This question comes from NSW but the answer will be the same nationwide. The question relates to
… NSW RFS driving SOPS and law on the potential use of an driver for a truck whereby the driver doesn’t have an adequate licence level (e.g. the driver may only have a car licence).
While it may seem common sense that only drivers qualified and trained to use the trucks do so each time, my questions are in relation to the more obscure and very rare situations that may occur.
The underlying question is, is there a scenario where an unlicensed driver may legally operate or drive an RFS truck?
Scenarios where this may arise include:
- the truck is on a fireground and the driver is unable to drive the truck due to injury or some sort of emergency medical situation, the truck needs to be moved off the fireground for safety reasons.
- the truck needs to be moved from inside the station to the awning (not on the public road) so it can be checked/serviced, or vice versa where a driver may not be available or otherwise occupied.
- If the truck remains off public roads, is there some level of RFS officer that can authorise an unlicensed driver to drive the vehicle?
- Is there some sort of emergency situation where an unlicensed driver can operate a vehicle such as this on a public road?
- A parallel question is at what point is a person considered to be driving a vehicle, is it when they sit in the driver’s seat, start the vehicle or when the vehicle is moving?
The simple answer is ‘no a driver must have the relevant licence because of the risk to themselves and to everyone else’. But, having said that, I would anticipate that it would not be considered an issue in a true, life threatening emergency such as that described above, that is ‘the truck is on a fireground and the driver is unable to drive the truck due to injury or some sort of emergency medical situation, the truck needs to be moved off the fireground for safety reasons’. In most cases the appropriate thing to do will be get on another truck or get someone sent to you to drive it home. If an unlicensed driver does drive it because of an urgent and immediate threat to life, they need to stop as soon as they can, that is as soon as they are out of the immediate danger. In that case, provided they don’t crash, it is unlikely that anyone would take action and one could make a ‘necessity’ argument (see The Doctrine Of Necessity – Explained (January 31, 2017)).
I would think the appropriate test for any firefighter (or anyone else) would be – ‘am I prepared to wear the prosecution?’ So if the fire appliance is in the path of the fire, the only licensed driver has had a heart attack, you might say – this might be illegal but I’m not going to wait here to die, and let my mate die too – in which case drive it and be prepared to wear the consequences. If nothing happens, or the police take no action, or a magistrate acquits well and good. But if not, you need to be happy with the decision and say ‘that was a price I was prepared to pay’. Equally if you are asked to move the appliance onto the driveway ask yourself ‘am I prepared to be prosecuted for this’ and if the answer is ‘no’, don’t do it.
You need a licence to drive on a public road or road related area. A ‘road related area’ is (according to the Road Rules 2014 (NSW) r 13):
(a) an area that divides a road,
(b) a footpath or nature strip adjacent to a road,
(c) an area that is not a road and that is open to the public and designated for use by cyclists or animals,
(d) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles.
A road or road related area includes a service station and car park. If it did not idiots could use them to drive unregistered and unsafe cars and people injured in accidents could not get compensation from the motor accidents scheme. It will also include the driveway in front of the fire station.
If a vehicle is not on a road or road related area, you don’t need a licence to drive it. That is why farmers have unregistered paddock bashers and farm kids can learn to drive. Whether the RFS wants to allow someone to drive their appliance in those circumstances is a matter for the RFS.
There is no emergency situation where an unlicensed driver should be driving an emergency vehicle. We’ve noted in earlier posts regarding the need to take reasonable care, and that whatever the emergency it does not warrant risking other lives. A fire, flood, road accident etc are not emergencies for the emergency services, they are their daily work and they need to be planned for and that includes having relevant drivers. If there is no-one licensed to drive the truck, that brigade or station must be ‘off line’.
The Road Rules 2014 (NSW) say ‘”drive” includes be in control of’. The Road Transport Act 2013 (NSW) says ‘drive includes: (a) be in control of the steering, movement or propulsion of a vehicle…’ The Roads Regulation 2008 (NSW) r 3 says ‘“drive includes ride or draw (in relation to a vehicle) and ride or lead (in relation to an animal)’.
A person who attempts to exercise any control over the vehicle, whether they are in the driver’s seat or not, is a driver, so a passenger who steers the vehicle or applies the handbrake may be considered the driver. In Cordwell v Carley (1985) 31 A Crim R 291 Grove J found that a person who was asleep in the driver’s seat was a driver. He said “The test of whether a person is driving a vehicle is whether he has the means of control of the vehicle at his disposal.” In the course of his judgement he quoted Langman v Valentine  2 All ER 803
… where a pupil sat in the driver’s seat and had her foot in position to use, and did use, the accelerator, foot brake and steering wheel whilst the instructor sat in the front passenger’s seat with one hand on the hand brake and the other on the steering wheel, the ignition being in convenient reach. Lord Goddard CJ said:
“ … on those facts (the justices) could find … that (the instructor) was a driver. I do not think it is impossible either in law or in fact to say that there can be two drivers at the same time, two people controlling the car. One may be controlling the starting and one may be controlling the stopping and they both may be controlling the steering, although that may be rather a perilous thing to do.”
Other cases cited, where people were found to be the driver, included pushing a vehicle with no-one in the driver’s seat, steering a vehicle down an incline with the engine off, a person in the passenger’s seat who woke to find the car rolling down the hill so attempted to steer it.
In Westlaw’s Motor Vehicle Law (NSW) the authors say:
… the courts have not developed a single test with which to determine whether a person was driving a vehicle. Instead, the courts have, depending on the circumstances, had regard to a number of factors, including:
- the extent of control in fact exercised by the defendant over the movement of the vehicle,
- the extent of the defendants capacity to control the vehicle,
- the source of the vehicles propulsion,
- the position of the defendant in, or in relation to, the vehicle,
- the perceived legislative policy underlying the statutory scheme in question, or
- a combination of some or all of those matters.
The determination of the question involves a finely balanced decision and a question of degree and circumstances.
I would suggest if you are in the driver’s seat and the engine is on, then you are a driver. Merely sitting in the driver’s seat, eg when at open days children are allowed to sit in the driver’s seat, without more, would in most circumstances not constitute being the driver. But if the engine’s on, or the vehicle’s moving, then anyone who is exercising control over the vehicle is a driver.
Thanks Michael for another informative and timely post.