Yesterday’s post – No Special Speed Zones When Passing Emergency Service Vehicles Except in South Australia (January 4, 2017) – has inspired a NSW RFS volunteer to write:

There are a number of definitions of emergency worker and these definitions are used in other legislative provisions.  My interest is as an officer of a Rural Fire Brigade in NSW, but I suspect that the issues apply to other emergency services in NSW and other jurisdictions.

For example, the rule 306 of NSW Road Rules 2014 provides exemptions from other provisions of the Road Rules for drivers of emergency vehicles.  Rule 307 similarly provides exemptions from parking and stopping rules in those Road Rules.  Both of these rules apply to a “driver of an emergency vehicle”.  Emergency vehicle is a defined term and means “any vehicle driven by a person who is an emergency worker, and driving the vehicle in the course of his or her duties as an emergency worker”.  Emergency worker is also a defined term and means (relevantly for the RFS) “a member of a fire or rescue service operated by a NSW Government agency … providing transport in the course of an emergency”.

Additionally, I note that NSW RMS Vehicle standards information VSI 8 provides:

“The use of blue, or blue and red flashing lights is intended to advise other road users that the vehicle displaying them is responding to an emergency situation. They must only be used when the vehicle is being used for police operational functions or urgent purposes arising from an accident, fire or other emergency.”

So it appears to me that the following situations arise as a consequence of these definitions:

  1. Only vehicles going to an incident while it is still an emergency can “respond” (ie with lights and/or siren and the benefit of rule 306) and additional crews “proceed” (ie without lights and/or siren and complying with all the road rules). In my experience, this is well understood and applied – generally only one or two RFS vehicles will “respond” to a small incident with subsequent vehicles “proceeding”;
  2. Those subsequent vehicles, and probably the original vehicles from the time the incident is “contained”, no longer have the benefit of rules 306 and 307 and therefore need to comply with all of the road rules, including needing to be parked legally, and turn off flashing lights;
  3. There is no clear exemption from Part 14 of the Road Rules (Rules for Pedestrians), for emergency services personnel (unless the exemptions for drivers still apply when the driver is on foot, in which case the driver could legally walk in a no pedestrian area and other crew members could not).
  4. If the same definitions of emergency vehicle and emergency worker applied in South Australia, what would be in impact on the reduced speed limits in “emergency service speed zones” if as soon as an incident is no longer an emergency, the vehicle is no longer an emergency vehicle and can no longer display flashing lights?
  5. Finally, I relate this to the unfortunate situation of the F3 where an RFS vehicle was moving from one completed incident to another to collect its crew and was involved in a fatal accident. Given the second incident was no longer an emergency, would it have been legal for the RFS vehicle to have parked on the edge of the freeway (in a no standing or no stopping zone) to collect crew and equipment? Would displaying red/blue flashing lights been legal or made any difference to the legality of stopping on/beside the freeway?

I don’t think there is any fundamental flaw in the reading, the flaw is in the absence of a definition of what constitutes an emergency for the Australian Road Rules and the Road Rules 2014 (NSW) in particular.

In the case of the RFS driver convicted of negligently driving causing death, the trial judge looked to the definition of emergency in the State Emergency and Rescue Management Act 1989 (NSW).  I have argued elsewhere that I don’t think that can be the relevant definition of ‘emergency’ for the purposes of the Road Rules – see RFS Response to Volunteer’s Conviction for Fatal Traffic Accident (October 13, 2016).  In that case, however, the judge didn’t really need to define ‘emergency’ as whatever definition one used, this wasn’t one.   Even if the judge was prepared to infer that there had been an emergency on the first response, at the time of returning to collect the crew ‘there was no emergency, or even urgency…’

The essential issue of an emergency must be a threat to life, property or the environment where time is of the essence in the response.    Further definition is harder to come too so it must, to a large extent, be up to the emergency services to determine when ‘response’ driving is warranted – see Road Traffic Exemption – Who Determines if it is Reasonable That the Provision Should Not Apply? (May 22, 2016).

Implications

1)         Point 1, above appears well founded.  Assume there is a triple zero call and the fire brigade respond.  It’s up to the first attending brigade to report back to the ComCen on the state of the fire, if further resources are required, but time is not of the essence (and one has to ask how much time is saved by response driving – particularly in country areas) then there is no need for further units to ‘respond’.     If time is critical and it will make a difference to the response time, then presumably it’s still an emergency.

2)         Point 2 is more controversial.   Assume the RFS is at the scene of a grass fire that does not poses a threat to property (other than the grass) but the brigade have to fight the fire else it may well develop into a significant threat.  Is that an emergency?  In one sense it’s not, perhaps the further or relieving crews can simply proceed to the scene and there’s no reason to invoke rule 306.  But if rule 307 didn’t apply then they couldn’t park near the scene to actually stop a fire becoming an emergency.

I think the answer here lies in the requirement in both rule 306 and rule 307 that the exemption only applies ‘it is reasonable that the rule should not apply’ (r 306(a)(ii) and r 307(1)(b)).     So a judge could come to the conclusion that the grass fire is an ‘emergency’ but given time is not of the essence it is not ‘reasonable’ to apply the exemption contained in r 306  But it might be reasonable to give the driver the exemption from the parking rules.  In other words an emergency may be an emergency that justifies illegal parking, but not response driving.

