Thank you to regular correspondent Dodge for bringing this story to my attention. The story is being reported in the NT News and relates to an accident involving an Aviation Rescue and Fire Fighting (ARFF) appliance that was involved in a fatal road accident when proceeding to assist the Northern Territory Fire and Rescue Service (see Sarah Crawford, Airservices Australia to face legal action after 2011 fatal fire truck accident in Darwin’ NT News (Online), 14 January 2015).
As the paper reports this prosecution comes 18 months after a coroner’s inquiry into the accident and you can read the coroner’s findings online. The coroner , Mr Greg Cavanagh, said (at [9]):
… this fatal collision that claimed three lives was allowed to occur because of major shortcomings in the policies, operating procedures and training protocols of Airservices Australia. It appears to me that since their main business is to operate at the airport, staff were ill equipped to drive the ultra large fire vehicle in emergency conditions, at speed, with lights and sirens, on a public road. This was completely unacceptable in circumstances where they were required to do so, albeit rarely, as a result of a Memorandum of Understanding with the NT Fire Services. Tragically it took three deaths to expose the failings in their systems.
In short there was an MOU between Airservices Australia and the NT Fire Service to provide mutual assistance to each other, but this was the first time that ARFF had been asked to respond to support the civilian fire service. The fire in question was a large fire that had engaged all the NT Fire and Rescue resources so they called on ARFF to assist. It was expected that the airport fire appliances would be able to get close to the fire and use their high volume cannon to get a very large amount of water onto the fire.
Unfortunately that did not happen, as the coroner said (at [33]):
Clearly Airservices would have been able to offer much needed assistance had the crew of the Fire Tender been able to complete their journey. As it happened, the fatal collision they were involved in prevented them attending Wishart Road and in fact, diverted the resources of NTFRS to the scene of the accident.
The driver gave evidence that it was common knowledge that as he was driving an emergency vehicle he had ‘right of way’ including at a red light. He travelled through a red light and in evidence said (at [40]) ‘he was not even aware of whether or not he was proceeding through a red light since he had right of way regardless’. He could not recall any specific training to the effect that as the driver of an ARFF appliance he was exempt the operation of the relevant road rules.
All the crew of the appliance saw the oncoming vehicle but thought it would give way and they proceeded through the red light. The collision occurred with the oncoming car travelling between 80 and 100km/h whilst the fire appliance was travelling around 48km/h. Three people in the Mitsubishi were killed; there was one survivor.
The coroner found that the following factors contributed to the accident:
- The unusual shape and colour of the ARFF fire tender meant that other driver’s may not have recognised that it was an emergency service vehicle;
- Although they were activated, other drivers did not hear the siren and the warning lights were not easy to see (perhaps they are designed to be seen by pilots rather than car drivers?)
- There was a significant blind spot caused by the appliances ‘A pillar’.
Importantly in the context of this story:
- Driver training was inadequate for using these ultra-heavy appliances on a public road;
- Airservices Australia had given no directions on instructions on how to approach an intersection and ‘red light’ when travelling on a public road; and
- ‘the failure of Airservices to adequately train its staff meant that Mr Norris and his crew were all of the view that other drivers would recognise the Fire Tender as an emergency vehicle, and that affected their ability to judge the actions’ of the oncoming driver.
It’s that background that puts the NT News story into context. As we’re told, Airservices Australia is being prosecuted for breaches of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) (now repealed). Sections 16 and 17 of that Act (at least when it was made) required an employer to ‘take all reasonably practicable steps to protect the health and safety at work of the employer’s employees’ and to ensure that others ‘are not exposed to risk to their health or safety arising from the conduct of the employer’s undertaking’. The equivalent provisions are now in found in section 19 of the Work Health and Safety Act 2011 (Cth).
The essence of the prosecution will be that Airservices Australia did not take the necessary measures when it failed to train its staff on how to operate their very large, specialised vehicles in an environment that was outside their normal operating area, that is on a public street instead of an airport.
