M. Eburn

Employer’s policy and the law – entering an intersection against the red light

In Driving and Road Rules on February 9, 2016 at 11:28 am

This question comes from NSW:

I’m the driver of an emergency vehicle in NSW.  My employer has a policy that says when we are traveling under lights and sirens we must come to a complete stop at red traffic signals before proceeding through.

On a number of occasions, whilst following this policy, I have seen that the traffic travelling with the green light have seen and heard me and stopped to allow for my passage. However once they see me come to a complete stop they assume that it is ok for them to continue through the intersection. I then start to move into the intersection causing confusion for the other motorist who again brakes. My question is could I or my employer be held accountable for potentially causing an accident especially if someone is seriously injured or a death occurred  if another motorist was to collide with the vehicle who has had to suddenly brake for a second time due to my actions?

I have proposed this question with my employer and their answer is as long as I have followed their policy I’m not at fault.

The problem with any answer that says ‘as long as I have followed their policy I’m not at fault’ is that it assumes the police, a plaintiff and/or a court are ‘bound’ by the employer’s policy.  And they are not.  They are entitled to argue, or find, that the policy itself was wrong and that either generally, or in the specific circumstances, a ‘reasonable driver’ would have done something else.  An extreme example may make the point.   Assume that the stated policy is that when responding to an emergency every driver shall travel at not less than 100km/h.   An employee could comply with that policy but it wouldn’t stop them being charged when they ran someone over on a busy street.   The issue is the law, not the employer’s directives.  Now there is some relevant law there, an employee is required to obey the ‘reasonable’ directions of his or her employer and when deciding what a reasonable person in the given circumstances would do, the employer’s policy is clearly relevant.   But everyone one has to have the discretion to say ‘if I follow this policy, I’m going to kill someone, so I’m not going to do that’.   That doesn’t mean a policy that says ‘always stop at the red light’ is a poor policy, only that the assertion ‘as long as I have followed their policy I’m not at fault’ is wrong.

Could the driver or the employer ‘be held accountable for potentially causing an accident especially if someone is seriously injured or a death occurred  if another motorist was to collide with the vehicle who has had to suddenly brake for a second time due to my actions?’  It depends what you mean by ‘accountable’.

Will they be asked to ‘account’ for their actions and policy?  Clearly ‘yes’. The driver will have to explain what they did and if they relied upon a policy directive, the employer may be asked about – required to account for – the policy; why was it phrased that way? How was it intended to be applied? What training was provided? Etc.  That is being accountable or held to account.

Will the driver be liable for civil damages?  No.  Every registered vehicle, or vehicle that is not required to be registered is covered by a compulsory third party (CTP) insurance policy (Motor Vehicles (Third Party Insurance) Act 1942 (NSW)).  The CTP policy is a policy of indemnity, that is it covers 100% of the liability and the costs.  The driver has to pay nothing; the employer has to pay the annual premium.

CTP insurance only covers liability for injury or death caused to a person other than the driver at fault.  As for property damage there is likely to be, and if it’s a government operated emergency service there will be, a relevant insurance policy to pay out for property damage.  Given the driver was acting as an employee – doing their job even if not in compliance with a policy –  the employer and not the employee will be liable (Employees Liability Act 1991 (NSW) s 3; Insurance Contracts Act 1984 (Cth) s 66).

Will the driver be liable for any criminal offence?  Yes, criminal liability is personal and cannot be transferred.  If the driver commits a traffic offence that liability belongs to the driver.  An employer can also be criminally liable for aiding or encouraging a driver to commit an offence or for offences outside the traffic laws, such as offences under the Work Health and Safety Act 2011 (NSW) if their policy and training does not take reasonable steps to ensure a safe workplace.

The first part of the question was:

Could I or my employer be held accountable for potentially causing an accident especially if someone is seriously injured or a death occurred …

The answer is ‘absolutely’.   But that doesn’t address the policy, so now we can get to the actual point of the question.

