Associate Professor, Dr Michael Eburn (PhD), publishes additional information relating to Section 128 of the Rural Fires Act on his Australian Emergency Law blog.
Links to original material:
I’ve been asked this a couple of times so I thought it warrants its own post. This again deals with the fatal collision involving an RFS vehicle where the driver stands convicted of negligent driving causing death; see Further prosecution over fatal RFS accident (August 17, 2016). A correspondent asks:
Could you please explain why Clause 128 of the Rural Fires act did not apply and what this finding means for the value of Clause 128.
Section 128(1) of the Rural Fires Act 1987 (NSW) says:
A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.
The definition of ‘protected person or body’ in s 128(2) includes the Commissioner of the RFS and ‘any member of the Service’. So why could the driver in this case not rely on it? It should be noted that it was not argued that s 128 applied so presumably neither counsel for the Crown nor for the accused thought it was relevant. There are many reasons to support that view.
First, section 128 of the Rural Fires Act is referring to civil liability, that is the obligation to pay compensation. These sections are not intended to extend to criminal liability. In Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades)  NSWIRComm 356 the court had to consider whether s 78 of the Fire Brigades Act 1989 (NSW) extended to a criminal prosecution under the Occupational Health and Safety Act 1983 (NSW). Section 78 used very similar words to s 128 of the RFS Act. Like the RFS Act it exempted any member from liability ‘if the matter or thing was done in good faith for the purposes of executing this or any other Act’ (see  of the judgment). Boland J (at ) said:
- The combination of words “action, liability, claim or demand” are more likely to be associated with civil proceedings and not criminal proceedings;
- In more recent times, it has become recognised that the term “action” was not appropriate to describe criminal proceedings: …
- There was no case brought to the attention of the Court where the words “action, liability, claim or demand” had been held to grant immunity from criminal liability. This is despite the fact that the words have appeared in exemption from liability provisions in UK statutes for at least 150 years and in Australian statutes for at least 120 years:
He came (at ) to the ‘tentative’ view that the Act did not provide ‘a general immunity from criminal liability’ for a variety of reasons. Ultimately he did not have to decide that issue so that case, being a single judge of the Industrial Court of NSW is not a ‘binding’ precedent but it is persuasive that this provision does not extend to criminal prosecution.
This case was a criminal prosecution so on the basis of this decision the section would not appear to apply.
Second, these immunity provisions have been considered before when dealing with motor accident cases. The leading case on the issue was before the High Court of Australia back in 1961 – Board of Fire Commissioners of NSW v Ardouin (1961) 109 CLR 105. In that case there was a collision between a fire appliance and a motorcycle. The relevant provision there was s 46 of the Fire Brigades Act 1909 (NSW) which provided that ‘the Board, the chief officer, or an officer of the Board, exercising any powers conferred by the Act or the by-laws, shall not be liable for any damage caused in the bona fide exercise of such powers’ (, Dixon CJ). Dixon CJ went onto say:
… s. 46 it does not cover the use of the roadway by fire brigade vehicles for the purpose of proceeding to a fire … When s. 46 speaks of the bona fide exercise of the Board’s powers it appears to me to be referring primarily to the exercise of powers which of their nature will involve interferences with persons or property… [The] exercise of statutory power to do what would otherwise be illegal acts… it is not, however, expressed in terms which make it applicable to the doing of things in the course of performing the functions of the Board, which are of an ordinary character involving no invasion of private rights and requiring no special authority.
Driving to the scene of the fire, even under lights and sirens, was not a specific function of the Brigade and did not involve any action that involved an invasion of private rights and so was not the sort of conduct s 46 was intended to apply.
Kitto J (at ) said:
To drive a vehicle on a public street, for the purpose of dealing with a fire or for any other purpose, needs no grant of power… and accordingly damage caused by an officer of the Board in driving on a public street is not damage caused in the exercise of a power conferred by [the Act]. It is caused in the exercise of the right of way which anyone may exercise in virtue of the public character of the highway.
Windeyer J (at ) said:
No special power is conferred by the Act and none is needed to enable members of a fire brigade to go to a fire or to enable a fireman to drive a fire engine upon a highway to the place of a fire. But, said the appellant, there is a power conferred by the Act to disregard speed limits and traffic regulations. But only by what I think is a mistaken use of language can such exemptions from rules that apply to other persons be described, in this context, as conferring powers. A person who avails himself of an immunity does not in such a case as this exercise a power.
He went on to say (at ):
… where the section applies, it protects the person it refers to from liability for damage resulting from acts which are done in good faith and directly in the exercise of a power that the statute conferred and whether they are done skilfully or negligently. In other words, an officer expressly empowered to do something can decide, not only that it is to be done, but how it is to be done – and his actions, directions and decision cannot, if bona fide, be later canvassed before a jury on the ground that they were imprudent or that what was done was done in a negligent manner. The powers to which s. 46 relates are powers that may often have to be exercised by the officer in control on the spot in an emergency, according to his judgment, and without his being restrained by considering what other persons might perhaps think about the matter afterwards.
There is no specific power in the RFS Act to drive an appliance nor is such a power required (see also particular Stephens v Stephens (1970) 92 WN (NSW) 810). Section 128 of the RFS Act is directed to the use of specific powers in that Act – eg s 22A Power to remove persons or obstacles and s 23 Power to enter premises.
