M. Eburn

Seat belts in an ambulance – Victoria

In Ambulance, Driving and Road Rules on September 17, 2014 at 8:42 pm

This question comes from a Victorian paramedic

Relating to the use of Patient restraints/Seatbelts (for Safety purposes, not relating to Mental health issues….), is there an obligation for Paramedics to insist on the use of Seatbelts by a Patient being Transported? Is there an onus on the Driver, if a Patient or Child is not appropriately restrained? It is my understanding that the driver of a vehicle is liable for the seatbelt wearing (or lack thereof) of ANY passenger (regardless of age) unless the vehicle is a bus with more than 12 seats. Whilst my employer has a policy to utilise the provided seatbelts as fitted to the Ambulance Stretcher (or the approved Paediatric Harness that can be fitted), this is not The Law. There is a seeming reluctance to utilise the approved harness’ (both adult and paediatric), but as I understand it, there is no specific exemption applying to Ambulance Services (and specifically Paramedics) from the requirement to wear Seatbelt.

Would there be a liability for the driver if a Passenger (Colleague) or patient were not restrained?

The general rule is, of course, that everyone has to wear a seat belt or, in the case of small children, in a child restraint. Where the passenger is 16 or older, the obligation is on both the passenger and the driver; if the passenger is under 16, the obligation is upon the driver (Road Safety Road Rules 2009 (Vic) rr 265 and 266).

There are, however, many exemptions to these rules, for example it is no offence not to wear a seat belt if the car is, lawfully, not fitted with a seatbelt (r 267(1A)). For the purposes of the emergency services, rules 267(5) and (6) says:

(5) A person is exempt from wearing a seatbelt if—
(a) the person is a passenger in or on a police vehicle, emergency vehicle or enforcement vehicle; and
(b) either—
(i) if the vehicle has 2 or more rows of seats —the person is not in the front row of seats or there is not a seating position available for the person in another row of seats; or
(ii) if the vehicle is a police vehicle and has a caged, or other secured, area designed for the carriage of passengers—the person occupies a seating position in that area.
(6) A person is exempt from wearing a seatbelt if he or she is providing or receiving medical treatment of an urgent and necessary nature while in or on a vehicle.

“Emergency vehicle” includes an ambulance.

It follows that a passenger in the front passenger seat of an ambulance (eg the relative of the patient) would be expected to wear a seatbelt if we assume that they could be sitting in the back. If the front seat is the only seat available they wouldn’t need to wear a seatbelt but of course it would be prudent to require them to do so.

As for the patient, then they are exempt if they are ‘receiving medical treatment of an urgent and necessary nature’, as is the treating paramedics. I don’t imagine any court or police officer would quibble with the suggestion that a person being transported on an ambulance stretcher meets this requirement even if the reality is that their treatment is not ‘urgent’. The mere fact that their condition is such that they are being transported in an ambulance would I’m sure be sufficient.

That doesn’t mean one shouldn’t wear a seatbelt, only that there is no offence committed if the seat belt is not worn. In the event of an accident a person would seek compensation under the Accident Compensation Act 1985 (Vic). A claim for compensation can be reduced due to contributory negligent (Wrongs Act 1958 (Vic) s 26). If a person has available to them a seat belt that they chose not to wear, that may reduce any claim for compensation, in fact in New South Wales fail to wear a seat belt, contrary to the regulations, is specifically considered contributory negligence (Motor Accidents Act 1988 (NSW) s 74(2)(c)). If the regulations do not require the seat belt to be worn (as discussed above) then the automatic deduction won’t apply but that does not mean a court could not find that a person did contribute to their injuries if they didn’t wear an available seat belt and there was no good reason not to.

Conclusions
1. It is true that the driver is required to ensure that all passengers who are required to wear a seat belt are wearing a seat belt. If the passenger is aged 16 or over, the passenger also commits an offence if they don’t wear a seat belt.

2. There is in fact specific exemptions applying to Ambulance Services regarding the requirement to wear Seatbelt. A passenger need not wear a seat belt in an ambulance provided they are not in the front passenger seat unless there are no other seats available. Both the patient, and the paramedic providing ‘urgent and necessary’ medical are not required to wear a seat belt.

The use of unmanned aerial vehicles (drones) by Queensland rural fire brigades

In Fire, Legislation and plans on September 12, 2014 at 2:18 pm

I’ve received a request for information from a member of a Queensland rural fire brigade.  The details came in a letter that is somewhat too long, and too technical, to put here in full, so I’ll summarise the issue as I understand it.  I’m sure my correspondent will get back to me if I’ve misunderstood anything.

The gist of the issue is that this brigade want to use a ‘Remote Piloted Aerial System’ (colloquially, a drone) to get fire ground information.  The drone weighs less than 2kg and meets the Civil Aviation Safety Authority’s definition of a ‘small’ drone.   The QFES Commissioner has issued a standing order (‘Engagement and Operation of RPA or UAVs in Support of Emergency Operations’, Document number SO-Q-OM-4.28, 1 August 2014) that is directed to QFES, the SES and Rural Fire Service Queensland, to the effect that drones can’t be used anywhere on the fire ground without extensive approval from the IC up to the State Air Desk and operators have to comply with requirements to have a ‘UAV Controller’s certificate’ which I’m told costs $160 to obtain. I’m told they would also need an Operators Certificate and a Pilot’s certificate and that would add a further $9800 to the costs.

