My colleague Geoff Cary has passed on a link to a story appearing in today’s Sydney Morning Herald (online): ‘RFS volunteer to fight fatal crash charges’.
The gist of the story is that the volunteer had been attending a motor vehicle accident on the F3, or Sydney to Newcastle, freeway. It appears that the response was completed and the driver did a U-turn, presumably to return to the RFS station when he was involved in a collision that killed one person and injured another. According to the paper he’s been “charged with four offences, including dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm”. The other charges are “negligent driving occasioning death and not make u-turn with safety”.
We are told that the driver is pleading not guilty so we can infer that the facts are not simple or straightforward. We don’t know where the accident happened, the circumstances in which it happened, who could see what, who was travelling at what speed or anything else that would allow us to make any judgement of the accused’s guilt or innocence.
We can make some observations on the law. As previously discussed the Road Rules 2008 (NSW) (and their equivalent in each state and territory) give exemptions for the drivers of emergency vehicles for offences such as ‘not make u-turn with safety’ (presumably Road Rules 2008 (NSW) ss 37 ‘Beginning a U-turn’ or 38 ‘Giving way when making a U-turn’). More serious offences are not contained in the Road Rules so the exemption would not apply. The serious offences are probably:
• Dangerous driving occasioning death – Crimes Act 1900 (NSW) s 52A(1) (maximum penalty 10 years imprisonment);
• Dangerous driving occasioning grievous bodily harm – Crimes Act 1900 (NSW) s 52A(2) (maximum penalty 7 years imprisonment);
• Negligent driving occasioning death – Road Transport (Safety And Traffic Management) Act 1999 (NSW) s 42 (maximum penalty $3300, imprisonment for 18 months or both).
(It should be noted that these penalties are the maximum not mandatory. If convicted the court would take into account all the circumstances of the accident and the accused’s personal circumstances including his standing as a volunteer fire fighter when determining the ultimate penalty).
As I’ve noted before, for the exemption under the Road Rules to apply the driver must be taking reasonable care, have red/blue lights or siren activated and it must be reasonable, in the circumstances for the exemption to apply (Road Rules 2008 (NSW) ss 306). If the response was over and he was returning to the station then it would seem none of those criteria would be met even if the exemption did apply to these offences.
In any civil action for damages it will be the Government that will be liable. Although RFS vehicles do not need to be registered (Road Transport (Vehicle Registration) Act 1997 (NSW) s 16 and Road Transport (Vehicle Registration) Regulation 2007 (NSW) – Schedule 1, Part 2, cl 12) they are insured by the Nominal Defendant, a statutory authority created to meet the liability for accidents caused by unidentified, uninsured or unregistered vehicles including those that do not need to be registered (Motor Accidents Compensation Act 1999 (NSW) s 33). Normally, the Nominal Defendant can sue the driver of uninsured, unregistered motor vehicle for any damages that it has to pay to a person injured in a motor vehicle accident but that is not the case, if as here, the vehicle does not need to be registered (Motor Accidents Compensation Act 1999 (NSW) s 39). Accordingly to the extent (if any) that the volunteer was a ‘driver at fault’ the liability for damages will be met by the nominal defendant, not by him.
Criminal penalties are different. There is no vicarious liability for criminal penalties so if he is ordered to pay a fine, or worse, it will be up to him to face that penalty. Conviction of these offences can also lead to a loss of licence and if that were to happen it would not just be a loss of permission to drive a fire truck but a loss of permission to drive any vehicle.
That’s the ‘black letter’ lawyer response. Of course none of that even begins to capture the true extent of this tragedy. The death of one person, the injuries both physical and emotional to another and the personal trauma that this volunteer must go through are unimaginable. We can only hope that they are all supported by their family and friends and by the RFS.
To reiterate, we cannot make any judgement as to rights or wrongs, guilt or innocence, of this case. We’ll have to wait for a court to hear the evidence and determine the verdict in due course, but my sympathy goes to everyone involved.
