I have previously reported on the trial of an RFS volunteer who was charged following a fatal traffic accident – see:
- Tragic outcome from RFS response (April 4, 2013);
- Rural Fire Service volunteer on trial for fatal collision (May 19, 2016); and
- NSW RFS volunteer acquitted of dangerous driving occasioning death and grievous bodily harm (June 16, 2016).
As noted in my post of June 16, a jury acquitted the driver of charges of dangerous driving occasioning death and grievous bodily harm. Even so the matter has returned to court. In a comment on my original post I was asked:
The officer may have been found “Not guilty” by a jury but the Daily Telegraph reports that he is to be “dragged back to court” by Crown prosecutors. Here is the link to the DT story:
If he is not guilty, what else could be going on?
I replied as follows:
I can think of three things that might be happening. Either
- the Crown has lodged an appeal and the matter has to go back for some procedural ruling (because it’s way too soon for it to be actually heard) but I doubt that;
- it’s going back to court for some argument about costs eg there may have been an application that the Crown should pay the defendant’s costs and they haven’t agreed to that and that might be consistent with the description of being ‘dragged back’ to court; or
- (and i would think this is most likely) there are some ‘backup’ charges that still have to be dealt with. When the Crown charge a person with a serious indictable offence that has to go before a jury they may also file some lower order charges ‘just in case’ – in this case perhaps ‘negligent driving’ or ‘fail to make a u-turn with safety’. In this case if he was charged with negligent driving causing death and GBH the jury’s verdict may be in effect that the negligence didn’t cause the accident but that doesn’t mean, so the Crown might argue, that the driving wasn’t negligent so they may want to still run that case before a Magistrate.
I can now report on what has happened. The Central Coast Gosford Express Advocate is reporting that the driver has now been ‘found guilty of negligent driving occasioning death and making a U-turn without giving way’ (Richard Noone, ‘RFS volunteer guilty of negligent driving occasioning death over freeway crash’ Central Coast Gosford Express Advocate (Online) August 17, 2016). The difference between a jury trial and a judge alone trial, is a judge must give reasons for the decision and that is the case here; R v Wells [2016] NSWDC 169 (17 August 2016).
First, as I suggested, the judge was ‘dealing with 2 back-up charges, an offence of negligent driving occasioning the death of Mrs Mihailidis and an offence of making a U turn without giving way to a vehicle’ ([2]). The judge in this case had been the judge at the jury trial so he was able to determine the matter based on that evidence that had been given at trial and some further written material ([4]).
The facts, as described by the judge, were that the accused had been asked to respond to a HAZMAT incident on the F3 Freeway. Whilst there the accused and another firefighter were asked to respond to a motor vehicle accident also on the Freeway. They completed their tasks at that accident and were asked to return to the original incident. To return t, the driver had to head south before completing a u-turn to head north to the original incident. According to the judge (at [8]-[13]):
… He decided that he would perform a U-turn through that gap in the median divide. There was a sign at the U-Turn bay which said “no U-turn” but a supplementary sign positioned underneath said “Police, RTA, NRMA and emergency vehicles excepted”.
There was no other traffic heading south, so the accused was able to begin his U-turn by moving to the left of the south bound carriageway before turning the steering wheel to the right. He activated the red and blue flashing lights on the top of the tanker and applied full right lock to the steering wheel. He was in second gear.
There was some north bound traffic which had gone past the U-turn bay, but a Toyota Corolla driven by Mr Peter Mihailidis, with his wife Katina Mihailidis in the passenger seat, had not. It was approaching the U-turn bay from the south (and thus heading north). It was visible to the accused and would have taken about 11 seconds to pass him. It was initially in lane 3 and it was Mr Wells’ intention to also turn into lane 3, the lane nearest the centre of the roadway.
When the Corolla driven by Mr Mihailidis was about 350 metres south of the U-Turn bay he flashed the car’s high beam headlights. At about the same time the Corolla moved from lane 3 to lane 2, the centre of the northbound lanes. Both Mr Barwick and the accused noticed this and interpreted this as an indication from the driver of the approaching vehicle that he or she was aware of the presence of the RFS vehicle and, in effect, indicating to the driver of that vehicle that he could complete his U-turn – and that he, the driver of the approaching vehicle, would give way.
