Today’s question comes from a volunteer with Victoria’s Country Fire Authority who asks a question about the Road Safety Road Rules 2009 (Vic) r 306. As readers of this blog know, r 306 is the general exemption for the drivers of emergency vehicles. Today’s correspondent says:
An incident occurred last year which bought into question the use of reg 306. A member at my brigade states that reg 306 is only for use for emergencies. This member is a driving instructor.
The question I have now is, “Is reg 306 exclusive to emergency use only” My understanding is that reg 306 is not limited by an emergency situation. Reg 306 provides an exemption to a provision of the Road Safety Road Rules 2009 if the following conditions are met;
– You must be a driver of an emergency vehicle
– You must take reasonable care
– It must be reasonable that the road rule not apply
– If the vehicle is moving you must display a red or blue flashing light or sound an alarm.
While I understand that an emergency response would likely be a reason that the road rule should not apply, previously I have used this exemption in situations I would not deem as an emergency.
An example was, while driving a fire fighting vehicle back from some training, I came across a motorbike rider whose motorbike had broken down at major intersection. I turned on my red and blue flashing lights and escorted him out of the intersection to a safe location away from the traffic hazard. I would not think this to be an emergency response and certainly not something a member of the public would call upon the fire brigade for. I believe I had met my exemption conditions under reg 306.
Reg 306 does not mention emergency response as a reason for a provision not to apply.
Whether r 306 mentions ‘emergency’ depends on what state you are in. The Road Rules 2014 (NSW) define an emergency vehicle is a vehicle driven by an emergency worker provided that the emergency worker is providing transport ‘in an emergency’, ‘in the course of an emergency’ or ‘in the course of a fire or rescue emergency’.
In Victoria, what is an emergency vehicle is defined by who operates the vehicle rather than the purpose for which it is being used. Relevantly an emergency vehicle includes ‘a fire service unit under the control of— … (iii) the Country Fire Authority…’.
As my correspondent has noted, r 306 in the Road Safety Road Rules 2009 (Vic) 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.
The rule does not use the word ‘emergency’ nor is it implied by the definition of ‘emergency worker’ or ‘emergency vehicle’. But even if ‘emergency’ was implied it simply begs the question of ‘what is an emergency?’ One can be confident that responding to a triple zero fire call is responding to an emergency, but in these days of all hazards and all agencies response does an emergency have to be a fire alarm? Assume that a CFA crew is returning to station and they see a pedestrian hit by a car. They park the appliance in order to protect the person from oncoming traffic, get out and commence first aid and also turn on the red/blue warning lights in order to warn other drivers and increase their own protection. This is not a job that people would call the CFA too but it is an emergency and I don’t think anyone would suggest that the driver of the CFA appliance could not rely on r 307 in relation to parking in the middle of the road.
So in the scenario given by my correspondent. The broken down motorcycle is a hazard for road users including the rider. Helping to make the scene safe seems appropriate and why is that not ‘an emergency’?
And this is something anyone can do. Rule 165 says:
It is a defence to the prosecution of a driver for an offence against a provision of this Part if—…
(c) the driver stops at a particular place, or in a particular way … to assist a disabled vehicle, and the driver stops for no longer than is necessary in the circumstances;…
Accordingly, a private citizen could pull up behind a broken-down vehicle and put their hazard lights on whist they helped (see also Road Safety Road Rules 2009 (Vic) r 221 ‘Using hazard warning lights’). Whilst escorting the rider off the road isn’t stopping or parking, II can’t imagine anyone including the highway patrol taking issue with a driver escorting a person pushing a motorcycle to reduce risks to the rider and other road users.
To return to the emergency services, rule 306 is not a prohibitive rule, it does not say ‘you must not …’ It is a permissive rule, it says ‘you may…’ Our scenario begs the question of what rules did the driver of the CFA appliance break? Putting on the red/blue lights is not an offence (remember r 306 is permissive not prohibitive). Escorting the rider (I’m assuming the rider was pushing the bike) doesn’t necessary imply any breach of any road rules in which case r 306 is irrelevant. Driving with the red/blue lights on but following all the road rules is not an offence, it’s just silly as it would confuse every other driver and increase risk – it may be a failure to take ‘reasonable care’ but that does depend on the circumstances. If the vehicle is travelling slowly because they are behind slow moving traffic (ie a motorcycle that is being pushed) it might be quite reasonable but in that case the actions don’t call up r 306.
In summary, the driver of an emergency vehicle (a CFA appliance) can do things other drivers cannot do provided they take care and it is reasonable. What that means is that the driver does not do something wrong if he or she activates the red/blue lights when they think it is necessary in order to secure their safety. They may do something wrong if they drive contrary to the road rules and, ultimately, a court decides that they were not taking care or that the rule should have applied (see Road traffic exemption – Who determines if it is reasonable that the provision should not apply? (May 22, 2016)).
