This came as a comment/question on my original post (Further prosecution over fatal RFS accident (August 17, 2016)) but I thought to do the answer justice it needed a post on its own.
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?
This is my understanding of what happened, remembering of course that the only information I have is the judgement of His Honour Judge Berman (references in [square brackets] are to the numbered paragraphs in the judgment).
What did the judge make of the manoeuvres by Mr Mihailidis? At [45] the judge said:
The accused should have foreseen that one entirely logical response to a vehicle entering from a driver’s right, apparently taking a path from right to left in front of him or her, is to steer to the right and pass behind the apparent path of the other vehicle. At the very least the accused should have foreseen that Mr Mihailidis might have been unaware that he intended to turn into Lane 3 and so he should have foreseen, as a reasonable and prudent driver would, that there was a risk that the oncoming driver would, wrongly, perceive that the RFS tanker was going to cross his path and so would steer his vehicle to the right in an attempt to pass behind the apparent path of the other vehicle.
To put that in other words – Mr Mihailidis did not know what the RFS driver intended to do. Mr Wells knew he intended to do a U-Turn but Mr Mihailidis only knew the vehicle was entering his direction of traffic even when he had attempted to warn the driver by flashing his high-beam lights. If Mr Mihailidis did ‘wrongly, perceive that the RFS tanker was going to cross his path’ then it was reasonable for him to then return to lane 3 in order to pass behind the appliance that had entered the road in front of him.
Mr Wells 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 ([45]).
So was Mr Mihailidis charged? We have no idea, he may have received a traffic infringement notice but most likely police would think that given he was seriously injured and his wife was killed, a traffic ticket was not warranted.
With respect to the RFS appliance the question of whether or not Mr Mihailidis was obeying all the traffic rules is not the point. The question is whether he was guilty of an offence. This is a question with a binary answer – that is the accused is either ‘guilty’ or ‘not guilty’. The answer to that depends on whether or not the Crown has proved all the elements of the offence ‘beyond reasonable doubt’. That other people contributed to the accident (as must be the case in every motor vehicle accident) doesn’t answer that question. As the judge said (at [54]):
I find that there is no relevant connection between what appears to be Ms Burton’s breach of a road rule by travelling in lane 3 and the issue as to whether, as a matter of law, the accused’s manner of driving caused the collision between the Mazda and the Corolla which was the direct cause of the death of Mrs Mihailidis.
An issue that I think really affected the outcome was that there was no emergency. This was not a case where a crew were responding to a triple zero call that turned out to be a false alarm. That could not be relevant because a crew in those circumstances don’t know that, in fact, there is no emergency. In this case the driver knew that he was returning to the scene of the original chemical spill to collect his crew and perhaps help with final clean up. At that point he knew that there was no on-going emergency and therefore no need to insist on right-of-way from Mr Mihailidis or to seek an exemption from the Road Rules. The judge noted (at [12]) ‘As the accused told police in his interview … it was easier for him to keep the momentum going rather than stop and go back into first gear.’ There was no reason to make the u-turn in front of oncoming traffic other than it was easier than coming to a complete stop.
In the circumstances we might have expected different reactions from Mr Mihailidis. Seeing a fire appliance with red/blue flashing lights he might have slowed or tried to stop. If he’d staying in Lane 3 Mr Wells may never have attempted the maneuver but when Mr Mihailidis flashed his high beam and moved over Mr Wells took that to mean Mr Mihailidis was indicating it was safe for him to do so, but it was equally foreseeable that Mr Mihailidis was trying to warn of oncoming danger (see [45]). It may also be that Mr Mihailidis was committing offences of failing to keep left (Road Rules 2014 (NSW) r 130 ‘Keeping to the left on a multi-lane road’) and failing to give way to an emergency vehicle (Road Rules 2014 (NSW) rr 78 and 79. Even though, at the time the appliance was not an emergency vehicle as it was not being used by a member of the RFS ‘providing transport in the course of an emergency’, Mr Mihailidis didn’t know that – he just saw an appliance with red/blue lights operating and Mr Wells was entitled to assume that Mr Mihailidis would attempt to give way ([42]). But none of that determined the outcome of this case. As the judge said ([47]):
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.
