounds a global warning that strategic governance is losing touch with reality, that command has become a matter of: “Mastering the fi gures, not the facts; the compliance, not the meaning.” He says individuals at all levels are discouraged from using their creative judgement or from questioning core beliefs; and those who dare to do so are denounced. Constant and immediate scrutiny have led to the adoption of: “The most rapidly visible approach.”

Baumard’s theories are expressed in universal terms, but seem to be backed up by specifi c examples in this issue. On p56 Mike Hall questions how the safety domain is affecting the Fire Service, saying health and safety legislation, coroners’ inquests and offi cial inquiries are: “Blessed with the religious clarity of hindsight,” and have little regard for the realities and pressures of emergency management.

On p10 Michael Eburn casts a legal eye over a recent high-profi le fatal incident, concluding that the incident commanders in question operated correctly and complied with their employers’ stated policy. But, he says: “If we want rescuers to exercise imagination, fl exibility and adaptability, then the training and doctrine of the organisation has to empower and authorise them to assess outcomes and, if necessary, depart from policy.”

Let’s be clear: the examples highlighted in this issue are drawn from the UK, but the problem is a global one; we are not questioning the constant need to improve safety and standards, nor the wisdom of learning from past incidents.

But unintended consequences are snaring fi rst responders, who sometimes appear hamstrung, stifl ed by this universal strategic void and confounded by an abundance of restrictive edicts, unclear legislation, contradictory directives, media scrutiny and an enthusiastic litigious system. If this were a classic Gordian knot, we could slice through the red tape. Reality may prove more challenging.

Cover story: Strategy rethinkRolf images / Dreamstime / LOCOG / GEA

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CRISIS | RESPONSE+ 3VOL 7 ISSUE 4

A Lopez CarresiICDO

News .........................................................4

Comment

Business and resilient cities .....................8Peter Gruetter says it is essential for the private sector to engage with the United Nations to reduce disaster risks

Health and safety law .............................10Michael Eburn casts a legal eye over recent incidents that highlight the diffi culties faced by fi re commanders

Preventing state failure ...........................14Dave Sloggett investigates how targeting overseas aid can help to avert state failure and its associated crises

Incident analysis

Restoring power ......................................16Emily Hough speaks to the Manager of the Vasilikos Power Station in Cyprus, which suffered extensive damage when a nearby munitions depot exploded in July

Congo munitions blast ............................20Two hundred people were killed and up to 6,000 buildings were damaged or destroyed in Brazzaville in a munitions storage explosion in March, writes Emily Hough

Learning from Turkey’s experience .........22Cem Behar and Zeynep Gül Ünal provide valuable lessons learnt from the two quakes that struck Turkey in 2011

Reviewing earthquake response .............26Mike Hall presents fi ndings from the Fire Service review into last year’s earthquakes in New Zealand

Interviews

What next for USAR? ..............................28Professor Efraim Kramer tells Hilary Phillips it is time to review the optimal delivery of cross-border urban search and rescue

Collective intelligence .............................30Emily Hough talks to Bruno Maestracci, Head of France’s Operational Centre for Crisis Management, COGIC

Profi les

Heavy lifters ............................................32Dave Sloggett highlights the use of C-17 aircraft in British Royal Air Force humanitarian activities overseas

Civil protection ........................................34To mark its 40th Anniversary, Alexander Kuvshinov charts the history of the International Civil Defence Organisation

Features

Securing London 2012 ............................36Michael Fuller describes his design and implementation of the National Olympic Security Co-ordination centre that will be used in London this summer

Preparing for Sochi .................................40Lina Kolesnikova scrutinises preparations for the 2014 Winter Olympic Games, in Sochi, Russia

Moving out of the classroom ...................46Alex Lopez Carresi argues that the only way to provide aid workers with the skills to deal with diffi cult situations in the fi eld is to train them under realistic conditions

Editor in ChiefEmily Houghemily@crisis-response.com

Head of SalesMark Lawrencemark@crisis-response.com

Design and ProductionTim Baggaleywww.graphicviolence.co.uk

Director Colin Simpsoncolin.simpson@crisis-response.com

DirectorPeter Stephensonpeter.stephenson@crisis-response.com

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SubscriptionsCrisis Response Journal is published quarterlyAvailable by subscription only: £100; US$180; €145Special association discounts, corporate and multiple subscription rates are available, please contact us for further detailsTel: +44 (0)1344 753370subs@fi re.org.ukBack issuesExisting subscribers: £25 (US$45; €36) per issueNon subscribers: £40 (US$72; €58) per issueTel: +44 (0)1344 753370backissues@fi re.org.uk

