This is a long post so I’ve put the relevant questions in bold:

I have a few questions for you regarding the operation of social media organised ‘rescue’ services for off-road enthusiasts. I am not involved in anyway involved with the groups described, nor do I purport to offer such a service.

I’ve been aware of various Facebook groups floating around for a long period in NSW and perhaps other parts of the country that claim to offer ‘rescue’ for stuck off-road 4×4 adventurers. This usually involves requesting help via the Facebook page with their location, to have someone (essentially anyone and/or everyone who responds to the initial request for help) find and pull them out of muddy ruts, swamps, bogs and so on.  As far as I can tell, these groups operate with no financial gain from services rendered.

You can find a couple here, the first one being NSW specific and the second being ‘country wide’:

I have concerns that avid off-road enthusiasts may open many cans of worms if something were to go wrong, especially where these groups claim to offer ‘rescue’ services or seem to operate as a ‘rescue unit’. This seems to contradict quite a few sections of the State Emergency and Rescue Management [SERM] Act 1989 (NSW). I’m unsure of other state legislation equivalent to the SERM Act, though I gather there are similar sections in similar acts.

Most of these off-road ‘rescues’ that I’m aware of seem to be relaxed and non-urgent in nature, which doesn’t strike me as meeting the definition of rescue under s 3 of the SERM Act “the safe removal of persons or domestic animals from actual or threatened danger of physical harm.”   There are undoubtedly instances in off-road touring where danger could be introduced: isolation, extended exposure to extreme temperatures, precariously placed vehicles on a cliff edge and so on.

Where is the line drawn in terms of actual or threatened danger? Could these groups operate legally under the proviso that they don’t assist people subject to “actual or threatened danger” (assuming they then call the relevant authorities)?

Further reading into the SERM Act reveals the following:

“rescue unit” means a unit (comprising a group of persons) which carries out rescue operations for the protection of the public or a section of the public.

Based on this part of s.52, it seems that these Facebook groups (and perhaps groups organised in-person and who meet regularly) are meeting the definition of “rescue unit” for off-road adventurers. Is my interpretation correct?

Section 52 further defines “rescue vehicle” as a

… vehicle that is designed, adapted or equipped for use in rescue work and:

(a) is clearly marked with the word “Rescue”, or

(b) is fitted with warning devices, such as flashing lights or a siren,

or both.

I’ve also noticed that several vehicles have “off-road rescue” clearly written on them (though no red/blue lights or sirens; I’ll give you a break from the Road Rules!), with one group selling stickers that use the word “rescue” in amongst four-wheel drive related terms (see enclosed, I’ve blacked out identifying information which isn’t relevant to the conversation).

stickers

My understanding is that most off-road enthusiasts will at least carry a “snatch strap”, an elastic tape like device used by one vehicle for towing another bogged vehicle out of mud or other complication.  Some advanced off-road enthusiasts carry more advanced recovery kit such as an electric winch, ropes, chains, hand winches, high-lift jacks and other gear not dissimilar to what can be found on various off-road equipment providers’ websites, such as: https://www.arb.com.au/products/recovery-equipment/

Some gear, such as an electric winch, is not portable and need to be properly installed on a vehicle. According to s.52, it seems that merely possessing this gear alone does not constitute a ‘rescue vehicle’. That said would applying at least one marking with the word ‘rescue’ such as these stickers to that same vehicle then effectively make it a ‘rescue vehicle’, even if not in the traditional sense? In ‘traditional’ I refer to Fire and Rescue appliances, Volunteer Rescue Association/State Emergency Service appliances and so on?

Can the same be said of that same ‘rescue’ sticker attached on a vehicle, but which only carries a “snatch strap”, still be called a ‘rescue vehicle’?

It seems that these groups, if not complying with the SERM Act, changed their wording to use ‘recovery’ rather than ‘rescue’ would this change their standing under the SERM Act?

Issues of rescue aside, would Good Samaritan provisions in the Civil Liability Act play any part in off-road enthusiasts helping others get out of trouble (not necessarily out of danger)?

First, my correspondent says ‘I’m unsure of other state legislation equivalent to the SERM Act, though I gather there are similar sections in similar acts.’  In fact, the State Emergency and Rescue Management Act 1989 (NSW) is unique to NSW.  I’m not aware of any legislation in any other jurisdiction that regulates ‘rescue’ in the way NSW does.