That’s not to say that if there had been a real emergency the outcome would have been different, even when responding to an emergency a driver has to take reasonable care to avoid a collision because no emergency warrants taking the life of another driver. But when considering all the circumstances the urgent nature of the call may influence the judge. In this case, however, the judge did not say that the absence of an emergency was a factor in his determination of what a ‘reasonable driver’ would do. He said no reasonable driver would ‘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’ regardless of the circumstances.
Sentence
The next stage of the proceedings is sentence. That is a different matter. Then the court can take into account all relevant factors including the ‘degree’ of negligence and the ability others may have had to avoid the accident to determine the driver’s degree of culpability. The current maximum penalty for negligent driving causing death is 30 penalty units (ie a fine of $3300) or imprisonment for 18 months or both (Road Transport Act 2013 (NSW) s 117) but those penalties are the maximum. The court can impose a penalty ranging from finding the offender guilty but imposing no penalty (Crimes (Sentencing Procedure) Act 1999 (NSW) s 10) through to the maximum permissible penalty. As the issue of sentence is still before the court I won’t comment further on that matter.
Australian Emergency Law 
Having been on the LEMC where this happened I doubt the claim the driver was moving into Lane 3. The openings where this happened are only just wide enough for a Cat 1 to get through, and in fact all U-Turns for Emergency vehicles have been banned for large vehicles.(Local Arrangement) due to the small size of the approaches and departures on the southern side of the river. (With the exception of HWP as they have impressive take off speed, and they have to have a good reason to use them).
Kris,
Thanks for that further information. Remember the diagrams I’ve drawn reflect my trying to create an image in my mind’s eye based on the judge’s description, and then using Word to draw them (hardly lending itself to any subtlety). I can see that saying the appliance entered into Lane 3 would be consistent with it taking a wide turn and crossing into Lane 2 with either the intention of moving back into Lane 3 or remaining in Lane 2. The judge refers to Mr Wells entering or moving into lane 3 (see [12], [38], [45] and [47]) so my diagram showing the appliance fully in lane 3 may well be wrong but it helped me to understand what was at least intended and what was happening the Mr Mihailidis’ car.
With respect to the ‘small size of the approaches and departure’ I do note the description of the start of the turn, that is whilst heading south the driver of the appliance, set out at [9]:
Some comments I have seen in other forums seem to overlook that people should drive defensively. We can’t attempt to blame another for our actions. It’s like having a vehicle parked in an awkward place and then colliding with it. As you rightly say other(s) involved in a collision will in some way have contributed to it, even by just being there, but we can’t abrogate our responsibility to drive safely.
I was asked these questions by email:
There was one other fire fighter in the appliance.
It is indeed a problem that the appliance was parked off the road. The driver that collided with Mrs Mihailidis car ‘was distracted by the flashing lights on the RFS tanker so that she took her eyes off the roadway for some time’ ([53]). You can even anticipate that if an appliance is off the road with its emergency lights on, a driver may move to the right, in this case into lane 3 to maximise the distance between them and an apparent incident. But the broken down corolla was in lane 3. That is of course mere speculation and it was no part of the Crown case that moving the appliance off the road was part of the negligence alleged to constitute the offence charged.
Hi Michael A question springs to mind. Does/did NSW have a 40kmh past red/blues rule at the time of the crash? If so, what culpability lay with the driver of the second car, as it would seem they did not slow down? Situations like this are exactly the purpose, or one of them, of the 40kmh rule.
Alan, no NSW does not have ‘Emergency Service Speed Zones’. Those provisions appear to be unique to South Australia – see ‘Emergency Service Speed Zones’ in SA from 1 September’(March 21, 2014).
