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:

  1. 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;
  2. 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?)
  3. There was a significant blind spot caused by the appliances ‘A pillar’.

Importantly in the context of this story:

  1. Driver training was inadequate for using these ultra-heavy appliances on a public road;
  2. Airservices Australia had given no directions on instructions on how to approach an intersection and ‘red light’ when travelling on a public road; and
  3. ‘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.