I’m asked this question by a NSW volunteer but let me jump to the conclusion – lights and sirens don’t give you any rights. Now to the question:
I was told other vehicles must give way to emergency vehicles when under lights and sirens but I’ve also been told that if you’re under lights and sirens it does not give you the right-of-way. Of course you have to take care at all times but I’m interested in know what rights does the driver of an emergency services vehicles under lights and sirens have.
The relevant provisions of the Australian Road Rules (reproduced in NSW as the Road Rules 2014 (NSW) are rules 78, 79 and 306.
Rule 78 says:
(1) A driver must not move into the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.
Maximum penalty: 20 penalty units.
(2) If a driver is in the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm, the driver must move out of the path of the vehicle as soon as the driver can do so safely.
Maximum penalty: 20 penalty units.
(3) This rule applies to the driver despite any other rule of these Rules.
(See also Making way for emergency vehicles (May 18, 2015)).
Rule 79 says:
(1) A driver must give way to a police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.
Maximum penalty: 20 penalty units.
(2) This rule applies to the driver despite any other rule of these Rules that would otherwise require the driver of a police or emergency vehicle to give way to the driver.
Rule 306 we know well and it says:
A provision of these Rules does not apply to the driver of an emergency vehicle if:
(a) in the circumstances:
(i) the driver is taking reasonable care, and
(ii) it is reasonable that the rule should not apply, and
(b) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm.
Rules 78 and 79 don’t give the driver of the emergency vehicle any ‘rights’. They impose an obligation upon other drivers and if they don’t honour that obligation they can be fined up to $2200 (a penalty unit, in NSW, is $110 Crimes Sentencing Procedure Act 1999 (NSW) s 17). But that doesn’t give the driver of the emergency vehicle the right to run into them or to expect that a driver will give way. A driver approaching a green traffic light may not have seen, heard, understood or been either willing or able to give way to an approaching fire appliance. The fact that they are committing an offence does not justify either assuming they will or have given way – the driver of the appliance still has to stop and make sure it’s safe to proceed before doing so.
Rule 306 doesn’t give any ‘rights’ either; it does provide that if the circumstances set out apply, the driver has a defence if he or she is issued with an infringement notice for breaching one of the other road rules. Remember offences such as dangerous driving causing death or injury and manslaughter are not dealt with in the road rules, so rule 306 has no application if a driver is charged with one of those offences (see Tragic outcome from RFS response (April 4, 2013)). The rule and the expectation that drivers do drive under ‘response’ conditions will be relevant in deciding whether or not the driver was driving with ‘gross negligence’ (which is what is required for one of those offences) but it is just one relevant factor, it is not a ‘defence’.
Although it’s not a statement of the law a useful way to think about lights and sirens is, at best, they constitute a request to other drivers to make way for you.
PS after posting this, a commentator wrote, in response to an earlier post (see Red/blue lights but no siren? (November 29, 2015)) that ‘Emergency driving is a privilege, not a right…’. That’s the gist of my answer here, distilled to 8 words!
A lot of drivers panic and slam on their breaks when we are approaching behind them and we have to, rare but at times swerve out of the way to avoid them. If we were to hit them under lights and sirens, under the law, which of the party’s would be at fault?
It would depend on the particular facts, but I think we can say that both drivers would be at fault. If you, as the driver of an emergency vehicle, run up the back of another car you are travelling too close, too fast and not paying enough attention. The driver that failed to take appropriate steps to move aside also failed in their duties.
In South Australian Ambulance Transport Incorporated v Wahlheim (1948) 77 CLR 215 the High Court was dealing wth the law following a collision with an ambulance. Latham CJ was talking about the rule that said drivers had to give way to vehicles on their right; a rule from which ambulances were exempt when travelling on urgent duty. Latham CJ said:
Equally other drivers also have legal duties including moving out of the way of, and not crashing into, emergency vehicles (Hine v O’Conner  SASR 1].
That’s the same today. Rule 306 may mean that, where the rule applies, the driver of an emergency vehicle cannot be prosecuted for the offences that non-exempt drivers would be prosecuted for – but that does not deny that the driver owes a duty of care to other road users. So a driver were to ‘panic and slam on their breaks’ and the emergency vehicle travelling behind them collided with them, even ‘under lights and sirens’ then both drivers would be at fault.
