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).

Point 1

Point 2

Point 3

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.


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.