A correspondent from WA asks for an opinion regarding the Road Traffic Code 2000 (WA) and, in particular, its application to the driver of an emergency ambulance. Rule 281 says:
A provision of these regulations does not apply to the driver of an emergency vehicle that is not being used for official duties by a police officer if –
(a) in the circumstances –
(i) the driver is taking reasonable care; and
(ii) it is reasonable that the provision should not apply;
(b) the vehicle is a motor vehicle that is moving and the vehicle is displaying a blue or red flashing light or sounding an alarm.
My correspondent asks:
Who determines if it is reasonable that the provision should not apply?
For example: An ambulance crew is instructed to drive under emergency conditions – lights and sirens – from an ambulance station to a nearby hospital in order to transfer a patient to another hospital. Under normal driving conditions this journey, from the ambulance station to the hospital, would take approximately three minutes. The patient is in a medical facility being treated by doctors and nurses. Can claiming this exemption be considered reasonable particularly if the patient is not ready for immediate transportation.
On raising this scenario with my employer the feedback received was that if a Doctor instructs an ambulance to drive under emergency conditions this removes the liability from the driver of the ambulance. In your opinion is this interpretation by my employer correct?
I’m not sure what my correspondent means by ‘liability’; so I’ll address the first question – Who determines if it is reasonable that the provision should not apply?
The first ‘person’ who has to make that determination is the relevant service. Each service must have a policy (stated or unstated) as to when a ‘response’ is required. In the context of an ambulance service it might be ‘respond to every triple zero call’ or perhaps ‘response’ driving is only authorised to calls that have gone through some triage process and the coordinator has determined the urgency of the required response. The policy may be general, requiring officers in each case to determine how the policy applies to the given job, or it may be specific where the response status is actually given by the ComCen or supervisor when the job is allocated. Whatever the policy it will be the first benchmark. If a traffic ticket (for example a speed camera ticket) is issued the service is likely to, or I would say should, ask the driver what was happening. If the driver confirms that they were ‘responding’ to the job the service should consider whether that accorded with their policy and if it did, write to the police to have the infringement notice withdrawn.
The second, but beyond doubt the most important judge of whether ‘it is reasonable that the provision should not apply’ is the driver. Regardless of the response policy, regardless of the direction from ComCen, regardless of the pressure from the other crew members, it is the driver who has to decide whether or not he or she should take advantage of the exemption. If the driver is approaching red traffic lights and considers that he or she should not proceed, the he or she should stop, turn off the warning devices and wait for the green traffic light. The driver is always responsible for the safety of the vehicle, the other crew members, other road users etc. I shall return to this later.
The next person called upon to decide whether or not ‘it is reasonable that the provision should not apply’ is a police officer. A police officer who sees an ambulance drive contrary to the road rules, or is reviewing the speed or traffic light camera photo must decide whether or not, in that officer’s view, the conduct was ‘reasonable’. To make that decision he or she should consider any representations as to the service policy and training and the task that had been assigned, but ultimately it is their call. If they think that the driver was not taking reasonable care or the rule that driver ignored should not have been ignored, then they will issue a Traffic Infringement Notice and further, would decline to withdraw it when asked to do so.
Anyone who receives a traffic infringement notice can pay it, or they can declare that they are not guilty of the offence and elect to have the matter dealt with by a court. That applies to the driver of an ambulance too, so if the driver thinks that the police officer was wrong they can elect to have the matter determined by a court. In that case the matter will be heard by a Magistrate. The magistrate will hear from police as to why they think the conditions necessary for r 281 were not met, and then hear from the driver and, if he or she is supported by the ambulance service the magistrate would also hear from the service officers, as to why they think what the officer was doing was reasonable. The magistrate will explain what he or she thinks are the relevant facts and legal considerations and will determine whether or not r 281 does provide a defence in that particular case.
If either party, the driver or the police, disagree with the Magistrate’s ruling on what the law requires they could appeal. In most jurisdictions an appeal from a Magistrate goes to a single Supreme Court Judge. If that occurred the Judge would have to determine whether or not, in the circumstances, r 281 did apply to give the driver a defence.
If one of the parties thinks that the judge got the law wrong they may appeal to the Court of Appeal in which case three judges will review the decisions of the lower courts and give a statement as to what factors should be considered when deciding whether or not a provision of the Road Traffic Code should be applied to the driver of an emergency service vehicle.