Legal issues
The appropriate defendant
The two significant legal issues to note are first that there is no suggestion that the driver is the subject of this prosecution. (He may however have been prosecuted for a traffic offence, but I have no information on that, and if that was dealt with by way of traffic infringement notice or by a plea of guilty there would be no easy to locate public record of that prosecution). The coroner said (at [71]):
This accident is not the fault of Jack Norris [the driver of the appliance] or his crew. I have no doubt that had Mr Norris been given the appropriate instruction by way of training protocols, the accident would not have occurred. Had he been trained, for example, to slow down to a speed of 20 kilometres, he and his crew would have had more time to assess the Triton as a hazard and more time to stop to avoid a collision. In failing to address those issues, Airservices has not only let down the community, and particularly the family and friends of those who have died, but also its own employees, who are clearly still deeply affected by this accident.
That finding does not bind either the police or Comcare, they could chose to prosecute the driver but it may move, nonetheless, to reassure the driver’s of emergency vehicles.
Since modern work health and safety legislation was expanded to treat volunteers as workers, volunteers have reported concern that they will be prosecuted. Whilst this driver was not a volunteer, all emergency service personnel, whether volunteer or career should be reassured that prosecution under work health and safety legislation is not automatic and a tragic outcome does not expose everyone to liability.
Exemption from the Australian Road Rules
The other issue was the question of whether or not the ARFF appliance had any exemption under the Australian Road Rules. As I have noted elsewhere on this blog, the Road Rules have a consistent provision that says that the driver of an emergency vehicle if exempt the application of the road rules provided that they are taking reasonable care and it is reasonable that the rule should not apply (see Traffic Regulations (NT) Schedule 3, clause 306). What varies from State to State and Territory is the definition of ‘emergency vehicle’.
One can understand why the ARFF firefighters may have thought they were exempt. They would be familiar with seeing NT fire appliances relying on the exemption and would no doubt, and reasonably, look at their own appliance and consider that it, too is a fire appliance or emergency vehicle. That is all understandable but is not how the law works; the law does not (but could) have a functional definition, such as ‘an emergency vehicle is a vehicle used for fighting fires or transporting the sick or injured’ but it doesn’t. Rather the law in the NT and other jurisdictions refers to who is using or controlling the vehicle. In the Northern Territory and emergency vehicle is defined in the Traffic Regulations (NT) cl 3, as:
(a) the property of the Territory and in the control of the Police Force of the Northern Territory; or
(b) the property of the Territory and in the control of the Northern Territory Fire and Rescue Service, within the meaning of the Fire and Emergency Act; or
(c) the property of the Territory and in the control of a member, under section 45 of the Emergency Management Act, of the Northern Territory Emergency Service and being used for the purposes of that Act; or
(ca) an ambulance; or
(d) the property of, or being used for the purposes of, the AFP and in the control of the AFP; or
(e) authorized as an emergency vehicle under subregulation (4).
(What is an ambulance, however, is not defined see ‘Road rules, flashing lights and remote WA‘ (November 26, 2014) and the comments to that post, and note that like WA, there is no ambulance service legislation in the NT).
Subregulation 4 allows the ‘Registrar [to]… authorise a person, or a member of a class of persons, to use a vehicle or a type of vehicle as an emergency vehicle’.
ARFF are not listed in the regulation so they did not enjoy the exemption. According to the coroner they did, after this accident, move to get the appropriate authorisation but, in the coroner’s view (at [75]), the failure to consider whether or not there was an exemption reflected:
… a general failure to ensure that policies and procedures relating to emergency driving were up to standard and a failure to focus on the issues relating to driving on public roads.
Why bother?
Why bother with this prosecution? The accident happened in 2011 and according to the Coroner (at [76]):
… Airservices Australia has responded to this tragedy in a thoughtful, thorough and determined way. The management of that organisation have been humble and willing to admit the mistakes that were made and the need for improvement. The gravity with which they view their task is reflected in the number of excellent and detailed reports commissioned on their behalf and then provided without hesitation to the inquest and interested parties. That suggests to me that the reforms I heard about in this inquest will be fully implemented…
Airservices has implemented better training and protocols for driving on a public street, and John Killeen, the operator of ‘Ambulance Visibility’ blog and a follower and contributor to this blog, was engaged to advice ARFF on improving the visibility of their appliances.