Ardouin’s case is still a leading authority on the interpretation of these types of clauses, not just in road traffic cases but to make the point that the courts view these very strictly and limit their application to the narrowest scope possible. As Gummow J said in Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532 (at 541) these provisions protect ‘the interests of a statutory authority which is given privileges in the nature of a monopoly for provision of a public service, at the expense of what otherwise would be individual justiciable rights’. Denying the rights of a citizen is something that should only be done with care and clear words so liability exclusion clauses ‘should be strictly construed’ (see Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades)  NSWIRComm 356,  and the many cases cited there, including Ardouin’s case).
Finding that s 128 does not apply to driving makes sense for another reason. Everyone contributes to the Compulsory Third Party insurance scheme. This scheme creates a pool of money to help meet the inevitable costs of road accidents. We could reduce the road toll to zero by not have roads or cars but it’s not a price anyone is willing to pay. So we all contribute to the CTP scheme and when a person is injured, the scheme meets various medical and other costs – see Motor Accidents Compensation Act 1999 (NSW). RFS vehicles don’t have to be registered (Road Transport (Vehicle Registration) Regulation 2007 (NSW) Schedule 1, cl 121) but even so they are covered by the CTP scheme (Motor Accidents Compensation Act 1999 (NSW) ss 33 and 39(3)). The CTP scheme is a scheme of indemnity (Motor Accidents Compensation Act 1999 (NSW) s 10) so it guarantees that the driver at fault is not personally liable to meet the cost of damages. It follows that is s 128 did apply to civil liability for motor accidents, a person injured in a collision with an emergency vehicle would not be able to draw on the pool of money created to compensate people injured in accidents, and it would make no difference to the driver who would not be paying those damages in any event. Such a rule would simply be unfair. It is for this reason that general volunteer liability protection does not apply where a volunteer injures someone whilst driving – Civil Liability Act 2002 (NSW) s 65.
Finally, s 128 only applies where the action was taken ‘in good faith for the purpose of executing any provision (other than section 33) of this or any other Act’. There would be a real question in this case whether or not the act of commencing, and completing, the u-turn was done in good faith. Remember that the driver was relying on the ‘emergency’ provisions to make a u-turn in an emergency turning area and when using the red/blue warning lights. But there was no emergency. He was returning to collect his crew. The judge found that he failed to stop because ‘it was easier for him to keep the momentum going rather than stop and go back into first gear’. This was not a balanced decision of ‘a person’s life is at risk, if I do x I create a certain risk; if I do y I create a certain risk. On balance x is better than y but even so the risk occurs and harm is done’. That’s a good faith decision that may cause harm. That was not the case here.
The mere presence of negligence does not mean an act was not done in good faith (Board of Fire Commissioners v. Rowland (1960) SR (NSW) 322) but good faith requires more than ‘honest ineptitude’ it requires a ‘genuine attempt to perform the function correctly, that is to say that the function should not be performed without caring whether or not it be properly performed’ (Mid Density Developments Pty Limited v Rockdale Municipal Council  FCA 408). Remember again that this u-turn, on the findings of the judge, was not done in an emergency yet was relying on the exemptions only granted in an emergency. The matter was not canvassed in court so we can’t know all the arguments that may have been presented but, given the findings of the trial judge, it would have been possible that the judge would have found an absence of ‘good faith’.
So what’s the value of s 128?
In reality it’s a feel good provision. It’s there to provide some reassurance but those sections are rarely relied on and when they are they are the last step in the process. In nearly every case where they have been relied upon courts have found that there is no liability anyway. Compare the trial judge’s decision in Electro Optic Systems Pty Ltd v The State of New South Wales; West & West v The State of New South Wales  ACTSC 184 with the Court of Appeal in Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales  ACTCA 45 (see ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires (November 3, 2014)). The trial judge found that there had been negligence by the RFS and this caused the ultimate damage and he would have found the state of NSW liable but for s 128. The Court of Appeal in a damning ruling explained why the trial judge was wrong to have found negligence and so they would have found that there was no liability even without s 128. The decision of the Court of Appeal was consistent with the way other cases have dealt with these matters.
I have analyzed these types of provisions in some detail in my book (Emergency Law (Federation Press, 4th ed, 2013) and pointed out that most of them don’t actually do anything. They’re just there to make you feel better.
Whilst some of these conclusions could still be arguable, in the right case, it can be inferred that no-one thought this was the right case. What we can conclude is that the law appears to be:
- A clause such as the Rural Fires Act 1989 (NSW) s 128(1) provides protection from civil liability, not criminal liability.
- It does not apply to the use of an emergency vehicle on the road. It only applies where the power in question is a particular power vested in the officer or service to take action that without that express power, would be an illegal interference with persons or property. Examples of relevant powers can be found in the Rural Fires Act 1989 (NSW) ss 22A and 23.
- The fact that indemnity doesn’t apply on the road ensures those injured in a motor vehicle accident receive compensation under the motor accidents compulsory third party insurance scheme; compensation for which the sober driver of a registered and insured vehicle is not personally liable for in any event. To apply s 128 in those cases would deny the injured compensation but make no difference to the driver at fault.