Remember too that no matter what you are proceeding to it doesn’t justify injuring, or worse killing, an innocent person and if there is an accident then the emergency service response is delayed, so the primary obligation of the driver is to avoid a collision.
I was tboned by a police vehicle going the same direction on a freeway.
I was severely injured and air lifted to hospital, spent 7 months in hospital and are now left 51% impaired as decided by the TAC. I don’t remember the accident but the solo policeman said I swerved causing him to hit me. The police car had no police lights, no siren and travelling 120kms in an 80km zone.
I had extensive damage to the back of my car. The policeman said he hit my drivers door only and my vehicle slid a number of km s and stopped. It did not roll or hit anything else. I was in a wheelchair for a year and did not have the strength to fight the police in court. My solicitor initially said you’ve been clipped from behind and then tboned. He recanted on this during the court appearances. It never went to trial as the judge offered no conviction for a guilty plea. There is CCTV showing my car going past, then the police car. It showed when I went past the back of my car was intact.
I have since been told that if the police have no lights, sirens, and are going 40kms over the limit, there is a presumption of innocence on the other driver. I was working at the TAC for over 5 years and since the accident was on centrelink for 4 years which was unbelievably hard. Since being found over 50% impaired due to the accident THE TAC ( ironically), pay me loss of earning capacity until 65.
Is there a presumption of innocence in this instance? I am stronger emotionally now and feel I was pressured and bullied by the police. They sent me a bill for 36k five days after the accident to my hospital bed. I was heavily medicated for weeks but advised of this when able to be
My jaw was crushed on both sides, I have a titanium lower right leg. My public ramis dislodged from my body. I broke my pelvis in 3 places, 2 vertebrae, right shoulder reconstruction and the list goes on. Was the policeman meant to answer for admitting he had no police lights, no police sirens and speeding 40kms up the freeway ?
First, let me say I’m sorry to hear of your accident and your injuries. I hope you recover as well as can be expected.
As for your questions, ‘Is there a presumption of innocence in this instance?’ Yes, but the presumption applies to the accused in this case the police officer, not to the other driver (in this case, you). In every criminal prosecution the Crown must prove the case against the accused beyond reasonable doubt. You say the officer entered a ‘guilty plea’ so he must have been charged with an offence – what offence we don’t know but he was charged, and the matter went to court. So as for your second question ‘Was the policeman meant to answer for admitting he had no police lights, no police sirens and speeding 40kms up the freeway?’ the answer is that he did answer for that. He was charged with an offence, entered a plea of guilty and was sentenced (even if that sentence was a no conviction order).
An emergency vehicle is exempt from the road rules if the driver is sounding a warn and has red/blue lights flashing. A police officer can also enjoy an exemption even without the siren and/or beacons ‘if it is reasonable— (a) not to display the light or sound the alarm…’ (Road Safety Road Rules 2017 (Vic) r 305(2)). This exemption does not apply to offences outside the road rules, eg dangerous driving. But clearly this officer did not have, nor did he claim to have, an exemption. He entered a plea of guilty, so he admitted that for whatever offence he was charged with, he had no exemption.
What I infer you really mean is that you think the sentence, ie no conviction, was inadequate. But sentencing is a really complex matter that takes into account much more than the consequences of one’s actions. The issues here might have been what was the officer responding to? What were the circumstances? How long had he been driving and what was his driving record like? How long had he been a police officer and what was his police driving record like? What impact would the outcome have on his career? What factors contributed to the accident. Sentencing is not meant to make the offender suffer on a similar scale to the person affected by the crime, but, amongst other things, to deter future offending. There may have been little reason to think this person would be a repeat offender.
Whilst the outcome (ie the impact on you) is relevant to the charge eg negligent driving, or dangerous driving causing GBH etc and so is in part relevant to sentence it is not the only or even the most significant issue. The driver’s criminality would be the same whether or not there was an accident so critical issues are why were they driving like that at that time.
The punishment imposed on the officer also makes no difference to the compensation paid by an organisation like the TAC.
The short answer to the question ‘Was the policeman meant to answer for admitting he had no police lights, no police sirens and speeding 40kms up the freeway?’ is that if he was charged with an offence and was sentenced by a court, even if that sentence is a decision not to impose a conviction, then he has answered for it. He has appeared in court, he has given his answer, and the judge has determined the penalty to be applied in that case.