As a heavy vehicle and RFS truck driver, I find that most vehicle (car) drivers ignore road rules. RFS trucks are heavy and slow as is all fire brigade trucks, and all heavy vehicles are. 99% of car drivers seem to deem it their right to use the road as they see fit and not obey the road rules, such as remaining left unless over-taking, slowing down for and keeping due care and control over their motor vehicle to enable them to stop short of any obstruction or accident that they come across, and/or as in a large number of cases, simply paying attention to what is occurring around them whilst driving to the conditions of the road. With Mr.Mihailidis, it appears he saw the emergency vehicle as he moved to lane 2, flashed his headlamps, (which would have indicated to me to proceed into the lane), but then for some reason Mr.Mihailidis moved back into lane 3 and Mr. Wells seeing this moved into lane 2. What I do not understand, is WHY Mr. Mihailidis didn’t even slow down or even move to lane 1???????? It then comes down to Mr.Milailidis hitting the back of a slower moving vehicle, and I could go on about cars hitting the back of slower moving vehicles (trucks) because the drivers of cars failing continuously to slow down, at such a speed that it???? caused his lights to go out, or did Mr.Milailidas simply turn the ignition off. I believe Mrs. Milailidis’s death occurred because of a second vehicle ( M/s Burton) also failed to avoid hitting the Milailidis vehicle by keeping her vehicle under due care and control to avoid an accident by also being in lane 3 and not lane 1???????. Driving to the conditions of the road with a motor vehicle is paramount to safe driving and paying attention to what is going on around you whilst doing so.
Regardless of the detail of the incident of seriously great concern to me over this incident is the invisibility of clause 128 of the Rural Fires act.
I went to my first fire in 1966 and have been firefighting ie, doing my absolute best for the community and putting my personal safety at risk MANY times during disastrous fire situations.
But I have done so in the belief that if I made a mistake while giving it my best then clause 128 had my back.
While I accept that perhaps there was no impending disaster in this case surely clause 128 should apply.
The failure of clause 128 and the fact that it is not mentioned in this case and the apparent facts that he made a mistake, a poor call if you like and yet was not (1) A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand
Sometimes we need to make decisions very rapidly and with potential catastrophic consequences. So far I have been lucky but the “what if” keeps me awake sometimes. I have had to make the call “I am not taking my crew of volunteers in there to die, those residents are going to die.” Luckily the wind dropped, we were able to get in, were still overrun but saved all.
Taking into account all my experience and also as a trainer in many fire subjects it was a call that troubled me greatly but had to be made in seconds, not minutes.
Clause 28 having my back was a critical part of being able to make those decisions, for good or for bad.
As it seems that clause 128 is not worth the paper it is written on and the department does not have my back I cannot see that the risk is tolerable and am questioning my future in the service.
I also wonder if the rest of the RFS volunteers are aware of and understand the increased exposure.
Section 128 says “(1) A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.” These clauses have never applied when it comes to driving because driving a fire appliance is not ‘executing any provision (other than section 33) of this or any other Act’. There is nothing in any act that says it is a function or power of the fire service to drive on a public street. These provisions apply when, in this case, a fire service is taking action under the legislation that they are empowered to do by the legislation but which would be illegal if they did not have that particular provision; in the RFS context for example exercising the ‘Power to remove persons or obstacles’ (RFS Act s 22A; see Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105).). If the section did people who got injured by a fire appliance would be denied the compensation they are entitled to under motor accidents legislation and which is covered by the vehicles CTP insurer (in the case of RFS appliances that liability is covered by the NSW Treasury Managed fund).
Secondly, although it’s not been conclusively determined, it was decided in Workcover v Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356 the New South Wales Industrial Commission had to consider whether s 78 of the Fire Brigades Act gave a defence to the NSW Fire Brigades when they were prosecuted over the deaths of three workers during a factory fire at Rutherford, near Newcastle. At [51] Justice Boland took the ‘… tentative view’ that the words ‘any action, liability, claim or demand’ did not include criminal proceedings and that “s 78 of the Fire Brigades Act does not provide a general immunity from criminal liability”. This was a criminal prosecution and clearly none of the lawyers thought that s 128 had any application here for, no doubt, the reasons given in that decision. There is no immunity from criminal law for anyone.
As for calls made in minutes in hazardous and information poor environments, that was not the case here. He pulled out in front of a car when there was no good reason to do so. It is easy to say, when you have to make the sort of calls you describe, that you are acting ‘in good faith’. Equally it would not be hard to argue that negligently pulling out in front of a car, when there is no emergency, in order to avoid coming to a stop and having to gear down, would not meet the ‘good faith’ test even if s 128 did apply.