My colleague Geoff Cary has passed on a link to a story appearing in today’s Sydney Morning Herald (online): ‘RFS volunteer to fight fatal crash charges’.

The gist of the story is that the volunteer had been attending a motor vehicle accident on the F3, or Sydney to Newcastle, freeway. It appears that the response was completed and the driver did a U-turn, presumably to return to the RFS station when he was involved in a collision that killed one person and injured another. According to the paper he’s been “charged with four offences, including dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm”. The other charges are “negligent driving occasioning death and not make u-turn with safety”.

We are told that the driver is pleading not guilty so we can infer that the facts are not simple or straightforward. We don’t know where the accident happened, the circumstances in which it happened, who could see what, who was travelling at what speed or anything else that would allow us to make any judgement of the accused’s guilt or innocence.

We can make some observations on the law. As previously discussed the Road Rules 2008 (NSW) (and their equivalent in each state and territory) give  exemptions for the drivers of emergency vehicles for offences such as ‘not make u-turn with safety’ (presumably Road Rules 2008 (NSW) ss 37 ‘Beginning a U-turn’ or 38 ‘Giving way when making a U-turn’). More serious offences are not contained in the Road Rules so the exemption would not apply. The serious offences are probably:
• Dangerous driving occasioning death – Crimes Act 1900 (NSW) s 52A(1) (maximum penalty 10 years imprisonment);
• Dangerous driving occasioning grievous bodily harm – Crimes Act 1900 (NSW) s 52A(2) (maximum penalty 7 years imprisonment);
• Negligent driving occasioning death – Road Transport (Safety And Traffic Management) Act 1999 (NSW) s 42 (maximum penalty $3300, imprisonment for 18 months or both).

(It should be noted that these penalties are the maximum not mandatory. If convicted the court would take into account all the circumstances of the accident and the accused’s personal circumstances including his standing as a volunteer fire fighter when determining the ultimate penalty).

As I’ve noted before, for the exemption under the Road Rules to apply the driver must be taking reasonable care, have red/blue lights or siren activated and it must be reasonable, in the circumstances for the exemption to apply (Road Rules 2008 (NSW) ss 306). If the response was over and he was returning to the station then it would seem none of those criteria would be met even if the exemption did apply to these offences.

In any civil action for damages it will be the Government that will be liable. Although RFS vehicles do not need to be registered (Road Transport (Vehicle Registration) Act 1997 (NSW) s 16 and Road Transport (Vehicle Registration) Regulation 2007 (NSW) – Schedule 1, Part 2, cl 12) they are insured by the Nominal Defendant, a statutory authority created to meet the liability for accidents caused by unidentified, uninsured or unregistered vehicles including those that do not need to be registered (Motor Accidents Compensation Act 1999 (NSW) s 33). Normally, the Nominal Defendant can sue the driver of uninsured, unregistered motor vehicle for any damages that it has to pay to a person injured in a motor vehicle accident but that is not the case, if as here, the vehicle does not need to be registered (Motor Accidents Compensation Act 1999 (NSW) s 39). Accordingly to the extent (if any) that the volunteer was a ‘driver at fault’ the liability for damages will be met by the nominal defendant, not by him.

Criminal penalties are different. There is no vicarious liability for criminal penalties so if he is ordered to pay a fine, or worse, it will be up to him to face that penalty. Conviction of these offences can also lead to a loss of licence and if that were to happen it would not just be a loss of permission to drive a fire truck but a loss of permission to drive any vehicle.

That’s the ‘black letter’ lawyer response. Of course none of that even begins to capture the true extent of this tragedy. The death of one person, the injuries both physical and emotional to another and the personal trauma that this volunteer must go through are unimaginable. We can only hope that they are all supported by their family and friends and by the RFS.

To reiterate, we cannot make any judgement as to rights or wrongs, guilt or innocence, of this case. We’ll have to wait for a court to hear the evidence and determine the verdict in due course, but my sympathy goes to everyone involved.

Michael Eburn
4 April 2013