Michael Eburn
4 April 2013
Australian Emergency Law 
Hi Michael,
As you say we will need to wait to hear the full details to better understand what happened. However, just because this appliance was returning to station does not mean that the incident was over. It may mean this appliance was not required and had been released. Given the size of the incident it may be that this appliance was facing the ‘wrong’ way on the freeway and needed to u-turn. I have been to a number of incidents where the appliance I was on was not required but still had blue/red lights activated (for safety) while we cleared the scene. Would this still not be classed as responding in relation to the exemptions? I have also been at scenes where I have almost been hit by sightseeing motorists despite being stood next to a stationary fire appliance with all lights activated as they looked at the incident rather than concentrate on their driving. Obviously there is much more to this tragic story.
Cheers Matt
Matt, all I’ve got to go on is the report from the SMH and it says he was “returning from an emergency call out” and “he performed an illegal U-turn” (though we should add, given he’s pleading Not Guilty, it is alleged he performed an illegal U-turn). We don’t know whether it was because his appliance was facing the wrong way on the freeway or it was easier to get into the shed. Putting that aside, and turning to your question, rule 306 says it applies if:
We can imagine that if the “appliance was facing the ‘wrong’ way on the freeway and needed to u-turn” and put the red/blue lights on and took reasonable care then the rule could apply and that may be his argument.
It’s always difficult to say the driver took ‘reasonable care’ if there was in fact a collision, not impossible but difficult hence whenever I’m talking to responders my pithy key message is ‘you can do whatever you like provided you don’t crash’ because once you crash, then prima facie the driver was not taking reasonable care. I say that knowing full well that there are an infinite number of possible circumstances and the oncoming driver may be distracted by the sights and drama of the accident, but the reasonable driver looks out for the inattentive and the dangerous driver etc so even if the accident is not ‘your fault’ it’s still hard to say you weren’t taking reasonable care to avoid the other driver. As I say there are an infinite number of possibilities, and it’s not the case that you can’t show that the driver was taking reasonable care if there was a crash, but it is difficult.
I’ve received an email from a correspondent regarding this accident. He says:
As I’ve discussed earlier, in NSW an emergency vehicle is a vehicle driven by “a member of a … rural fire brigade … providing transport in the course of an emergency”. Arguably if it was not proceeding to an even then it’s not in the course of an emergency, equally arguably an emergency runs its course from start to finish and returning to the station is still ‘in the course of an emergency’. That will be a matter for the Magistrate or Judge.
With respect to the U-Turn bays it is, by coincidence that I have been working on the manuscript to the 4th ed of Emergency Law. In the draft manuscript I have written:
In the context of this case that may give the driver a defence to the allegation of an illegal u-turn if he has been charged with the offence of making a u-turn contrary to a no u-turn sign (Road Rules 2008 (NSW) s 39). It won’t help if the alleged offence was contrary to rule 37 (“A driver must not begin a U-turn unless: (a) the driver has a clear view of any approaching traffic, and (b) the driver can safely make the U-turn without unreasonably obstructing the free movement of traffic”) or rule 38 (“A driver making a U-turn must give way to all vehicles and pedestrians”). The newspaper article simply says he’s been charged with “not make u-turn with safety” and that doesn’t direct us to the specific offence alleged.
Let us also remember this driver is innocent until his guilt is established beyond reasonable doubt and we cannot know how that will progress. Let us also remember how hard this must be for him and everyone else involved. Everything that’s said here does not presume to know the details but to discuss only the general legal principles involved.
Im glad you acknowledge your response to responders is pithy Michael, because as you well know you cannot “do whatever you like”
Not sure what the situation is in NSW, but here in Vic there are no exemptions from the road traffic act, you can still b charged, as you acknowledge in your article.
i do enjoy your blogs, but as a general observation, I am concerned a lot of your driving questions come from volunteers.
It is admirable that they seek further clarification on these matters, but a damning indictment on the driver training they receive from their respective services
Bruce, as you say there is virtually no exemption from the provisions of the Road Safety Act 1986 (Vic) (there is an exemption from the Fatigue Management Requirements, see s 191ZZ but that’s not relevant to this discussion) nor is there an exemption from the provisions of the Crimes Act 1958 (Vic). As in all the states there is the exemption from the Road Safety Road Rules 2009 (Vic) (s 306).
Hi Bruce,
It would be valid to make comments on the driver training. The concept of “driving safely” is something that I hope would be well understood, by most. However, a lot of the questions arise from the lack of clarity, as to the legal framework. Perhaps, there should be more training in this area.