Readers of this blog will be familiar with the oft quoted Australian Road Rules.  Rules 78, 79, 165 and 306 of the Road Rules 2014 (NSW) say, respectively:

78 Keeping clear of police and emergency vehicles

(1) A driver must not move into the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm…

(3) This rule applies to the driver despite any other rule of these Rules.

79 Giving way to police and emergency vehicles

(1) A driver must give way to a police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.

(2) This rule applies to the driver despite any other rule of these Rules that would otherwise require the driver of a police or emergency vehicle to give way to the driver.

For the purposes of rule 79, ‘give way’ is defined in the Dictionary that forms part of the Rules to mean:

(a) if the driver … is stopped-remain stationary until it is safe to proceed, or

(b) in any other case-slow down and, if necessary, stop to avoid a collision…

165 Stopping in an emergency etc or to comply with another rule

It is a defence to the prosecution of a driver for an offence against a provision of this Part if:

(a) the driver stops at a particular place, or in a particular way, to avoid a collision, and the driver stops for no longer than is necessary to avoid the collision…

306 Exemption for drivers of emergency vehicles

A provision of these Rules does not apply to the driver of an emergency vehicle if:

(a) in the circumstances:

(i) the driver is taking reasonable care, and

(ii) it is reasonable that the rule should not apply, and

(b) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm.

Let us take as given (ie without reference to the rules) that my correspondent is driving an emergency vehicle and that a driver is required, as a general rule, to stop at a red light and wait until the light turns green before proceeding and all drivers operate on that general assumption (ie if you have a green light you can go, if you have a red light you have to stop).

First, the general rule – if you have a green light you can go but if you have a red light you have to stop – does not apply to the driver of an emergency vehicle in the circumstances described in r 306.  Where r 306 applies the driver can proceed against the red light and should not get a traffic infringement notice (TIN) for that offence.  If he or she does get a TIN (eg due to an automated red light camera) they will have a defence to the allegation of criminal impropriety. (Despite popular belief or hope to the contrary, road traffic offences, including those dealt with by way of a TIN, are criminal offences).

But, the driver has to take reasonable care (r 306(a)(i)) and has to assume that other drivers, facing  green light, are likely to assume that they have clear passage.  That assumption cannot be justified as a matter of law, all drivers should know that not everyone obeys the traffic signals, and some people, like the drivers of emergency vehicles, have an exemption so all drivers should be on the lookout, even if they have a green light, for vehicles entering the intersection.  In Hine v O’Connor [1951] SASR 1, the Supreme Court of South Australia had to consider liability for an accident between a bus and a fire appliance where the fire appliance proceeded into an intersection contrary to a ‘stop sign’ (akin to a red light).  The court said (at 4-5 (Abbott J)):

He [the bus driver] was not, however, entitled to consider himself as having “an open road” across that intersection because a “Stop Sign” is not always obeyed by drivers of vehicles; and, as he admitted in cross-examination, he has himself had the experience of other drivers disobeying such signs … And, of course, O’Connor is presumed to know the law that fire-engines on their way to a fire, as well as other specified vehicles, are exempt from the duty of obeying such “Stop Signs.” Despite the existence of a “Stop Sign” at an intersection, it may become the duty of a reasonable driver in O’Connor’s situation to “give way” to another vehicle whose driver has disobeyed the “Stop Sign.

That obligation to ‘give way’ is reinforced by rules 78 and 79.  The driver approaching a green light must not move into the path of an emergency vehicle and must ‘slow down and, if necessary, stop to avoid a collision’ even if that means stopping at a green light and even if the general rule is that the driver facing the red light – in this case the driver of the emergency vehicle – would be expected to give way to the driver facing the green light.