As I mentioned before the RFS tanker was heavy and slow to accelerate. It had remained in second gear as it went through the U-Turn bay at walking pace. As the accused told police in his interview with them conducted early the following morning, it was easier for him to keep the momentum going rather than stop and go back into first gear. As the tanker moved into lane 3 of the northbound carriageway the Corolla also moved back into lane 3. The accused saw this manoeuvre in his rear view mirrors and so steered the tanker left, intending to get out of the way of the Corolla. He had partly entered lane 2 at the time the Corolla collided with the rear left hand side of the fire tanker. The tanker was moving slowly at the time of the collision, its speed being in the order of 10-15kph.
After the collision the accused drove the tanker into the break down lane. The Corolla was left stationary in lane 3. Its electrical system was damaged to the extent that none of its lights operated. It was completely unlit. Mrs Mihailidis, whilst perhaps injured in the collision, was alive. She opened the passenger door and released her seat belt. She was in the process of getting out of the car when she was struck by a third vehicle, this a Mazda driven by Ms Nicole Burton who was also travelling northbound. She was driving the Mazda in lane 3 and had been for some time. Her lights were on low-beam and as she approached the scene she looked towards the flashing lights of the RFS tanker to her left. She did not see the stationary Corolla until it was too late to avoid colliding with it. It was the collision between the Corolla and the Mazda which caused Mrs Mihailidis’ death.
The judge then turned to the issue of negligent driving. Negligence is conduct falling below the standard to be expected of the reasonable person. Any falling short is sufficient for civil liability. For criminal law:
‘… the Crown [must] prove negligence of such a high standard that criminal punishment is appropriate. Negligent conduct penalised by the criminal law must evidence such a marked departure from the standard of care that the reasonable person would have exercised, that it merits criminal punishment’ ([33]).
The difference between negligent driving, dangerous driving and manslaughter are the degrees of negligence. The more gross or serious the negligence, the more serious the offence. In this case the driver had been acquitted of the more serious charge of ‘dangerous driving’ but was there sufficient negligence for the charge of negligent driving?
The judge found that there was criminal negligence for the following reasons ([45]-[50]):
- The accused should have foreseen that northbound vehicles approaching him would be travelling at or about that speed limit of 110kph. A reasonable and prudent driver would foresee that.
- The accused must have also understood, as would a reasonable and prudent driver, that when he turned his vehicle and entered lane 3 northbound there was going to be an enormous speed differential between Mr Mihailidis’ approaching Corolla and the RFS tanker, even if that tanker accelerated as fast as it was able. When the collision occurred the tanker was only doing about 10-15kph and was only 8 metres past the U-turn bay.
- The accused should have also foreseen that drivers do not always act as anticipated and that even drivers with perfect vision can be startled by unexpected events. In this regard, the accused well knew that it was night time with no lighting in the area. These matters would also be foreseen by a reasonable and prudent driver.
- The accused believed … that when Mr Mihailidis flashed his lights and moved into lane 2 he was in effect saying“I acknowledge your presence on the roadway and it is safe for you to enter the northbound carriageway”. If he were a reasonable and prudent driver, the accused would have foreseen that it was entirely possible that Mr Mihailidis flashed his lights as a warning and moved into lane 2 at the same time to avoid the danger which he could see approaching from his right.
- … [the accused] knew what he intended to do, namely enter lane 3 and travel north, but a reasonable and prudent driver would foresee that this intention was not at all obvious to the driver of a vehicle approaching at or about 110 kph. Mr Wells knew what he was planning to do, but he should have foreseen that an approaching driver would not share that knowledge.