As to the nature of this tragic accident. This will no doubt become the focus of a legal case. So I would not seek to comment on it. Except to say that my heart, and sympathy, goes out to all those who have been affected by this tragedy.
If any good has come from this. I have been reminded of how dangerous those U-turn bays can be. I will make a point of avoiding them in future.
RFS vehicles are subject to the same safety rules as the rest of us. They are supposed to be saving lives not killing people. I believe the RFS needs to weed out the cowboys on an adventure who get carried away with the excitement of driving the big fire truck with the flashing lights – and I believe they are failing miserably. Look at what happened to an innocent motorcyclist on the Putty Road, Howes Valley on 3 January 2013. The RFS does save lives and there are many brave members serving the community but it is also a boy’s with big toys club and needs to held responsible for the reckless and stupid actions of some of their members.
I’ve approved this comment in the interest of free speech and avoiding censorship but I am concerned about the tone. We have no reason to think that the accident this subject of the original post, or any other, was caused by ‘cowboys’ or by reckless or stupid conduct. We can get into a philosophical debate about whether road crash incidents are ever ‘accidents’ as there is always human decision making involved, but, putting that aside, I for one would suggest that there are accidents, people of good will, trying to do the right thing, make mistakes with sometimes fatal consequences. I don’t know the full facts of any of these cases so I do not want to judge the drivers, nor should anyone else.
I’m not sure in what way the RFS should be held accountable for the actions of its drivers other than in ways it already is. If an RFS driver is the driver at fault, an innocent third party can seek compensation against the Nominal Defendant (ie the government) that acts as the Third Party insurer for RFS trucks. The injured driver is in exactly the same position as any other injured driver and the RFS is liable, through its insurers, to pay damages just as any other owner of a car driven by the driver at fault. As the original post shows the driver can be charged with a criminal offence and in the right circumstances, so could the RFS but the RFS is no more criminally liable for the actions of its drivers than any other employer/owner who lets someone drive their car.
In terms of not taking responsibility for training and encouraging drivers to drive safely, there is no reason given as to why this author thinks they are failing miserably or what he or should would have them do differently. It’s true RFS vehicles are subject to (nearly) the same safety rules as everyone else, but just because their are accidents involving RFS trucks is no more evidence of systemic failure than the fact that there are motor accidents involving all types of vehicles. It would be silly to think RFS (or ambulance or police, or garbage or private) vehicles will never be involved in accidents, sometimes fatal ones. That’s why these cases are indeed such a tragedy.
Hi Jazzy,
This is an incredibly late reply. Though as a member of the service it is difficult to defend it from within. Certainly, on an anecdotal level, I have rarely encountered the aforementioned cowboys during my experience within the RFS. The responsibility which a driver has for the safety of their crew (not to mention the general public) ways heavily on most drivers.
I should however point out that the two accident locations sighted. The Putty Rd at Howes Valley, and emergency turning bays on the M1 (formerly F3), are notoriously dangerous roads. So they are a poor sample on which to base a premise. Sadly, accidents on the Putty Rd are a common occurrence.
Benjamin RE: Jazzy, again another LATE reply, Jazzy does have a point. I have been in the NSW RFS for more then 10 years, and while there are many volunteers who do the job admirably, sadly the “cowboy mentality’ certainly exists within the service. Unfortunately, while you employ everyday people to fulfil a public service, you will get these types and it is virtually impossible to remove them once they are a member, so in essence, while I do not approve of her tone, I do agree that the RFS needs to pay attention to this and discipline these people if and where possible.
As with a previous comment “I’ve approved this comment in the interest of free speech and avoiding censorship but I am concerned about the tone” or the content. In particular we know much more about this case now than when this original post was written but I don’t think we can infer that the driver had a ‘cowboy mentality’. As for ‘discipline’ does that really help? I note that in sentencing the driver in this accident, the trial judge noted that he was now employed by the RFS. I commend the RFS for actually supporting him and recognising that there was a tragic, criminal mistake, but that doesn’t deny the defendant’s inherent worth or the contribution he can continue to make.
Having said that people do become overwhelmed and lose focus when driving large trucks with lights and sirens and focus on the task rather than safety. That needs to be addressed but I’m not sure ‘discipline’ is they way to do it.