But just because the driver of the emergency vehicle is not required to stop at a red light and wait for it to turn green, and just because the driver facing the green light is not to move into the path of the emergency vehicle and must give way to that vehicle, it does not mean that the driver of the emergency vehicle can just barrel into the intersection.  In another case from South Australia but this time finalised in the High Court of Australia (South Australian Ambulance Transport Inc v Wahlheim (1948) 77 CLR 215) it was said (at p 220, (Latham CJ)):

[T]he exemption of ambulances [or any emergency vehicle] from the application of the section [that would have required the driver of the ambulance to give way], while it prevents any prosecution of the driver of an ambulance for failing to comply with the section, does not entitle an ambulance to drive ahead regardless of other traffic … The driver of an ambulance must drive upon the assumption that other people will observe the rules of the road; that they will accordingly look out to their right … and that they will expect to be given the right of way by vehicles on their left. Thus the fact that … [the section requiring drivers to give way to their right] … does not apply to ambulances does not relieve the defendant of liability for negligence if in all the circumstances there was a failure to exercise due care.

So too, the exemption from the need to give way at a red light will not relieve the driver of an emergency vehicle ‘of liability for negligence if in all the circumstances there was a failure to exercise due care’.

In yet another South Australian case Patterson v McGinlay [1991] SASC 2727 the court was faced with the very fact situation that I’m asked to comment on.  In this case a police vehicle entered the intersection against a red light with flashing lights and siren operating.    There was a collision and Cox J concluded:

Both drivers were at fault… the plaintiff-appellant failed to have sufficient regard for his own safety. Emergency vehicles are not an uncommon feature on metropolitan roads. If the plaintiff chose to drive with his radio on and his window only slightly open, so that his ability to hear a siren was necessarily impaired, he was under the greater obligation, as it seems to me, to be alert to perceive at the earliest opportunity the familiar flashing light. In fact, he failed to hear the police car’s siren at all and, at an uncommonly wide intersection, he did not see the car itself until the very last moment. The police driver, for his part, was entering a carriageway of the Port Road against the red light. He should have appreciated, and probably did, that his warning signals could not guarantee him a clear passage. His failure to see the plaintiff’s car before impact was negligence of no small order.

The other judges (Chief Justice King and Justice Olsson) agreed and liability was divided 50:50 that is both drivers were equally at fault.

So what?  I’ve already said that the driver will not be liable because of CTP insurance and the doctrine of vicarious liability.  That is correct but the insurers can and do still run the cases as they are only liable if the driver is found to have been negligent.   All of the drivers in the above cases were found to have been negligent to some degree even though they were not personally liable.    Also there are offences of negligent driving (and worse) so if the driver of an emergency vehicle is negligent to the requisite degree then he or she may face a criminal prosecution, ranging from a TIN for ‘negligent driving’ to, in extreme cases, an allegation of manslaughter.  Even if the driver is not liable for civil damages, this discussion is still important.

What’s a driver to do?  This is classic risk assessment where you weigh up the chance of something happening (a collision); how bad might it be (minor to fatal) and what can you do about it?  If you travel through an intersection at 100km/h the chance of a collision is very high, it will be bad and there’s lots you could do to avoid it – slow down or stop!   So a driver of an emergency vehicle must ensure that other drivers have observed the emergency vehicle and are in fact giving way.  Does that require stopping at every red light – well that depends upon the circumstances.

The driver’s employer, a PCBU for the purposes of the Work Health and Safety Act 2011 (NSW)  has to ‘ensure, so far as is reasonably practicable, the health and safety’ of workers (the employed driver) and other affected by the PCBU’s undertaking (that is other road users with whom the emergency vehicle might collide).  To do that a PCBU should probably have in place a policy.  That policy could say:

  1. A driver must slow down and if necessary stop at every red light and only proceed when it is clear that all other vehicles have stopped in order to give way to the emergency vehicle.

Or it could say:

  1. A driver must stop at every red light and only proceed when it is clear that all other vehicles have stopped in order to give way to the emergency vehicle.

Neither is obviously unreasonable; but my correspondent says there is a risk with option 2 in that having come to a stop, other drivers who have ‘given way’ get confused so it’s not clear who is going to go.   What’s to be done about that risk?  First let us recall that none of this takes very long and the other driver has an obligation not to move into the path of the emergency vehicle (Road Rules 2014 (NSW) r 78) and must give way, that is ‘remain stationary until it is safe to proceed’ and in any event, ‘avoid a collision’ (r 79).