- Even assuming that the driver of an approaching vehicle could work out that the emergency vehicle was in the process of performing a U-turn, [the accused] … should have foreseen, because a reasonable and prudent driver would, that given that Mr Mihailidis’ car was the only vehicle approaching, it would not be unreasonable for the driver of a car approaching an emergency vehicle to expect the driver of the emergency vehicle to stop and wait the 11 seconds it would take to allow the approaching car to pass, before entering the northbound carriageway, and that the driver of the approaching car may be startled when that did not occur.
- In the particular circumstances of this evening, especially where Mr Mihailidis was the only vehicle approaching, and could have been forgiven for thinking that the emergency vehicle he could see ahead would not enter the carriageway until after he had gone past it, the sudden and unexpected emergence of a threat which appeared to him to be entering on his right and moving towards his left could have led to him making the decision to respond to this emerging threat by veering behind the apparent path of the emergency vehicle. This is especially the case if, as I have found it foreseeable that it was, the flashing of the lights coinciding with the move from lane 3 to lane 2 was a warning to alert the driver of the RFS tanker that a car was approaching at high speed, rather than an invitation to proceed as the accused interpreted it.
- It was foreseeable to the accused that the driver of the sole vehicle approaching might have responded to the RFS tanker entering the northbound carriageway in unexpected ways, including by doing exactly what Mr Mihailidis did…
The accused was negligent in that he failed to take what is the obvious decision when the driver of a heavy vehicle intends to enter the carriageway of a high speed expressway while a vehicle is approaching – wait the 11 seconds or so necessary to allow that vehicle to go past before entering the carriageway.
By failing to do that, by entering the carriageway while the Corolla was approaching, the accused’s manner of driving was such a serious departure from the standard of care that a reasonable driver would have exercised that it merits criminal punishment. A reasonable and prudent driver would not have entered lane 3 of the northbound carriageway of the F3, where the speed limit is 110 kph, at night, in a slow moving vehicle, while he or she could see a car approaching in lane 2. By doing what he did he created a risk which was real, obvious and serious. The accused did not exercise that degree of care which the ordinary prudent driver would exercise in the circumstances I have outlined above.
[The accused] didn’t want to lose momentum and have to change down to first gear. [The accused] didn’t want to stop. It was negligent of the accused to fail to do so.
Thus I am satisfied beyond reasonable doubt that the accused was driving negligently.
Finding there was negligence was the first step. The next question was ‘did that negligence cause the victim’s death?’ given that she was killed when a third vehicle collided with her stationary car. The court found that it was the RFS driver’s negligence that caused the initial accident and it was that accident that left the car Mrs Mihailidis had been travelling in without power and therefore without lights. An oncoming driver would see the fire appliance that was then in the breakdown lane, with red/blue flashing lights, but not see the unlit stationary car still on the roadway. The judge said (at [59]) ‘Looking at the facts of this case in a common sense way, the Crown has satisfied me beyond reasonable doubt that the cause of Mrs Mihailidis’ death was the manner in which the accused drove the RFS tanker that night’.
As the judge was satisfied that the accused’s conduct was negligent to the standard required of the criminal law, and was as a matter of fact the cause of Mrs Mihailidis’ death, it followed that the Crown had proved its case ‘beyond reasonable doubt’ and that in the judge’s opinion, the accused was guilty of the offence charged.
The accused was also charged with an offence of failing to give way when making a u-turn. He relied on the exemption for emergency vehicles ie rule 306 of the Australian Road Rules. The judge rejected this. First he would have found, if he had to, that at the time of the accident the RFS appliance was not an ‘emergency vehicle’. As has been noted on this blog, an emergency vehicle (in NSW) is a vehicle driven by an emergency worker in the course of providing transport in the course of an emergency.
Whilst the initial response may have been a response to an emergency, at the time of the accident the accused was returning to pick up the crew members rather than to attend to any urgent duty or need. The judge said:
No evidence before me pointed to any urgent need for the accused to return to the weighbridge. The accused knew the situation at the weighbridge when he left and he told the police in his interview that he had to return there to tidy up and pick up the crew. I repeat, if necessary I would have found beyond reasonable doubt that the accused was not driving an emergency vehicle when he performed the U-turn.