3)         As for point 3 there is an exemption for pedestrians.  Rule 308 says:

A provision in Part 14 does not apply to a police officer or emergency worker acting in the course of his or her duty if, in the circumstances:

(a) the police officer or emergency worker is taking reasonable care, and

(b) it is reasonable that the provision should not apply.

Part 14 is ‘Rules for Pedestrians’.  If an emergency worker is ‘providing transport in the course of an emergency’ then I don’t think that’s limited to the driver.  The emergency worker who is walking is transporting him or herself and whatever kit they are carrying.

4)         For what it’s worth, an emergency worker, in South Australia, includes ‘members of an emergency services organisation within the meaning of the Fire and Emergency Services Act 2005’ (Road Traffic (Road Rules–Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) r 54) so a member of the CFS is an ‘emergency worker’ whether there’s an emergency or not, so the issues being discussed here don’t arise in that jurisdiction.

5)         It would not be legal for an RFS vehicle to have parked on the edge of the freeway (in a no standing or no stopping zone) to collect crew and equipment in the absence of an emergency.  It might be convenient but that doesn’t make it legal as a taxi driver, who cannot refuse a fare, will no doubt discover when they stop to pick up or drop off their passengers.  In the fire context, it might be argued that the presence of the crew itself constitutes an ‘emergency’ given they are at risk by being on the road side.  There is also the doctrine of necessity, a common law rule that says that it can be permissible to break the law in order to avoid a greater harm and the actions are proportionate to the given risk.  So asking the crew to try to get somewhere where the appliance may lawfully stop may be a greater risk than picking them up where they are.

Some reflections

The definition, particularly in NSW, is rather unhelpful because the status of a person and a vehicle changes.  People are an ‘emergency worker’ or driving an ‘emergency vehicle’ only where there is an undefined emergency.   This leaves much scope for debate.  It would be better if the definition defined an emergency worker by reference to his or her membership of an organisation.  That would not give carte blanche to ignore the road rules because the other provisions of r 306 and r 307, namely that the driver has to be taking reasonable care and it has to be reasonable in the circumstances that the exemption applies, would still be the law.  It would however avoid the theoretical possibilities discussed above.

The real impact, in my view, of these rules is not in the protection they give the emergency services but the protection they give the police.    The police can’t have an approach of ‘we let the firies off because they’re good people’, rather we are governed by ‘the rule of law’: ‘Be you ever so high, the law is above you’ (see “Tom Bingham, The Rule of Law”). That includes the driver of an emergency service vehicle who is bound by the law as much as anyone. The reason police, fire fighters and paramedics can drive contrary to the road rules is not because they are exempt from the law, but because there are specific laws to allow them to do those things, but they must comply with that law – this is fundamental to the issue of the rule of law.

The presence of rr 306 and 307 means that a police officer who sees a fire appliance at the side of the road whilst the crew are fighting the fire can say to anyone who asks ‘they’re allowed to do that’, but that same officer, who thinks it’s not safe or they don’t need to be where they are can direct them to move the vehicle or issue a ticket.

The same for a judge.  If the judge, looking at all the facts, thinks that what the driver did was reasonable he or she can acquit them and point to the law as justifying that conclusion.   I think that’s what would happen in the scenarios above, if on all the facts, a police officer or judge thought the actions of the emergency worker were justified either in parking by the side of the road or crossing the road against a red ‘don’t walk’ light they can take no action and justify that to the community as being consistent with the law, not just a decision on a whim.    And if they do issue an infringement notice, the person who receives it has an opportunity to challenge that decision and make an argument that is more than just ‘but this is silly’. They can actually point to the law.

Ultimately these clauses are very, and I would say deliberately, imprecise to give flexibility to the RFS (and other emergency services) the police and the courts. If, in all the circumstances, the way the vehicle is driven, or parked, is reasonable then the police and courts can ‘let you off’ not on the basis of hidden discretion but because the law says they can; if it is not reasonable then you can still get a ticket.

The issue really becomes when are the police going to issue a ticket?  One circumstance will be automatic detection devices (red light and speed cameras) that will ‘ping’ an emergency service vehicle and may require the driver to address the issues in r 306.  But again, because it’s the law, if the driver can show that the circumstances prescribed by the rule apply, they are entitled to have any allegation withdrawn, it’s not merely a matter of the police ‘turning a blind eye’ but applying the law.

The most likely time issues will arise is when there is an accident.  It reinforces the rule of thumb said before, both by me and commentators on this blog – the most important rule is don’t crash.  If you crash your fire appliance, or someone runs into it when you’re fighting a fire (given the RFS could choose to close the road (Rural Fires Act 1987 (NSW) s 24) that’s when difficulties are most likely to arise because once there has been an accident it’s very difficult (but, granted, not impossible) to argue that the driver was taking reasonable care, because, if they were, the accident wouldn’t have happened.