Published by FireNet International LtdOld Wokingham RoadCrowthorne, Berkshire RG45 6AWUnited KingdomTel: +44 (0)1344 753370mail@fi re.org.uk www.crisis-response.comwww.fi re.org.uk

COPYRIGHT FireNet International Ltd 2012 Articles published in Crisis Response Journal may not be reproduced in any form without the prior written permission of the Editor in ChiefPrinted in England by Gemini Press LtdISSN 1745-8633

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CRISIS | RESPONSE+10 VOL 8 ISSUE 1CRISIS | RESPONSE+10 VOL 8 ISSUE 1

Fire Service: Legislation, safety

In 2011, SherIff DeSmonD J LeSLIe, holding a Fatal Accidents Inquiry (FAI)1 into the death of Alison Hume in Scotland

was critical of the actions of several incident commanders from the Strathclyde Fire and Rescue Service (FRS). The incident commanders had vetoed plans by firefighters to attempt a difficult rescue from a disused coal mine. Although the victim’s injuries were said to be ‘survivable’ the local police and fire authorities took five-and-a-half hours to bring her to the surface. As a consequence of the delay, she died.

This article will review the findings of the FAI and the relevant UK law to demonstrate the difficulties facing commanders in the emergency services context. It will then consider, given recent developments in workplace health and safety law, how this situation might be governed in Australia.

In the Strathclyde incident, the victim had been walking home at night on July 25, 2008. When she failed to arrive home, her family searched and heard her calling from the bottom of a disused mine shaft.

The FRS received the emergency call at 02:12hrs. On arrival, a firefighter was lowered down the shaft using equipment provided for safe working at height and arrangements were being made to lower a paramedic, who was untrained in rope techniques. A senior officer arrived, took on the role of incident commander, and ordered the firefighters and paramedic to withdraw. The FRS had specifically ordered that safe working at height equipment was not suitable for rescue. Where rope rescue was required, the Strathclyde Mountain Rescue Team was to be called.

More senior officers came to the scene and took over the role of incident commander and each affirmed the decision that the FRS would not attempt a rescue. The Mountain Rescue

Team arrived at 05:50hrs. At 07:42hrs, as the victim was being brought to the surface, the effects of hypothermia and her chest injuries caused a cardiac arrest. She was pronounced dead at 09:30hrs on July 26. Her injuries were described as: “Survivable, had prompt action had been taken to rescue her.”

Legislative requirementsUnder the UK 1974 Health and Safety at Work etc Act, the incident commanders were obliged ‘to take reasonable care for the health and safety of ... persons who may be affected by (their) ... acts or omissions’. That duty was owed both to the firefighters and the victim awaiting rescue. Regardless of whether the decision to veto rescue is called an act or an omission, it was a decision that affected the victim, so the risk posed to her needed to be considered.

The matter was further complicated by corporate manslaughter law. The UK 2007 Corporate Homicide and Corporate Manslaughter Act says a corporation commits the offence of corporate manslaughter if the management of a corporation’s activities represents a breach of a legal duty and causes death. The UK police and emergency services are largely exempt from the Act’s provisions, save for duties owed to staff. The result is the FRS could have been prosecuted for corporate manslaughter if one of the firefighters had died, but not for the death of the victim herself.

The offence of corporate manslaughter is committed only by the organisation, so the incident commanders, as individuals, could not be charged with that offence. The incident commanders, however, could be charged with the offence of negligent manslaughter. This is established where the defendant owes a duty of care to the victim, there is a breach of duty in circumstances that can be described as

gross negligence and the breach causes, or substantially contributes, towards the death of the victim2. In describing gross negligence Lord Aitken said: “For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied ‘reckless’ most nearly covers the case3.”

Negligent manslaughter is an offence created by the common (or judge-made) law rather than having been enacted by Parliament. It follows that the Strathclyde incident commanders could have been charged with negligent manslaughter if anyone died and there were allegations of gross negligence. The FRS, on the other hand, could only be charged if one of the firefighters was killed.

The Sheriff noted that experienced firefighters had conducted their own risk assessment and were willing to modify their equipment and practices to attempt a rescue. Regrettably, had the firefighters proceeded and been killed or injured, their consent would have been no defence to proceedings for manslaughter or for breach of the Health and Safety at Work etc Act.

