This question comes from a volunteer with one of the NSW services. As the question relates to driving, and not the specific rules of any service, I have ‘deidentified’ them. I will refer to NSW law as that is my correspondent’s state but the answer will also be similar across the nation. My correspondent writes:
I was on duty … this weekend, and was having a casual conversation … about driver training/vehicle orientation (or lack thereof) at present, and the liabilities for drivers of vehicles.
I mentioned that in ADF, we have a “blue book,” which is pocket sized log book in which ADF accredited instructors will sign us off to drive a vehicle after we have been oriented to the vehicle and taken on a familiarisation drive, and this happens even if the vehicle is the same as your personal vehicle.
My question: If I drive [a service] owned vehicle, without having received an organisational orientation/training, and I have an accident, can I be held liable? Even if the vehicle is the same as my normal everyday vehicle?
The answer is ‘absolutely you can be held liable, and it makes no difference wither you have received organisational orientation/training or not’; but before everyone starts panicking, let me explain.
If the vehicle is involved in an accident there are two types of damage – personal injury and property damage.
This is injury to any person other than the driver ‘at fault’. All registered vehicles, and vehicles that are not required to be registered (such as some RFS vehicles) are covered by a Compulsory Third Party Insurance policy. This is what you pay for when you register your car and in NSW is colloquially known as the ‘Green Slip’. The terms of a CTP policy are set out in the Motor Accidents Compensation Act 1999 (NSW). A CTP policy says:
The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle… (s 10).
The policy is a policy of indemnity (s 16). Unlike your comprehensive car insurance which has a maximum value, a CTP policy will cover all the costs associated with any claim.
So any registered vehicle carries a CTP policy and the owner and driver is indemnified against any losses associated with personal injury, but it is still an ‘at fault’ claim. If the injured person needs to claim more than initial treatment expenses (Parts 3.2 and 3.3) they need to make a motor accidents claim and generally start court proceedings (see Chapter 4). In order to succeed they need to prove that the driver of the vehicle was ‘at fault’ and would normally commence proceedings against the driver and owner of the vehicle (both of whom are indemnified).
That the volunteer will be liable is also reflected in the Civil Liability Act 2002 (NSW) which protects volunteers from liability except where ‘the liability is a liability that is required by or under a written law of the State to be insured against’ (s 65). Liability for causing a personal injury in a motor vehicle accident is indeed the sort of liability that a person must be insured against so the volunteer protections do not apply. If they did apply, and if a person was injured in a motor vehicle accident where the driver was a volunteer, they could not get compensation for their injuries.
For these reasons ‘organisational orientation/training’ is irrelevant. If you’re the driver at fault you are legally liable for the personal injuries caused but you are indemnified by the CTP policy.
So the short the driver would be named as the defendant and would in theory be liable if found to be at fault but it’s really a legal fiction, it’s the CTP insurer that is running the matter and which has to pay the damages, it is just a complex way to access the pool established to meet the needs of those injured in motor vehicle accidents.
This is slightly different as property damage insurance is not compulsory. In these circumstances a volunteer could be protected but one assumes that any service carries relevant insurance and they will be vicariously liable for the actions of their drivers.
In this context s 64 of the Civil Liability Act 2002 (NSW) could be relevant. It says that a volunteer is not protected ‘if the volunteer knew or ought reasonably to have known that he or she was acting … contrary to instructions given by the community organisation.’ If the organisation has given instructions not to drive the vehicle without relevant induction that could be relevant. If the organisation has no such policy then of course s 64 is not relevant.
Is such a policy required?
The answer has to be ‘no’. Here people are likely to cite the Work Health and Safety Act 2011 (NSW) which requires efforts to ensure safety for volunteers and those likely to be affected by work place but that is, as I’ve said before, really about ‘risk assessment’. It is not axiomatic that one must do some induction, a risk assessment may well say that if the vehicles being used are standard vehicles, particular induction is not required.
Torts law is about ensuring people who suffer losses due the negligence of others are compensated. The issue will always be who was at fault – the level of training, and more importantly, certification is largely irrelevant. The best trained person can make a mistake, a person without formal training can be quite competent. The question of whether a driver has had ‘organisational orientation/training’ will be relevant in asking whether or not the organisation has taken reasonable steps to ensure health and safety (but will not determine the matter). It will not determine whether or not their employed or volunteer driver was at fault. If the driver was at fault then the service will be liable to meet any property damage claim or will look to their insurer if insured. With respect to personal injury the ‘driver at fault’ will be, in theory, ‘liable’ but will be indemnified by the CTP insurer. They are in exactly the same position as if they were driving their own car – they are protected provided the vehicle is registered or lawfully exempt from registration.