On the other hand, the operator of a small drone that is used for sport or recreation is effectively unregulated.  The QFES standing order says that in their view the use of a drone on a fire ground does not meet that requirement and so the various licences and certificates are required.

My correspondent asks ‘can QFES usurp CASA’s federal role of controlling all airspace in Queensland’ and as members of a rural fire brigade they are not part of QFES (see Status of Queensland Rural Fire Brigades, September 10, 2014) so are they bound by the standing order?

First let me say that the CASA regulations are complex and area of expert knowledge which I don’t have so I can’t go and verify all the various requirements. I will assume that it is correct that an operator would require ‘an Operators Certificate ($4600) a Controllers Certificate ($160?) and a Pilots Certificate ($5200)’ (but see RPAS Training and Solutions ‘CASR 101 – Are you flying your UAV legally?’ accessed 12 September 2014).

Second the regulation of airspace is a matter of federal law, so the Civil Aviation Act 1988 and its regulations are Commonwealth, not state law.  Where a state law is inconsistent with a valid Commonwealth law, the Commonwealth law prevails (Australian Constitution s 109).  In short the Civil Aviation Safety Regulation ‘trumps’ the Queensland Fire and Emergency Services Act.   QFES can impose obligations upon its members and those operating near a fire ground above the CASA requirements, but it cannot relax or waive the CASA requirements.

Rule 101.235 of the Civil Aviation Safety Regulations 1998 (Cth) applies to ‘the operation of a large UAV; and the operation of a small UAV for purposes other than sport or recreation.’  As my correspondent says

Unfortunately again, there was no distinction made for the middle ground between operating for ‘sport or recreation’ and ‘commercial’. That middle ground is occupied by the service sector where probably the best public use can be made with RPAS in emergency services such as SES, Rural Fire etc.

It’s true; the rules provide for only two cases, a UAV used ‘for sport or recreation’ and all other uses.   Either the UAV is being use for ‘sport or recreation’ or it is not.  I think there can be no doubt that the use of a UAV by a fire brigade in order to obtain fire ground intelligence is not use for ‘sport or recreation’ and so all the CASA rules must apply.

Can QFES limit the use of UAV’s on the fire ground?  The answer has to be ‘yes’.  Section 83 of the Fire and Emergency Services Act 1990 (Qld) relates to the powers of the first officer and other rural fire officers at the scene of a fire. It says, at subsection 4,  ‘Any person exercising a power or discharging a function under this section must comply with any code of practice and with any direction of the commissioner’.     I have no doubt that a standing order directed to QFES, Queensland SES and ‘Rural Fire Service Queensland’ is such a direction.  Further, the Commissioner and an authorised fire officer ‘may take any reasonable measure— to protect persons, property or the environment from danger or potential danger caused by a fire or a hazardous materials emergency’ (s 53).  That has to include a power to protect other air operators who are working above a fire (see also Work Health and Safety Act 2011 (Qld)).

In my view the order that limits the use of the drone, determines how it is to be approved etc is not inconsistent with the CASA rules, that is one can comply with both at the same time and whilst CASA may intend to regulate the use of airspace, QFES has the role of regulating safety on the fire ground so although they overlap, QFES is not impermissibly moving into areas that are intended to be the sole preserve of Commonwealth regulation (see Ex parte McLean (1930) 43 CLR 472 at 483 (Dixon J); Momcilovic v The Queen [2011] HCA 34, [238]-[262] (Gummow J), [314]-[348] (Hayne J)).

I was asked to give my:

… opinion of this attempt by a State authority to impose blunt control over legitimate aspirations for volunteers prepared to risk their lives firefighting, but expecting the best possible leadership in the process.

I will not buy into the debate of whether this is an ‘attempt by a State authority to impose blunt control’ or whether the desire to use the drone is ‘legitimate aspirations’.  That would get into a debate about the merits of the policy which I’m not prepared to do.    What I can do is say:

  1. The deregulation of the use of small drones only applies to those that are used ‘for sport or recreation’. The Commissioner is correct, in my view, to conclude that the use of a drone on a fire ground is not a use ‘for sport or recreation’. If that is correct (and I’m sure it is) then all the CASA rules apply.  That has nothing to do with the Commissioner and is not the product of the Commissioner’s standing order but the CASA regulations.
  2. The Commissioner can issue a standing order directed to QFES, the SES and rural fire brigades and that standing order must be complied with (Fire and Emergency Service Act 1990 (Qld) s 83).
  3. The Commissioner can also give those directions as part of his or her general responsibilities to ensure safety during fire fighting and other operations. (Fire and Emergency Services Act 1990 (Qld) s 53; Work Health and Safety Act 2011 (Qld)).