Said Sheriff Leslie at the FAI: “For a rescue to be achieved, some imagination, flexibility, and adaptability were necessary. There was clearly a balance to be struck between the interests and safety of the rescuers, and those of the casualty they were there to rescue. The core consideration of a risk assessment is a question of whether or not the risks to be taken are proportionate to the benefits gained.”

A proper risk assessment should have considered the risk to the victim as well as the risks to firefighters, but it had to be done within the confines of the law. The Sheriff did not expressly consider the provisions or obligations in the Health and Safety at Work

Emergency services and health and safetymichael eburn examines a recent incident in the UK that shows the difficulties facing commanders with regards to health and safety, as well as looking at how the situation might be governed in Australia, following the introduction of new legislation

legal comment

If we want rescuers to exercise imagination,

flexibility and adaptability, then the

training and doctrine of the organisation

has to empower and authorise them to assess

outcomes and, if necessary, depart from policy

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CRISIS | RESPONSE+12 VOL 8 ISSUE 1

etc Act. The law required the commanders to consider the risk to the victim (something the Sheriff said they did not do) but it clearly weighted the balance in favour of protecting the safety of the firefighter employees. Further, a risk assessment had been done – the FRS had assessed the use of safety at heights equipment in a rescue, and determined that the risk exceeded the benefit. In making that decision, personnel must have understood that where rescue is required, lives are in danger. The outcome of the risk assessment process was a policy directive that the Strathclyde Mountain Rescue Team was to be called.

A risk assessment should not merely consider the risks that staff and others face, but balance those risks against the benefits to be obtained. That was not done at Strathclyde; as the Sheriff said: “It is difficult not to form the view that (their) … approach to risk assessment was to effectively eliminate risk. I did not think that a process of risk assessment was adopted whereby risks were identified and those risks accommodated to achieve the central purpose of the attendance of Strathclyde Fire and Rescue Service.”

Following this event and the FAI, the Fire Services Inspectorate conducted its own inquiry into the management of this rescue and how the FRS had applied the lessons learned from the event.4 The Inspectorate did not revisit the findings of the Sheriff, but rather looked to ensure that the necessary lessons had been learned and applied. Although critical of the FRS for not having planned for this type of rescue and for various practices and procedures adopted by the service, the Inspectorate understood the concerns of the incident commanders and their need to apply the procedures that their employer mandated.

The Chief Inspector of Fire and Rescue Authorities, Sir Kenneth Knight, warned himself that: “... there is an obvious responsibility on those challenging operational decisions to recognise that they are reviewing the decision in an unpressured environment and with the benefit of hindsight.” Although the benefit of hindsight could identify areas for improvement, it also had to recognise the realities that the operational decision had to make judgements “in very unusual and dangerous circumstances.”

As for the policies of the FRS, these: “… exist for a reason. They have been thought through and have been approved by senior managers and in some cases by fire authorities. Strathclyde Fire and Rescue incident commanders had a duty to take into account the service’s operational guidance

and, in other circumstances, would have been held to account had they not done so.”

This year, the Australian States and Territories will pass uniform work health and safety law based on a model Act prepared by Safe Work Australia.5 As the latest example of workplace health and safety law, we can use the Australian model law to consider whether developments in health and safety practice would lead to a different outcome or have regulators confirmed that the priority remains staff safety.

Under the new Australian law a ‘person conducting a business or undertaking’ must, ‘so far as is reasonably practicable’ ensure the health and safety of workers. The legislation also says they must also ensure ‘that the health and safety of other persons is not put at risk from work carried out as part of the

conduct of the business or undertaking’. The new law will not require that all

workplaces are risk-free. The duties imposed are duties to eliminate, or if that is not possible, minimise risks only so far as that is reasonably practicable. In deciding what is reasonably practicable, regard must be paid to the likelihood of the hazard or the risk occurring, the degree of harm that might result from the hazard or the risk, the availability and suitability of ways to eliminate or minimise the risk, the cost associated with eliminating or minimising the risk and whether the cost is grossly disproportionate to the risk. What is reasonable must take into account the nature of the task, including the inherent risks to workers (which, in Australia, will include volunteers).

