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?