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michael-eburn

Associate Professor, Dr Michael Eburn (PhD), publishes provides advice on his Australian Emergency Law blog.

Links to original material:

A firefighter has sent me a copy of a NSW RFS Operational Brief relating to the fatal traffic accident involving an RFS appliance that has been the subject of earlier posts on this blog; see:

The RFS brief is below (click the image below for a full size pdf view of the document):

use-of-u-turn-and-cross-overs

The important point is the statement:

During proceedings, a number of technical points of law have been raised which has lead to some uncertainly about emergency vehicles using U-Turn and cross over facilities

The operational brief from the RFS goes on to say:

Service members are directed that cross-over points or emergency U-turn bays on motorways or highways are not to be used.  This applies to incident responses and normal traffic conditions, and even where a cross-over point is marked for use by emergency services.

NSW RFS vehicles should travel to the next exit ramp or point on the motorway and re-enter the roadway

I recognise that I only have access to the judgement and some matters may have been raised that were not dealt with there, but I actually doubt that.  And the case did not really raise ‘technical points of law’.  It was a case that depended very much on its own facts.  The law is, and was, that to enjoy an exemption:

  1. The emergency worker had to be responding to an emergency and
  2. Had to take ‘reasonable care’.

The judge applied that law in ways that, with respect, were not controversial.

As I’ve noted before this case was tragic for everyone involved.  But from a legal point of view it raised few legal issues.  The determination of whether or not the driver’s conduct was reasonable in all the circumstances is what lawyers call a ‘question of fact’ not of law. The finding that in this case, given that he was returning to collect crew rather than to respond to an emergency and given that he didn’t wait for the passing car does not set a precedent.  The judge’s ruling on the nature of what is an emergency for the purposes of the Road Rules is also not a binding precedent as it was not essential to determine the case.  The issue was always ‘did the driver take reasonable care?’

It follows that I disagree with the proposition that this case raised technical points of law that require clarification.

What is an emergency?

As for emergency vehicles, the law in NSW has always been that an RFS vehicle is only an ‘emergency vehicle’ when being used in response to an emergency (Road Rules 2014 (NSW) definition of ‘emergency vehicle’).

The judge did consider what was meant by an ‘emergency’ and reached the conclusion that this was not an emergency.  That may be described as a ‘technical’ point of law but it did not determine the case.  The exemption under the Road Rules only applies if the driver has taken ‘reasonable care’.  The judge found that the driver did not take reasonable care so whether there was an emergency, or not, the exemption would not apply.  Further, the exemption provided under the Road Rules is only an exemption from the Road Rules.  There has never been an exemption from more serious offences such as negligent or dangerous driving causing death.  So whether or not the driver would have or should have enjoyed the benefit of rule 306 of the Road Rules 2014 (NSW) it was never going to determine the outcome of this matter.  For more details on the exemption, see Australian Road Rules and emergency vehicles (July 27, 2012).

With respect to what is an emergency, in this case the judge looked at the definition set out in the State Emergency and Rescue Management Act 1989 (NSW).  That definition says (emphasis added) that an emergency is:

…  an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:

(a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or

(b) destroys or damages, or threatens to destroy or damage, property in the State, being an emergency which requires a significant and co-ordinated response.

It has been my view that this can’t be the relevant definition for the Road Rules because, on that basis, an ambulance responding to a heart attack victim is not responding to an emergency as they there is not a ‘significant and co-ordinated response’.  That is of course arguable, even one intensive care ambulance is providing a ‘significant’ response – the crew are well trained and there is much behind them to allow them to provide the response, and they are coordinated by the service that is managing competing demands, but even so it does seem a bit of a stretch to fit a single ambulance response into that definition but still we expect them to respond with lights and sirens.

Murray v McMurchy [1949] 2 DLR 442 was a Canadian case, dealing with a surgeon who was performing a caesarean section. During the procedure he observed that the patient had a tumour and further pregnancies would be life threating.  He therefore permanently sterilised her.  He informed her of what he had found, and done, when she came out from the anaesthetic. She was not pleased and sued for assault.  The doctor argued that the procedure was warranted as an emergency.  The court said (at [5]): “There are times under circumstances of emergency when both doctors and dentists must exercise their professional skill and ability without the consent which is required in the ordinary case” but for that doctrine to apply the action taken must be ‘necessary, as opposed to being convenient, for the protection of the life …’ (see [3]).  Whilst not directly applicable to driving, the judge in the RFS case found that when making the u-turn the driver was acting for ‘convenience’ ie to shorten the trip to return to collect the crew, and not out of any necessity to take action to save a life or otherwise respond to an emergency that was occurring on the other side of the road.

Discussion

With respect to the edict that:

Service members are directed that cross-over points or emergency U-turn bays on motorways or highways are not to be used.  This applies to … normal traffic conditions, and even where a cross-over point is marked for use by emergency services.

NSW RFS vehicles should travel to the next exit ramp or point on the motorway and re-enter the roadway

This is not new.   If, as noted above, the exemption under the road rules only applies when responding to an emergency, it was and is the law that the use of emergency turning areas could not be justified in ‘normal traffic’ conditions.    (See, also The NSW RFS, a U-Turn and the Pacific Highway (May 18, 2015)).

This case does not, however, suggest that such an edict is relevant during an emergency response.  One can imagine a motor vehicle accident occurs just near a u-turn bay and it would not be reasonable to ask the first responding emergency service to not make that u-turn.

The court in this case said nothing to the effect that u-turn bays should not be used.    If there was an emergency, such that response was necessary to protect life or perhaps to stop the spread of fire then it would be justified but even so, the driver must take reasonable care.  The obvious requirement is to make sure that other drivers are in fact giving way before proceeding.  If there is any lesson it is “If you are going to use a u-turn bay, make sure it is an emergency and make sure other drivers have in fact given way”.   Drivers of emergency vehicles do, and should, stop at red lights before responding to ensure that other traffic has stopped.  A similar approach in this case would have avoided this tragedy.

What follows is that if there is a belief that this case raised new or technical points of law, then it is the law itself that is not understood, not that this case raised new or controversial issues of law.  Even so the RFS is seeking urgent legal advice.  At the risk of putting myself out of contention as the person who might give that advice, I’ll offer my thoughts for free.  They are:

  1. A service such as the RFS should have a clear policy of when ‘response’ driving is permitted. It should be when a faster response is likely to significantly improve the outcome and is it necessary to save life, property or the environment.  That will require consideration of the nature of the call, time of day, traffic environment etc.  It may be appropriate for a first responder to a triple zero call to respond under lights and sirens, but once the service is ‘on scene’ the incident controller needs to consider whether an ‘urgent’ response will make a significant difference to the outcome.
  2. The faster response must be necessary, not merely convenient.
  3. When the criteria to justify response driving is not met, drivers must drive in accordance with the Australian Road Rules as adopted in your state/territory.
  4. The fundamental obligation on all drivers is not to crash. Crashing an emergency service vehicle creates another emergency, delays the response to the first event and causes more trauma. People may die in floods, fires and other events but more people die in car accidents.  Drivers should be reminded that no matter what they are responding to, the most important objective is not to crash.

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