I’ve received an email with a number of questions from an NSW RFS volunteer. I’ll answer each one in a separate post so people can read the one’s they’re interested in, but it does mean that the next few posts will have a NSW focus.
The first question is:
We are often paged to incidents that are more of a “compliance” nature, e.g. the pager message is “Illegal burnoff”, or “backyard fire”. These may/may not be “emergencies” (which you have identified has been poorly defined, but for simplicity say “threat to life and/or property”). The burn may present no “emergency”, but are breaches of the Rural Fires Act (fail to have a permit) or environmental legislation. For calls of this nature, should we actually be responding under lights and sirens, or, since is not an “emergency” and therefore outside the exemptions for emergency vehicles in the Road Rules drive to normal road conditions?
The exemption for emergency vehicles applies when they are being driven by an emergency worker, which includes an RFS volunteer, provided they are ‘providing transport in the course of an emergency’ (Road Rules 2014 (NSW) rule 306, Dictionary, definitions of ‘emergency vehicle’ and ‘emergency worker’). What is an emergency is not defined but as noted elsewhere it cannot be the definition that applies in the State Emergency and Rescue Management Act 1989 (NSW) which is an event ‘which requires a significant and co-ordinated response’ (s 4). On that definition an event that requires the response of a single unit, or even some units is not an emergency but we expect the drivers to proceed with lights and sirens.
In the absence of a definition in the Road Rules, it is really up to the service to define, within reason, what is ‘an emergency’. Rural Fire Service ‘Safe Driving Standard Operating Procedures October 2008’ (which is the only version I can find on the web so I hope it is current) says
1.1 Normally RFS vehicles “respond” for the initial response to an emergency incident, under the instruction of the Incident Controller (IC), District Manager or other person with delegated authority.
1.2 Driving under Emergency Conditions commences from receipt of the instruction to “respond” in an RFS vehicle and ceases upon notification of the cessation of the risk at an incident.
The criteria here for ‘response’ driving is a direction from a relevant authority. A local brigade cannot know, until they get there, whether the event is an ‘emergency’ or not. I am reminded of my days in NSW Ambulance when responding to a call of a ‘person fallen’ that my training officer said ‘but we don’t know if it means fallen from the 4th floor!’ Equally an ‘”Illegal burnoff”, or “backyard fire’” may be threatening homes or lives. Someone has to decide the point and for the RFS it’s the relevant ‘Incident Controller (IC), District Manager or other person with delegated authority’.
With respect to the Road Rules it cannot be the case that the exemption depends upon there being an actual emergency because the service, the coordinator and the driver are responding to a call for assistance. The exemption applies when ‘it is reasonable that the rule should not apply’ (rule 306(a)(ii)) and that must be when the driver is driving in accordance with the relevant service policy.
To that statement there is must be an exception and that is where the policy is clearly self serving and silly (and I assume there is no such policy). A policy that says ‘you may respond to your station if it is after the scheduled time for shift change and you are on overtime’. I don’t think anyone would accept that was a reasonable or genuine policy. The point of that extreme example is to say that the service in question, whether it’s a fire service, ambulance service or SES have to think about what constitutes an emergency and give it genuine consideration. Having done that their determination that, say, any turn out in response to a triple zero call is considered an ‘emergency’ would be sufficient.
Conclusion
The driver of an RFS appliance should respond under lights and sirens:
- If he or she feels it is safe and reasonable to do so; and
- They are acting on the ‘instruction of the Incident Controller (IC), District Manager or other person with delegated authority’ whether that is communicated via the pager or local SOPs;
The local unit cannot determine from ‘the incident (as described)’ whether or not it is an ‘emergency’, however that is defined by the service.
Australian Emergency Law 
In Victoria we chose either code 1 (lights and sirens) or code 3 (normal road traffic regs). The example would only justify a code 3 response. Explaining your actions to the Coroner would be difficult if it was a non life threatening reason. There is no justification when a loss of life occurs in an accident when really there wasn’t a need for the response taken.
Bruce, I can’t accept the implications of your comment. Let me explain why. First if you’re explaining your actions to the coroner you are suggesting that there has been a fatal collision. Explaining how you came to crash your appliance will be difficult regardless of the call. Whether you are responding to a confirmed multi-vehicle accident with fire, or a fire in a garbage bin in a local park, it does not justify killing someone to get there (see ‘Suspended jail sentence for firefighter involved in a fatal accident’ (October 24, 2009)). Even the argument that ‘but many people’s lives were at risk’ is irrelevant if you failed to get there because of the accident. To put it simply ‘There is no justification when a loss of life occurs in an accident’.