A risk assessment has to consider the objectives of the ‘business or undertaking’. In a life-saving context it may be appropriate to expose staff to risks that would not be appropriate if the task was property protection. Various steps can, and are, taken to minimise the risks, including the provision of the necessary tools, the issue of Personal Protective Equipment (PPE), training and doctrine. Where a residual risk remains it is appropriate to ask: “Is the objective worth the

risk?” And often, it is. Turning out to a house fire carries a residual risk to firefighters, but if it is a risk that has been minimised as far as is reasonably practical, it is worth turning out to obtain the benefits of suppressing the fire rather than allowing it to spread.

In assessing risk it is, however, important to understand what the objective of the undertaking is. Emergency service organisations are assigned particular roles and specialised units are available to undertake specialised tasks, whether that is marine, confined space, flood, road crash or vertical rescue. The role of the Strathclyde Fire and Rescue Service was not clear. In the FAI, the Sheriff said: “… the Fire (Additional Function) (Scotland) Order 2005, specifically mandates the Fire and Rescue Service to make provision for the purposes of rescuing persons where there has been a landslide, the collapse of a building, or other structure. It was a matter of argument whether or not the mine shaft constitutes a structure … In the view of the Assistant Chief Fire Officer … a mine shaft would not be considered such a structure.”

The Sheriff disagreed with this interpretation of the Assistant Chief Fire Officer and found that rescue from a mine was rescue from a structure and so it was something the FRS should have considered and planned for (particularly considering there were some 4,000 disused mines in its area of responsibility). However, if there was a misunderstanding, it was a misunderstanding by the FRS. The incident commanders had to approach their task on the basis that this sort of rescue was not in their area of training and responsibility (even if, as the Sheriff found, it was something they should have been trained and equipped to do). Although they had responded to an emergency call, they were not there to effect a rescue any more than a police officer who arrives first on scene at a fire is there to extinguish the fire. They may have been the first emergency service on scene, but they cannot be expected to disregard the fact that specialist services exist to perform specialist tasks. It is inappropriate and unacceptable to send rescuers into a confined space, off a cliff, out to sea or down a coal mine if they are not trained and equipped to perform that task; in that case the risks have not been minimised as far as it is reasonably practicable to do so.

As with the UK, at least in the Australian Capital Territory (ACT), the matter would be complicated by industrial manslaughter laws. In that jurisdiction, an offence is

When reviewing these events,

incident commanders deserve

to be judged on the basis of

the information available at

the time the decision was made

and not with the distorting

effects of hindsight bias

CRISIS | RESPONSE+ 13VOL 8 ISSUE 1

legal commentcommitted if a corporation or a senior offi cer recklessly or negligently causes the death of a ‘worker’.7 If the Strathclyde incident had occurred in the ACT, both the FRS and the incident commander could be charged with industrial manslaughter if a fi refi ghter died, but not for the death of the victim. In this jurisdiction, the legislation gives further weight to the claim that the duty to protect staff takes priority over the duty to others.

Notwithstanding our emotional reaction to the Strathclyde event, and our wish or desire that fi refi ghters be permitted to act as heroes and do whatever is required to ensure a rescue, from a legal point of view, the Strathclyde commanders took the appropriate action.

Other incidentsThe outcome at Strathclyde can be compared with the outcome following the deaths of four fi refi ghters at a warehouse fi re in 2007 at Atherstone-on-Stour, also in the UK. The exact circumstances of the deaths have not been reported, but three senior fi re offi cers, who had acted as incident commander before, during or after the deaths, have been charged with manslaughter.8 If convicted, it will be the incident commanders, not the FRS, who will face punishment, which may include imprisonment. The Strathclyde incident commanders may have been subject to criticism but they have not been charged with any offence. The family of the victim may want to sue9 but it will be the FRS that is vicariously liable for any negligence.

With hindsight we know that a fi refi ghter did descend into the shaft without complications, the land did not slip and the delay caused the victim’s death. To expect the incident commander to do anything other than apply their training in the context of their employer’s stated policy would be to ask them to substitute their judgement for that of the FRS, to disobey the express directions of their employer and to fail to co-operate with the FRS’s attempts to comply with its legal obligations, as outlined in the UK’s Health and Safety at Work etc Act.

An inherent problem in the application of work health and safety law is the use of restrictive edicts such as the one applied at Strathclyde. The direction that the safe working at heights equipment was not to be used for rescue constrained the commanders. Employees must follow the directions of their employers and this direction imposed a clear restriction on the available choices. Had they chosen to use the equipment or to act contrary to policy, and a fi refi ghter had died,

the incident commanders would have been in front of a different fatal accident inquiry having to explain why they took action that the service had expressly determined should not be taken and they, and the FRS, could be facing manslaughter charges. In the face of that clear direction, it would not be reasonable to expect the incident commanders to respond other than they did, whether they were responding in the UK in 2007 or Australia in 2012.