What if the driver of the emergency vehicle slows down, but doesn’t stop, and there is an accident?  Clearly the road was not clear and the driver was, arguably, not taking reasonable care.   What if the driver does stop, there is some hesitation and there is a collision?  If the collision is with other vehicles, but not the emergency vehicle, the driver of the emergency vehicle is not at fault – the other drivers all have an obligation to avoid each other and to give way to emergency vehicles.  If there is a collision with the emergency vehicle the fact that the driver stopped first is stronger evidence of them taking care (but not enough care if they still had a collision).

Conclusion

Let me return to the question:

My question is could I or my employer be held accountable for potentially causing an accident especially if someone is seriously injured or a death occurred  if another motorist was to collide with the vehicle who has had to suddenly brake for a second time due to my actions?

So the facts suggested are, car A stops at a green light to give way to my correspondent.  My correspondent has also stopped.  Both vehicles begin to move off but the driver of car A, seeing that my correspondent in the emergency vehicle is intending to proceed again comes to a stop and car B runs up the back of car A.   Could my correspondent or the emergency service be held ‘at fault’?  When put that way the answer is a clear ‘no’.    The decision to stop at the red light by my correspondent is both reasonable and required by law.  The action of car A is to give way. If the drive of car A begins to move off that driver is arguably failing to comply with rules 78 and 79. The driver of car B also has an obligation to give way to the emergency vehicle as well as an obligation not to run into any other car that may suddenly stop because of an engine failure, or a child or an animal on the road or for any one of a 100 reasons.  To think that car A is suddenly going to drive off, and to not pay attention to the driver of the emergency vehicle which is clearly in the intersection, would be entirely the fault of the driver of car B.    The reason my correspondent is not at fault is not because he or she complied with the policy, but because the accident is not their fault.  Other drivers have to drive to the conditions including the presence of the emergency service vehicle.

If my correspondent comes to a stop as does the driver of car A.  Both begin to drive off but car A collides with the emergency vehicle, then the driver of car A has failed to comply with the road rules (rules 78 and 79) and is clearly driving without due attention as they have seen the emergency vehicle, they know it’s there and they are required to wait and allow it to proceed.  Presumably if both vehicles have stopped and both begin to move off they can see each other and are going slowly enough that they can stop again.  In the event of a collision issues of fault may come down to who hit who where or who had the last chance to avoid the collision?

 

 

 

 

 

 

Revisiting the issue of restraining the mentally ill by NSW Paramedics

In Ambulance, Legislation and plans on February 8, 2016 at 12:17 pm

A paramedic employed by the Ambulance Service of NSW has

… just undertaken some further in house training about the use of sedation and restraint with the NSW ambulance and an issue about authority to sedate and restrain came up.  Section 20 of the NSW Mental Health Act gives ambulance officers authority to detain a person who is suffering from a mental illness and / or who is a mentally disordered person.

However we were told that we did not need to invoke Section 20 or have the patient covered by some other section such as Section 22 of the act from police or Section 19 from a medical officer, as Section 81 of the Act gives authority to persons such as an ambulance officer to sedate and / or restrain a person for the purpose of taking them to or from a mental health facility.

My reading of Section 81 is that it only applies to a “person who is authorised by the Act to be taken to and from a mental health facility”. In my understanding for a person to be authorised to be taken to and from a mental health facility some other section of the act must be in force.

I checked the Mental Health Regulations and can see nothing in them to clarify the authority. Either they are voluntary and so should probably not need sedation or some other detention order needs to be in place.  I raised this only to be told Section 81(3) gives us authority and so no other section of the act is required.

Can we indeed sedate and restrain someone who is suffering from a mental illness or mentally disorder as defined by the act purely under Section 81 or does there need to be in force a detention order under some other Section of the mental Health Act such as Section 19, 20 or 22?