In short the driver was not driving an ‘emergency vehicle’ because there was no emergency. In any event, the conclusion of whether or not there was an emergency and therefore an ‘emergency vehicle’ was not essential to the judge’s decision.
Rule 306 only applies if the driver is taking ‘reasonable care’. As the judge said (at [63]) ‘As I have concluded above, the accused’s manner of driving was negligent. It follows that he was not taking reasonable care. In the course of submissions Mr Higgins [Counsel for the accused] conceded that he could not contemplate a situation where a driver found to be driving negligently could be found to have been taking reasonable care’. Given the finding of negligence, that is a driving without reasonable care, the accused could not rely on r 306 and was convicted of the u-turn offence.
As noted in the newspaper article, the accused remains to be sentenced and that has been set down for September 16. Unless he chooses to appeal any aspect of this decision, or the sentence, that will be the end of the legal process.
Another similar event
Related to this post is the news that in South Australia, a paramedic has now been charged following a fatal accident when the patient being transported by ambulance was killed – see ‘Ambulance driver reported for causing death by dangerous driving after crash near Adelaide‘ ABC News (Online) 16 August 2016. These stories confirm my view that if emergency service workers are concerned about legal liability or repercussions of their work, the biggest legal risk comes with driving the vehicle.
Australian Emergency Law 
Why was he there in the first place? Does the RFS have a response role for Hazmat incidents now?
Australia’s emergency arrangements are meant to be ‘all hazards and all agencies’. Even if NSWF&R are the lead agency for HAZMAT they can call on other agencies to assist. The judge says (at [25]) ‘There was evidence that about 2,000 litres of concentrated orange juice had spilt. It was classified as a chemical spill. Crew attending had to wear breathing apparatus.’ No further information is given as to what the RFS were doing there.
I find this one a bit of an eye opener. I think back over my years how often I’ve done the exact same thing- performed a u-turn on a freeway and have manoeuvred lanes according to the traffic. I think back how many times I’ve had drivers flash me as they merge lanes to give me room to move.
I just shake my head. What an eye opener. What s shame. How sad for everyone- the deceased and their family as well as the emergency crews involved.
Very intriguing as a driver or emergency vehicles and also as a regular road user.
Is there any information regarding the traffic on the road?
For the ‘beyond reasonable doubt’ around negligence, I would like to see the car drivers actions in further detail.
He used hi beam unlawfully, appeared to be travelling in the right lane whilst not overtaking, and failed to give way to an emergency vehicle (as a driver would perceive a vehicle with red/blue lights). Also changed lanes into the tanker, and did not appear to slow to a safe speed for the conditions ie an emergency vehicle entering.
A reasonable driver would already be in the left lane, and be expected to be able to avoid the accident. 11 seconds is alot of time to slow down.
When the defendant pulled onto the northbound lanes of the freeway the judge said (at [10]) ‘There was some north bound traffic which had gone past the U-turn bay, but a Toyota Corolla driven by Mr Peter Mihailidis, with his wife Katina Mihailidis in the passenger seat, had not. It was approaching the U-turn bay from the south (and thus heading north). It was visible to the accused and would have taken about 11 seconds to pass him.’
The conduct of both other drivers was considered, that is both Mr Mihailidis and the Ms Burton who was driving the car that collided with the Mihailidis’ Corolla and which was the direct cause of Mrs Mihailidis’ death. In criminal law however the issue is not to apportion blame where everyone may have done something wrong, but to determine whether the conduct of the accused constitutes the offence charged. Other people may have contributed to the outcome and may themselves have committed offences, but it doesn’t mean that the accused who is on trial did not commit the offence alleged.