If we want rescuers to exercise imagination, fl exibility and adaptability, then the training and doctrine of the organisation has to empower and authorise them to assess outcomes and, if necessary, depart from policy. As the Fire Services Inspectorate said in its Report into the Galston Mine Incident : “… given the broad and ultimately un-defi nable range of incidents which the service might be called on to respond to, the best operational policies are ones which set out what can and cannot reasonably be done but which allow for intelligent and informed decision-making on the incident ground.”

Policy, training and law have to be fl exible and identify factors to be considered and how to balance different risks, and then empower commanders to make the fi nal judgement. The modern Australian law, with its focus on what is reasonably practicable and its express direction on the factors to be considered, could incorporate such fl exibility. A FRS could move away from edicts and stringent standard operating procedures, but that would require a signifi cant amount of trust in its staff and a willingness, still, to accept that there would be consequences that the community would

not like – people will still be allowed to die when the assessed risk to rescuers exceeds the likely benefi t, and fi refi ghters will die when a rescue is considered ‘worth the risk’, but an unlikely, worst case residual risk occurs. In either case, when reviewing these events, incident commanders deserve to be judged on the basis of the information available at the time the decision was made (including standing orders and service doctrine) and not with the distorting effects of ‘hindsight bias’.10

These real situations demonstrate the very real dilemmas facing incident commanders and the problems of applying work health and safety laws in the context of the emergency services. The law requires everyone, including fi refi ghters, to do what is ‘reasonable’, but that gives little guidance. Many people are in positions where they have to balance competing objectives and considerations but, unlike emergency service incident commanders, they don’t have to do it in a dynamic environment where, whatever they decide, lives hang in the balance.

Regardless of the decision-making process, if someone dies, incident commanders are going to be required to answer questions and justify their decision.

Sources

1. Sheriff Desmond J Leslie, (16 November 2011): Fatal Accident Inquiry under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 into the Death of Alison Hume [2011] FAI 51 2. Crown Prosecution Service, Homicide: Murder and Manslaughter; Gross Negligence Manslaughter, www.cps.gov.uk;3. Andrews v DPP [1937] 2 All ER 552, 556 (Lord Atkin);4. Steven Torrie, A Report to Scottish Ministers - The 2008 Galston Mine Incident (Her Majesty’s Fire Service Inspectorate, London, 2012);5. Safe Work Australia, Model Work Health and Safety Act revised draft 23 June 2011; www.safeworkaustralia.gov.au; 6. See, for example, the State Emergency and Rescue Management Act 1989 (NSW) and the supporting disaster plans;7. Crimes Act 1900 (ACT) ss 49C and 49D;8. As the matter is still before the court as Crisis Response Journal went to press, the exact circumstances of

the deaths have not been reported, but see article by Claire Ellicott (March 1, 2011): Three brigade bosses to be charged with manslaughter over deaths of four fi refi ghters in warehouse blaze, www.dailymail.co.uk/news/article-1361454/Fire-brigade-bosses-charged-manslaughter-warehouse-blaze; and the article by Steve Hayes (November 28, 2011), Atherstone fi re charges could be dropped, www.leamingtonobserver.co.uk/2011/12/05/story-Atherstone-fi re-charges-could-be-dropped-24000 9. Keith McLeod (November 21, 2011): Daughters of mineshaft tragedy woman Alison Hume plan to sue Strathclyde Fire & Rescue over her death, www.dailyrecord.co.uk/news/scottish-news/2011/11/21/daughters-of-mineshaft-tragedy-woman-alison-hume-plan-to-sue-strathclyde-fi re-rescue-over-her-death-86908-23577497;10. Lynne A Maguire and Elizabeth A Albright (2005); Can behavioural decision theory explain risk-averse fi re management decisions? Forest Ecology and Management 47, 53.

AuthorDr michael eburn is Senior Fellow with the Fenner School of Environment and Society and ANU College of Law, at the Australian National University in Canberra

■ This paper summarises the outcome of a Scottish Fatal Accident Inquiry and the law in both the UK and Australia. It cannot take the place of legal advice and necessarily skims over many issues that are relevant to the application of law to particular facts. Anything contained in here should not be relied upon to determine any action or legal position. If legal advice is required, readers should contact an appropriately licensed lawyer in their jurisdiction.