The Mental Health Act 2007 (NSW) s 81 says, relevantly:

(1)  The persons listed below may take to or from a mental health facility or another health facility any person who is authorised by this Act to be taken, or transferred, to or from the facility …

(b)  an ambulance officer…

(2)  A person authorised by this Act to take a person to or from a mental health facility or other health facility may:

(a)  use reasonable force in exercising functions under this section or any other provision of this Act applying this section, and

(b)  restrain the person in any way that is reasonably necessary in the circumstances.

(3)  A person may be sedated, by a person authorised by law to administer the sedative, for the purpose of being taken to or from a mental health facility or other health facility under this Act if it is necessary to do so to enable the person to be taken safely to or from the facility.

Section 81 gives an ambulance officer the power to transport a person to hospital and to use sedation but only if the transport is ‘authorised by this Act’.  My correspondent is correct, s 81 does not give an ambulance officer the power to authorise a person to be taken; that is ‘for a person to be authorised to be taken to and from a mental health facility some other section of the act must be in force’.

A number of people may authorise the detention of a person for examination and treatment.  Section 18 says:

A person may be detained in a declared mental health facility in the following circumstances:

(a)  on a mental health certificate given by a medical practitioner or accredited person (see section 19),

(b)  after being brought to the facility by an ambulance officer (see section 20),

(c)  after being apprehended by a police officer (see section 22),

(d)  after an order for an examination and an examination or observation by a medical practitioner or accredited person (see section 23),

(e)  on the order of a Magistrate or bail officer (see section 24),

(f)  after a transfer from another health facility (see section 25),

(g)  on a written request made to the authorised medical officer by a designated carer, the principal care provider, a relative or friend of the person (see section 26).

Without going through those sections it can be seen that if a medical practitioner, an accredited person, a police officer, a Magistrate or a bail officer who complies with the relevant subsections authorises a person’s detention, then an ambulance officer can rely on s 81 to transport the person and, if necessary, sedate them.

There is also detention by an ambulance officer.  Section 20 says:

An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.

It follows that if an ambulance officer (that is ‘a member of staff of the NSW Health Service who is authorised by the Secretary to exercise functions of an ambulance officer under this Act’ (s 4)) ‘believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’ then that is authority for the person to be ‘taken … to … the facility …’ That would then allow the ambulance officer, relying on s 81, to use force and, if necessary, sedation.

I’m not sure what impact that has.  There is no formal invocation of s 20 required.  If a paramedic is treating a person and forms the beliefs required in s 20 then they are authorised by s 81 to treat and transport the person to a mental health facility.  If they don’t have the necessary belief then presumably there is no need to transport a person to a mental health facility.

Conclusion

My correspondent is correct.  Section 81 says what an ambulance officer is authorised to do when transporting a person where the transport is authorised by another section of the Act.  In the context of this discussion, the relevant section is s 20 and if the ambulance officer ‘believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’ then that is sufficient authority.

Driving overweight vehicles in the NSW emergency services

In Driving and Road Rules, SES on February 8, 2016 at 11:57 am

This question comes from a NSW volunteer who says:

I am a volunteer member of a State Emergency Service. My query relates to the driving of overloaded vehicles. A vehicle I am required to drive has a GVM of 4495 kgs. Without driver or passengers it weighs 4315kgs. Throw in a driver, passengers and gear and the weight of the vehicle will exceed its GVM.

I hold a heavy vehicle driver’s licence so I presume in driving an overweight vehicle I am guilty of some type of offence, and it would not be helpful were I to be involved in a serious collision, becoming an aggravating factor especially if someone were killed or injured.

My question specifically relates to a car licence holder driving said vehicle. Which offences would they be committing?