It would seem that prosecuting Airservices will not force them to change but will take money from their budget bottom line (unlike civil liability which can be covered by insurance). Like all criminal punishment however, the fine is not meant to just deter Airservices Australia but to reinforce to other agencies, public and private, of the obligation to take reasonable steps to ensure safety at work.
No doubt Airservices Australia will bring evidence of the actions it has taken to show that it appreciates the errors that were made and that they are now complying with their legal and moral obligations and the court that has to impose a sentence for the failures will take that into account in due course.
Australian Emergency Law 
Interesting read Michael (as always!).
The thing that keeps jumping out at me is there’s a mighty big difference driving one of those monsters on a public road versus the semi-controlled environment of an airport…
Indeed – this is how the coroner described the appliance – ” a 30 tonne behemoth, which can weigh several tonnes more when fully loaded with equipment and crew. It is three meters wide, making it an oversized vehicle that requires a permit to travel on public roads”. The problem was, and one can infer is the basis of the prosecution, Airservices Australia has these appliances that are specifically designed for a particular task (aviation firefighting) and that operate in what I would have thought was a controlled (not semi-controlled) environment where the other traffic is usually an aircraft and ground movements are controlled by air traffic controllers. To sign an MOU with NT Fire and Rescue committed them to operating outside that environment but with no actual thought on what that might mean. There should at least have been discussion with, if not training of, firefighters on how to respond on a public street. As the coroner said, the fact that ARFF had no exemption from the road rules did not cause the accident (see [75]) but it did reflect ‘a general failure’ to think about the implications of what they were agreeing to do.
Reblogged this on Words, By George! and commented:
Here’s an interesting story from Michael Eburn’s blog Australian Emergency Law where Airservices Australia to be prosecuted over fatal fire appliance accident in Darwin as part of their MOU with NTFRS.
I have had time to reflect on this story and it raises more questions, at least in my mind:
The driver stated that it was “common knowledge” that he had “right of way” because he was driving an emergency vehicle including at a red light. My understanding gained over 37 years experience in emergency services operations is that road users are to give way to the emergency vehicle, and that exceeding the speed limit or going through the red light is done after all due care and diligence has been carried out. The statement that they thought the oncoming vehicle would give way and of having “right of way regardless” is erroneous in my opinion. One should consider that a vehicle may not or will not give way until proven otherwise. Right of way is offered by other drivers, and cannot just be taken by the emergency vehicle operator.
There seems to be some conjecture in respect of how fast the ARFF unit was actually travelling. Was it 48kmh as stated by the crew or 70kmh as the NT News story suggests. Either way, this speed seems too fast for vehicle of that size to enter an intersection against a red light.
If the ARFF unit was deployed as a result of an MOU with the NTFRS, are they not then a de facto unit of the NTFRS tasked to provide a specific role or function that could not be provided by the NTFRS?
Could it not be argued that the ARFF unit could be covered under the Traffic Regulations (NT) as:
(e) authorized as an emergency vehicle under sub-regulation (4)?.
The warning lights on the ARFF vehicle seem to be set well back and would be difficult to see by motorists in the vicinity. It is certain that this vehicle is not purpose built for operating on public streets but rather for operating in the open expanses of airport runways and taxiways where there is little or no other traffic. Flashing lights are used on all vehicles operating on airside at airports so as they are clearly identifiable to pilots operating aircraft.
One is left wondering whether the MOU between ARFF and NTFRS was clearly thought through before its implementation. It would appear to me that the inherent risks outweigh any benefit the ARFF could provide. Did not ARFF senior managers identify the possible risks or hazards of allowing this sort of vehicle to operate on public roads. If not, why not?
While Airservices Australia have responded to this incident in a thoughtful, thorough and determined way, in my opinion this should have been addressed before the incident occurred rather than as a result of it. Did Airservices Australia fully understand or appreciate the implications of the agreement they were entering into with NTFRS?
George, much of what you have raised is in fact the point of the prosecution, but first to some general questions you raised:
1. With respect to the speed, the newspaper says that they were travelling at 70km/h. The crew said they did not know how fast they were travelling. The appliance was caught on CCTV some 700m before the intersection and police calculated at that time it was doing in excess of 70km/h. The police investigation of the accident concluded ‘the Fire Tender was likely to be travelling at
2. a speed of 48 kilometres per hour as it breached the intersection’ (see coroner’s findings, [60]). So I accept it was not ‘70kmh as the NT News story suggests’ but 48km/h as assessed by the police crash investigators.