Second you can imply that the ‘example would only justify a code 3 response’ for the reasons given. I assumed in my answer that the pager message was appropriately ‘coded’ for an emergency response; by that I mean it conveyed to the fire fighters that an emergency response was expected and authorised. That code can be explicit eg where the pager message actually says something like ‘Code 1 – fire at ….’. To go back to my days in the NSW Ambulance service (and we are talking something like 25 years ago now) we were told that a job was a ‘casualty call’ or it was booked by a doctor and marked ‘urgent’. Either of those meant a lights and siren response, regardless of what we were then told was the issue.
Alternatively the code can be ‘implicit’ that is it is just the practice within the service or even within the brigade to respond with lights and sirens to these calls. It may be that no-one’s ever written a policy on the matter and the wisdom is just passed down, but if the ComCen/FireCom/control centre and senior staff know that’s the practice and still send the calls, they are by implication endorsing the practice. The call is them implicitly coded for an emergency response.
If, in my correspondent’s example, responding to a page call for ‘“Illegal burnoff”, or “backyard fire” is always done as an emergency response, or if ComCen direct that is the appropriate response, then that is the appropriate response. I don’t think anyone would or could question whether the exemption from the road rules would not apply because it turned out not to be an emergency.
It has to be recalled that the room for error here is immense. A person calls triple zero to report an emergency. What is an emergency to them may not be to experienced emergency service workers but they’re not working on the same definition. They have to communicate to the call taker, they may be emotional, they may be injured, they may be intoxicated, they may be mentally ill, English may not be their first language, they may have difficulty speaking or hearing, they may be plain dumb. Alternatively they may be very calm, modest and understated. What they are reporting to the call taker may nor may not accord either with reality or how the emergency services would assess the scene. It’s surely not a bad rule of thumb however to think that if someone has rung the triple zero emergency number it’s because they think there is an emergency, regardless of what anyone else might think. If one responds with lights and sirens and it turns out to be nothing, no harm done. If one decides it’s not urgent, the brigade take their time getting out of the station and trundle to the scene to find people injured and homes burned, then explaining that to the coroner will be hard. The exemption applies when responding to an emergency and a person has reported an emergency, that’s what you are doing regardless of what it actually turns out to be.
That has to be the case. Ambulance, police and fire services respond to multiple false alarms and hoax calls. Equally they get ‘called off’ along the way when the services that are first on scene determine that the further services are not required. One can’t imagine the driver’s getting infringement notices because it turns out there was no emergency.
Hi, I am a volunteer Bush fire fighter in WA. I am very experienced and highly trained in all aspects of emergency management. I have been astounded that the shire within which I currently reside, and am a member of a Bushfire brigade within, will not allow a fire unit to respond under lights and sirens, the rationale is that a Bushfire is not an emergency, I was disciplined for responding to the first fire I attended, under lights and sirens. Since then I have followed the directive and not used lights and siren. I understand that this means that the fire truck is treated the same as any other road user, but I have often wondered about the shires exposure by making this rule. It is hearsay that this rule came into place because several senior fire fighters did not want to do the additional training required to drive under emergency conditions, i.e. lights and sirens.
Ross, I’m not sure what you mean by the ‘shire’s exposure’, presumably you mean potential legal liability for not allowing the bushfire brigade to operate with lights and sirens. The answer is there would be none. Even if the shire owes a duty to those affected by fires it also owes a duty to road users and fire fighters so if they have decided that the risk outweighs the benefit, or the cost of training exceeds their budget, then so be it. All governments have to make budget allocations – how much for training fire fighters, how much for libraries etc. One cannot sue a government over its budget allocation decisions (see Civil Liability Act 2002 (WA) s 5W). Even if there was some breach of duty one would have to prove what the improved response time would have been and what difference it would have made to the eventual outcome. I can’t see any real potential exposure unless a firefighter is injured in circumstances where their use would have been helpful, but it does beg the question of why install them if you’re not going to let them be used.
Thank you for your reply which is all pretty consistent with my understanding.
Personally I think this is a case of what is lawful may not be ‘right’ but that is another story.
Kind regards
Ross Pearce
I am a member of the NSW RFS and when called to drive a tanker to a fire event the direction I receive from our FireCom is either to “respond” or to “proceed”. Respond indicates lights and sirens. Proceed indicates drive as normal traffic. Even when responding with lights and sirens I have been advised that I must take all possible care and never to endanger another road user; that is, never to force right of way or to aggressively enter an intersection against a red light or a stop sign or a give way sign. Failure by another road user to give me right of way or to act courteously does not give me the right to drive in a manner dangerous to the public or to my passengers or to myself. The lights and sirens are a signal to other road users that my tanker is required as soon as possible for a fire event, NOT that I am now King of the road! I hope this helps even though I am 3 years late addressing the initial question.
Kim, I think that answer was well and truly given with the prosecution of Mr Wells – see Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017) (https://emergencylaw.wordpress.com/2017/10/13/court-of-appeal-dismisses-appeal-by-rfs-tanker-driver-involved-in-fatal-collision/)