With respect to Mr Mihailidis the judge said ([40]-[44]; emphasis added):
In essence the accused had the option to stop – which would have involved moving into first gear and moving back onto the road, or by not stopping relying on the vehicles inertia. As the judge said (at [48]) “Mr Wells didn’t want to lose momentum and have to change down to first gear. Mr Wells didn’t want to stop. It was negligent of the accused to fail to do so.” When making that decision the driver is not entitled to simply assume all other road users will obey the rules and not be startled etc. The ‘reasonable driver’ is not you or I but a legal fiction who is cautious and understands that other drivers, particularly if faced with something unexpected, may startle or take unanticipated action. One has to consider that there are drivers of differing skill levels on the road. On a simple cost benefit analysis, waiting 11 seconds when there was no urgent need to proceed was, in his honours view, what the ‘reasonable driver’ would do: ‘11 seconds is a lot of time to slow down’ but it is also not a long time to wait. The mere fact that Mr Mihailidis may have committed the offences suggested does not deny that the RFS driver was also negligent.
With respect to Ms Burton, the judge said ([53]-[54]):
The RFS driver’s conduct was not the sole or even direct cause of Mrs Mihailidis death but the law does nto require a simple ‘but for’ test in these cases. The action of the accused has to be significant contribution – if he had not been negligent Mr Mihailidis would not have collided with the fire appliance and then been left exposed to a collision with an oncoming car. As the judge said (at [57]-[59]), having reviewed evidence including dash cam video from other drivers:
Thank you for this response.
The writen law is very different from how we are taught to drive/expect others to drive.
It seems that if everyone was obeying the law to the letter then none of these accidents would happen. Also when 1 or 2 breaches are made everyone gets away. However when everyone in the scenario is negligent it seems unfair that a single wrong is singled out and brought to punishment.
The ‘reasonable driver’ standard needs to be lifted.
With all such medical conditions, and cleared for driving?
Also note that both the cars were in lane 3, not just the second car. The entire incident should not have happened.
I remember rumours but was there a law passed saying drivers must reduce speed around emergency vehicles/incidents a few years ago?
If everyone always obeyed the road rules to the letter – no accidents would happen! The question of breaches of the law aren’t as simple as ‘everyone did it’. The other drivers may well have received traffic infringement notices or been charged with offences too – but that is not the point at a criminal trial. The issue here was ‘was the driver of the RFS appliance negligent?’ The answer to that question was ‘yes’ regardless of whether others were too. Did that cause the death? That is more complex, it was one factor. If the car hadn’t hit the appliance, no-one would have died; if the second car hadn’t hit the first, no-one would have died. They are both essential conditions for the outcome. But all matters involve issues like that – and the law has long said that if you cause an accident you are (civilly) liable for the consequences including death to others such as rescuers (Chapman v Hearse(1961) 106 CLR 112). Attributing causation always involves a moral question – who should be held responsible for this ultimate outcome. Everyone was not driving strictly in accordance with the road rules but they are minor or technical breaches, it was the RFS’ driver who pulled in front of the oncoming car and can’t escape liability by saying ‘but if he’d reacted differently there would have been no accident’ when there was no good reason or authority to in fact pull out. There was no emergency.
The ‘reasonable person’ in law is not the usual or average or understandable. It (it is neither he nor she) is a legal fiction. This is what I say in my book Emergency Law (Federation Press, 4th ed, pp 24-25):
That ‘The entire incident should not have happened’ is clearly true of this and every accident and that is why people are charged with criminal offences when accidents, particularity serious ones do happen. In this case the judge was satisfied that it was the action of the RFS driver that was unnecessary and that started the inevitable chain of events that lead to the death charged.
Do note however that this means the accused has been found guilty. Issues of his ‘culpability’ and all the circumstances will also be considered, and reflected in any sentence that is imposed. Thank goodness we don’t have mandatory sentences because the judge can consider all the circumstances in determining the final penalty. I won’t comment on that further given that issue is still before the court, but do see Suspended jail sentence for firefighter involved in a fatal accident (October 24, 2009).
A question : It is stated several times that Mr Mihailidis was the only car approaching in a 110kph zone on a three lane Hwy, should he have not been “keeping left” and travelling in Lane 1??? If so was he charged with that as it was a significant contributing factor to him crashing into the RFS Vehicle?
Thanks Ian, I’ve replied to this question in a seperate post – see https://emergencylaw.wordpress.com/2016/08/21/further-prosecution-over-fatal-rfs-accident-part-2/