Finally, if there is still disagreement, and if the disgruntled party can convince the High Court of Australia that there is a real, complex issue of law, and that perhaps courts in different states are taking different approaches to what is meant to be a scheme of national road rules, then there could be an appeal to the High Court. The judges of that court will give the final answer of what are the relevant considerations that a service or police officer has to consider when deciding whether ‘it is reasonable that [a] provision should not apply’.
It should be noted that appeals to a Court of Appeal or the High Court of Australia are incredibly unlikely. The value of a traffic infringement notice means such a fight just isn’t worth it and the High Court is unlikely to be very interested in sitting as the 4th court to determine a road traffic matter. So appeals to that level of court are unlikely, but they are theoretically possible. Most people, of course, don’t take these matters further than asking the police to withdraw the traffic infringement notice, and if they refuse to do so, they just pay the fine.
Where does the caller, whether it’s a citizen who calls triple zero or a doctor fit into that list? The answer is ‘they don’t; they don’t get to decide what response is required’. This goes back to my first decision make, the relevant service. They should have a policy and it may be that they have a policy that a doctor can request an ambulance and if the doctor says the request is ‘urgent’ then the ambulance service will direct its officer to ‘respond’ with lights and sirens. But it’s the service, not the doctor that is making that decision. If a doctor is travelling with the patient and paramedics and expresses the view that the urgent nature of the patient’s condition requires an expedited response, he or she can ask for that to happen, but the doctor cannot direct the driver as to how to drive or to ‘turn on the lights and sirens’.
Let me then turn to the scenario – is it ‘reasonable’ for an ambulance to rely on r 281 and use lights and sirens to require other vehicles to give way and perhaps travel contrary to the normal road rules to travel 3 minutes to a place where the person is already receiving medical care? I can’t answer that (I’m not one of the people listed above) but I can have some thoughts on how police or a magistrate may answer it. The first thing to consider is that the treating doctor, who is with the patient, has requested an urgent ambulance response. That would certainly be a factor to consider. Then one would want to consider the traffic conditions and the time of day, is ‘response’ driving really going to make a difference to the response time? It’s going to cause other drivers to take steps to get out of the way, it will increase the risk. If you’re driving through a congested area that’s full of cars and pedestrians your claim that you did not need to honour the 40km/h speed limit may not be ‘reasonable’. On the other hand, if it’s a 3-minute drive in normal conditions but normal conditions are on a road with an 80km/h speed limit, it may be quite reasonable to put the lights and sirens on and travel at 100km/h.
Let me now turn to the second question – “On raising this scenario with my employer the feedback received was that if a Doctor instructs an ambulance to drive under emergency conditions this removes the liability from the driver of the ambulance. In your opinion is this interpretation by my employer correct?” As I said I’m not sure what they mean by liability, so I’ll address a couple of possible interpretations.
- Will the doctor’s request mean that the paramedic can’t get a traffic infringement notice? Answer, ‘No’. As noted above that a treating doctor has requested an urgent response may mean that the paramedics and the service can have more confidence that they are required – more than when responding to a call from an untrained citizen who’s rung triple-zero, but that is only one factor to be considered. The issue is about the nature of the driving; What rule the driver is seeking to ignore? What are the driving conditions? The requesting doctor knows none of those things. A request for an urgent response means ‘as soon as you can safely get here’ but it can’t be a binding direction.
- Will the doctor’s request mean that the paramedic isn’t liable if there is an accident? No. The driver of the ambulance is the person responsible for how that ambulance is managed in traffic. If there is a collision or if, at the end of the day, the police (or magistrate, or judge, or court of appeal or High Court of Australia) think that in the circumstances r 281 did not apply, then it is the driver who will pay the fine, or worse.
- Will the doctor’s request mean that the paramedic or ambulance service isn’t liable to pay damages to anyone injured in an accident? Again the answer is ‘no’. It is the driver who must take ‘reasonable care’ and no-one can relieve him or her of that obligation. The paramedic is not the doctor’s servant acting under the doctor’s direction or control.
The status of the doctor’s request that an ambulance attend as a matter of urgency is just one factor to be taken into account in deciding, in any given case, whether or not response driving is justified and, if it is, whether the application of any particular rule should be waived. The doctor’s request for an urgent response in no way relieves either the ambulance service, or the paramedic driver from the need to consider the particular circumstances and whether or not response driving is ‘reasonable’.