Status of Queensland Rural Fire Brigades

In Fire, Legislation and plans on September 10, 2014 at 4:15 pm

The web page of the Rural Fire Brigades Association Queensland Inc. is reporting that the Queensland State Government has accepted legal advice to the effect that Queensland’s rural fire brigades are not part of the Queensland Fire and Emergency Service.  They have posted four issues that they ‘demand’ the QFES Commissioner respond to.    I’m not the QFES Commissioner and do not purport to speak on his behalf, but I’ll have a go.

 1. Clear legal definition of what is a Rural Fire Brigade, who constitutes it and what powers and responsibilities it exercises.

A rural fire brigade is ‘a group of persons’ who have been registered with the QFES Commissioner (Fire and Emergency Services Act 1990 (Qld) s 79).     Who constitutes it is the people that seek registration of the Brigade.  The Brigade would remain constituted by the operation of its roles.  A Brigade could be constituted by a group of individuals, an incorporate entity, a local council or anyone else who wants to seek registration.

What responsibilities or powers it exercise are those responsibilities determined by the Commissioner (s 82).   One of the things the Commissioner must do is identify the area where the brigade is in charge of fire fighting operations (s 82).  When working in that area, the first officer of a rural brigade has all the same powers as an authorised officer of the QFES even though the first officer is not a member of the QFES.  The power of the first officer may be exercised by anyone acting under that officer’s direction and where the brigade first officer is not present, the first officer’s powers may be exercised by the senior brigade member (s 83).

2. Clear legal definition of the relationship between QFES, Rural Fire Brigades and the SES.
According to the Fire and Emergency Services Act 1990 (Qld) the QFES is made up of the Commissioner and Fire Service Officers (s 8A). Fire Service Officers are persons employed by the Commissioner pursuant to s 25 of the Act (see s 3 and Schedule 6). It is axiomatic that volunteer fire fighters are not employed so they are not part of the QFES.

Notwithstanding that a rural fire brigade and its members are not part of QFES they are subject to significant direction and control.  The Commissioner of QFES is ‘The commissioner is responsible for the efficiency of rural fire brigades and may provide training and other assistance to them’ (s 85). A brigade may make rules but the rules must not be inconsistent with the Act and must be approved by the Commissioner (s 80).  A rural fire brigade must elect a first officer and such other officers as the brigade thinks necessary but the elections must be held in accordance with the Commissioner’s directions (s 81).  Despite being elected a person only holds office for the period specified by the Commissioner and he or she can be removed by the Commissioner and the Commissioner may disqualify a person from holding office (s 81).  A rural fire brigade has such functions as the Commissioner may determine (s 82).  The Commissioner may, but is not required to, provide equipment to a rural fire brigade or provide a subsidy to purchase equipment.  Any equipment provided or subsidised by the Commissioner remains the property of the State (s 84).

So can we answer the question?  Yes I think we can.  The Act begins by providing for the appointment of a Commissioner (s 5).   The Commissioner is to manage QFES, the SES and to perform any other function given under the Act (s 7A).   So the Commissioner, an individual appointed by the Governor-in-Council has a number of functions.  Along with fire service officers he or she forms the Queensland Fire and Emergency Service and he or she is to manage that service.   He or she is also to manage the SES and ES Units (ss 129-147D) and he or she is to exercise the authority described, above, with respect to rural fire brigades.

The fact that rural fire brigades is subject to the direction and control of the Commissioner does not mean they are part of the QFES.  We can describe the relationship as three services, all lead by the same Commissioner, but not the same service.

QFES3. A re-writing of the Rural Fire Brigade Manual, all Operations Doctrines, Standing Orders and Incident Management protocols reflecting the true position of Rural Fire Brigades and the QFES.

I make not comment on this.

4. Amendments to the Fire and Emergency Services Act 1990, current as at 01/07/2014 to incorporate Rural Fire Volunteers and truly reflect the role that Rural Fire Brigades and Volunteers undertake.

Be careful what you wish for.   As it is the Volunteer brigades are their own entity albeit subject to direction and control from the QFES Commissioner.  If the Act was changed, if for example they became part of QFES they may lose much of their local identity that has been the hallmark of volunteer brigades throughout their history.   Being part of QFES may create a more responsive ‘all hazards’ agency and breakdown barriers between volunteers and paid staff and may open ‘volunteer to career’ channels but it does not necessarily come without a cost.  As QFES brigades may be expected to respond outside their own area and may be under more control.  Do all brigades, or their members, think moves such as the move from the Bush Fires Act 1949 (NSW) to the Rural Fires Act 1997 (NSW) was a universal benefit?  Maybe it was or maybe it wasn’t I’m not sure but if I was advising the Rural Fire Brigades Association Queensland Inc. I would want them to consider what actually is the problem, because their powers are pretty clear (s 83) so how do they want to be incorporated more into the QFES, and why?  There may be very good reasons to want changes to the Act, but they’re not obvious.

See also:

More on the Queensland Road Rules (November 26, 2012)

Malone inquiry into Queensland Rural Fire Service and volunteer protection (April 20, 2013)

A further review of the Malone Inquiry into the Queensland Rural Fire Brigades (June 11, 2013)

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