In New South Wales the Road Transport Act 2013 (NSW) s 4 defines a “heavy vehicle” as a ‘motor vehicle or trailer that has a GVM of more than 4.5 tonnes’ (see also Heavy Vehicle National Law (NSW) s 6).   The GVM is the ‘gross vehicle mass’ and is:

… the maximum loaded mass of the vehicle:

(a) as specified by the vehicle’s manufacturer, or

(b) as specified by the Authority if:

(i) the manufacturer has not specified a maximum loaded mass, or

(ii) the manufacturer cannot be identified, or

(iii) the vehicle has been modified to the extent that the manufacturer’s specification is no longer appropriate.

A “light vehicle” is any vehicle other than a heavy vehicle.

Heavy vehicles are governed by the Heavy Vehicle National Law.  Section 96(1) says:

A person must not drive on a road a heavy vehicle that (together with its load) does not, or whose components do not, comply with the mass requirements applying to the vehicle.

What are the ‘mass requirements’ is more complex than just the GVM – see Heavy Vehicle (Mass, Dimension and Loading) National Regulation (NSW) Sch 1.  I won’t try to understand the technical issues so let me, for the sake of the argument, assume that GVM is the relevant mass requirement.

The critical issue is that s 96(1) doesn’t make it an offence because the person holds a particular licence, anyone who drives a heavy vehicle that does not comply with the mass requirements commits an offence.

According to my correspondent, however, the vehicle is required to drive has a GVM of 4495kgs or 4.495 tonnes.  That’s close to, but not more than, 4.5 tonnes so the vehicle is a ‘light vehicle’.

The Road Transport (General) Regulation 2013 (NSW) r 50C says:

A person must not drive, or cause to be driven, along a road a light vehicle or light combination that contravenes any of the dimension, mass or load restraint requirements imposed by this Part otherwise than in accordance with a permit issued under clause 50N.

A motor lorry is:

… any motor vehicle (whether or not in combination with any trailer) that is constructed principally for the conveyance of goods or merchandise or for the conveyance of any kind of materials used in any trade, business or industry, or for use in any work other than the conveyance of persons, but does not include a motor bike or a tractor. (Road Transport (General) Regulation 2013 (NSW) r 3).

That would include an SES rescue truck.  Regulation 50F says

A person must not drive a motor lorry on a road if the total mass of the motor lorry exceeds the lorry’s mass limit.

The mass limit is the GVM (r 50H).

So if the vehicle exceeds its GVM the driver commits an offence.  Again it doesn’t matter what licence they hold; that is it does not matter, as my correspondent suggests it might, whether or not the driver holds a heavy vehicle driver’s licence.  Anyone who drives a vehicle that exceeds the ‘mass requirements’ commits an offence.

It should be noted that there can be exemptions given during an emergency (r 50Y).  That has to be a particular exemption given in response to need in a particular emergency.  It will not apply to the day to day operations of the SES or other emergency services

My correspondent’s ‘question specifically relates to a car licence holder driving said vehicle. Which offences would they be committing?’  The answer is that they would be committing an offence contrary to the Road Transport (General) Regulation 2013 (NSW) r 50C which carries a maximum of penalty of 30 penalty units or $3300.

My correspondent also noted that driving an overweight vehicle ‘would not be helpful were I to be involved in a serious collision, becoming an aggravating factor especially if someone were killed or injured’.  That is indeed true – see Suspended jail sentence for firefighter involved in a fatal accident (October 24, 2009) and the comments that were made in response to that post.

Finally, we most readers would now be aware, for the purposes of the Work Health and Safety Act 2011 (NSW) the term worker includes a ‘volunteer’ (s 7).  A Person Conducting a Business or Undertaking (which would include the SES) ‘must ensure, so far as is reasonably practicable, the health and safety of’ its workers (s 19).  A worker (including a volunteer, s 34) must also ‘take reasonable care for his or her own health and safety’ and the safety of others (s 28).   If the SES management knowingly permit or encourage or require a member to drive an overweight vehicle, and if it can be shown that this creates a danger to the workers or others, then that may be an offence under the WHS Act.  Equally a member who drives a vehicle knowing that it is overweight, again if it can be shown that this creates a danger, may also be guilty of an offence under the WHS Act.

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