Where is the line drawn in terms of actual or threatened danger? Could these groups operate legally under the proviso that they don’t assist people subject to “actual or threatened danger” (assuming they then call the relevant authorities)?

The answer to that question is that there is no line.  The Act says what it says. If someone bothered to prosecute one of these organisations for providing an unaccredited rescue unit, and they chose to defend the allegation, a judge would have to make a ruling.  I think the judge could say that this sort of conduct is not the sort of conduct that the Act is aimed at on the basis discussed below.  If the matter was determined at Supreme Court level (or higher) then we’d have a case giving guidance on the ‘line’ but until then, all there is, is an argument.

I would argue that the organisations we are talking about are offering to rescue the vehicle more than the person (though of course they’re related, if the person’s vehicle is stuck, so is the person) and they’re providing a service the Fire and State Emergency Services are unlikely to offer.   If a person has ‘extended exposure to extreme temperatures [or] precariously placed vehicles on a cliff edge’ the ‘rescue’ service will come to get the person, but they are unlikely to take steps to recover the car.  If you ring triple zero and say ‘my car’s stuck but I’m fine’ then I suspect you will not get a fire or SES response.   For that they will say ‘call a tow truck or the local road service organisation’.

It does seem to me that they could make the argument that they are not dealing with the safe removal of a person ‘from actual or threatened danger of physical harm’ rather they are not removing the vehicles, not the person.  If they did say ‘if your vehicle’s about to fall off a cliff – call us’ then they may be sailing to close to the line, but if they say ‘if you’re in physical danger, ring triple zero, but if you’re just bogged and everyone’s safe, call us’ then I don’t think anyone would see that as a breach of the Act.

Do the groups meet the definition of “rescue unit” for off-road adventurers?

I don’t think they do for the reasons given above.  From what I can infer they’re not doing ‘rescue’ as their aim is not to safely remove persons, but safely recover their vehicle.

I agree that simply carrying the various items, even a permanently attached winch does not mean that the vehicle is ‘equipped for use in rescue work’ again given that the intention is salvage of the vehicle, not the sort of work that rescue services do to remove people who at risk of physical harm.   Intention must be relevant, because even a plumber’s truck might be considered ‘equipped’ for use in rescue work given that the tools a plumber has would be useful to help remove a person or animal caught in a drain, but that is not why they carry their kit.  I think the same must be true for people who like off road driving carry kit that can be used to recover their own vehicle and another person’s vehicle.

It seems that these groups, if not complying with the SERM Act, changed their wording to use ‘recovery’ rather than ‘rescue’ would this change their standing under the SERM Act?

The requirement for the offence under s 53 is that the vehicle is both ‘designed, adapted or equipped for use in rescue work’ AND has the word ‘rescue’ on it.  If the words ‘rescue’ are on a vehicle that is neither ‘designed, adapted or equipped for use in rescue work’ then the offence is not made out.  If my argument, above, is correct then the use of the word ‘rescue’ on the stickers doesn’t convert the vehicle to a ‘rescue’ vehicle.

Further one would have to consider whether a car that has the sort of stickers shown here, is ‘clearly marked with the word “Rescue”’.  Particularly when read in context, and the use of the word ‘rescue’ is not being used alone, I don’t think there could be any suggestion that they were holding themselves out as being a rescue service as understood by the State Rescue Board or the Act.

Even so, I do note that it is not my job to give legal advice to these organisations, but I do agree that the situation would be unambiguous if they used the word ‘recovery’ rather than ‘rescue’.

Issues of rescue aside, would Good Samaritan provisions in the Civil Liability Act play any part in off-road enthusiasts helping others get out of trouble (not necessarily out of danger)?

The good Samaritan provisions of the Civil Liability Act 2002 (NSW) would have no application. Those provisions are limited to people ‘assisting a person who is apparently injured or at risk of being injured’ (s 57(1)).  In other states’ the legislation is even more explicit that the aim of those sections is about first aid, not vehicle recovery.   The good Samaritan provisions will apply if, when they get there, they find the person is injured or unwell and they act, but they have no application to the action in recovering the car.