3. With respect to your understanding of the road rules, that was the problem. The driver of this appliance was ‘an experienced fire fighter who had worked with Airservices for 23 years’ (coroner’s findings at [23]) but that did not give him experience of driving under emergency conditions on a public street. Remember this was the first time they’d been called to assist NT Fire and Rescue under the MOU. Presumably the driver’s experience was driving on an airport under very controlled conditions. So the problem was he was relying on ‘common knowledge’ but no-one had actually thought about the risk and provided any training or instruction.
4. ‘The statement that they thought the oncoming vehicle would give way and of having “right of way regardless” is erroneous’, not only in your opinion but also wrong in law and wrong as it clearly didn’t happen, with tragic consequences.
5. It is not possible to argue that just because the ARFF were responding at the request of the NTFRS vehicle that makes them an emergency vehicle. The appliance was not ‘the property of the Territory’ (it’s owned by the Commonwealth) so 3(c) can’t apply. To be authorized under sub-regulation 4 requires specific approval from the registrar and Airservices Australia had not applied for that authorization.
Finally you say “One is left wondering whether the MOU between ARFF and NTFRS was clearly thought through before its implementation” and the answer is clearly it was not and that is why it is Airservices Australia that is being prosecution. So no ARFF senior managers did not identify the possible risks or hazards of allowing this sort of vehicle to operate on public roads and beyond doubt these issues ‘should have been addressed before the incident occurred rather than as a result of it’. Clearly Airservices Australia did not fully understand or appreciate the implications of the agreement they were entering into with NTFRS and again, that is why they are being prosecuted. Their obligation was to ensure a safe work environment for their crew and not to expose others to unnecessary risk and, it is alleged and the coroner found, they failed to do so.
A correspondent had provided this further information by email:
The comments are interesting, especially with regard to travelling off-airside on public roads. It is not well known that ARFF is responsible for first response fire, rescue and medical assistance in all airport terminal and airside buildings. They do respond or travel at road-speed quite frequently over public roads surrounding the airports. Depending on the size of the airport and the ARFF station they will respond in the larger Panther appliance or a smaller urban sized fire appliance. Medical first response calls to terminals have also been increasing over the last few years. Most people don’t know that ARFF can also respond up to a kilometre away from airports following an aircraft accident and this has occurred several times around Canberra airport. An ARFF Panther was also called to assist at the Mitchell fire (which was prior to the NT accident) but this was undertaken at road-speed by arrangement with ACTFB the next day.
‘Three people in the Toyota were killed; there was one survivor’
The car involved was a Mitsubishi. Poor research.
Quite right; it was a Mitsubishi Triton. Presumably my brain saw Triton and read ‘Toyota’. It’s now corrected.
This regrettable incident raises some interesting issues, the provision of “crash gates” (light wooden structures that could be driven through without being opened), and the fact that we carried grid reference maps of the surrounding areas would to my mind reinforce the idea that in the event of an aircraft crash outside the airport boundary, the ARRF would respond as a matter of course and in such a case the response time would be a critical factor in the
event that there were any survivors. As far as travelling on public roads, my experience was that they were driven to Darwin from Adelaide and I don’t recall permits being required, or the vehicles carrying “oversize signage”,
There was also a requirement to conduct annual exercises with the combined services, namely NTFS, RAAF,
NT Ambulance, NT Police, Darwin Hospital, etc, in my experience such an exercise was carried out well off the airport at East Arm. It is certainly true that these vehicles seldom leave the airports and they are necessarily very large because of the fire fighting medium they are designed to carry. In terms of size and weight it would be reasonable to compare a crash tender to a turntable ladder as commonly used by the Metropolitan Fire Services which of necessity operate in the CBD areas. In my own experience as an instructor I always understood that the road rules did not authorise emergency vehicles to ignore the road rules. My understanding came from studying the Victorian Road Safety Act.
A. Truett Airport Fire Officer Darwin 1972 to 1974