It is certainly a good rule of thumb that the red/blue lights should only be used in ‘an emergency’ but that simply begs the question of what is an emergency? It can’t be something that someone would ring a fire brigade for as that is far too narrow. Fire brigades respond to many jobs that members of the public would not call them for. Equally most emergencies that the emergency services respond to are not an emergency for them – a house fire is an emergency for the people in it, but it’s just another day at the office for firefighters. A broken down motorcycle is not an emergency for people safely in the cabin of their fire appliance but it is for the rider who is at risk, and for other road users given the risk that the bike or other vehicle poses. So, if r 306 only applies in ‘an emergency’ I don’t see why that wasn’t one – it may not be reasonable to respond from the station to that scene under lights and sirens, but being there, putting the red/blues on in the manner described seems reasonable to me. Even if it is not an emergency, as my correspondent has noted, r 306 doesn’t refer to an emergency. If the action of the CFA driver was ‘reasonable in the circumstances’ then he or she can seek to rely on the rule should he or she be issued with an infringement notice for some breach of some other road rule.
For your reference, according to the Emergency Management Act 2013 (Victoria) an emergency is defined as –
Thanks Deke, and that could be relevant but I don’t think that definition, or ones like it, are transferrable to the road rules. For a start an ambulance proceeding as a single vehicle response to a person with a heart attack is responding to someone’s emergency but it wouldn’t seem to fit that definition. And rules relating to emergencies on the road eg r 165 include things that would not be an emergency for that purposes. As noted, even if that definition were relevant, r 306 doesn’t make specific reference to or require an ’emergency’.
From my limited understanding, you could argue that in your example, in Victoria, that r 306 does not apply as the ambulance service is responding to a persons emergency. However, if the same service is responding to the same location for the purposes of say, entertainment, the r 306 would apply. As in to say, the service can not drive down the opposite side of a roadway going to the movies, conversly, they can if there is a heart attack patient requiring urgent assistance.
If there is no clear definition of what an emergency is in the road rules, then l would suggest that as it is defind in other acts of parliament, ie under EMA, then the meaning would be the same for the road rules.
Maybe that is an issue that needs clarification by the authories as they have not defined it clearly enough in the road rules.
Also, my very limited interpretation of r 306 allowes drivers of an emergency services vehicle whilst on duty and actively responding to an emergency, legal authority to disobey certain road rules is safe to do so, and not be held criminally responsible.
But thats my limited interpretation…. l have been known to be wrong in the past! lol
Rule 306 only applies when it is reasonable to exempt the driver of an emergency vehicle from the application of a particular rule. It would not be ‘reasonable’ if they were going to the theatre but would be if they were going to a patient with a heart attack so the nature of the call is clearly relevant. Having said that the emergency services go to things that do not fit the definition of emergency in the EM Act hence my claim that I don’t think the EM Act can be simply applied to the road rules. Remember too that the point of this post was that r 306 (at least in Victoria) doesn’t actually use the word ‘emergency’ as a condition for the application of the rule.
This isn’t really an issue that needs clarification, as clarification removes flexibility. As it is the rule can be applied when it is ‘reasonable’ to do so and that allows for circumstances to be considered (see When is a member of the emergency services an ‘emergency worker’ for the purpose of the Road Rules 2014 (NSW)? (January 5, 2017)). The scenario of helping the motorcyclist off the road is unlikely to be caught by any definition but is it ‘reasonable’?
Rule 306 is a defence provision. It means the police or a magistrate can say ‘this driver did nothing wrong’ and so not issue a penalty when other drivers would be penalised. People still say (wrongly) there is no exemption for emergency services, it’s just the police turning a blind eye (see Australian Road Rules and emergency vehicles (July 27, 2012)). That’s contrary to the rule of law so r 306 gives the law enforcement agencies an ‘out’.
For the driver it does mean that if they get a driving infringement notice they can take the matter up with the police and, ultimately, a court to argue that their actions were reasonable in the circumstances and that therefore they are ‘not guilty’ of the traffic offence alleged.
Remember that the rule only applies to provide an exemption from the other rules set out in the Road Safety Road Rules 2009 (Vic). More serious offences such as those set out in the Crimes Act 1958 (Vic) are not exempt so it’s not the case that r 306 provides for no criminal responsibility.
In Victoria for fire emergency services there is a critical filtering ‘Triage’ process with regard to CAD (Computer Aided Dispatch ) and the initial level of Emergency Response required for a turnout. Code 1 lights -sirens required for ‘designated emergencies’ or a Code 3 response expects no such exemptions. What constitutes an ’emergency’ is however subjective (cat up tree or mould on cheese) would not expect or demand an emergency response. However problems can occur when emergency units choose to ‘self deploy’ Code1 to jobs, which are initially interpreted and based on goodwill informants (knocking on the station door demanding a response) … Having said that, an emergency has the potential to drag on for many days, so the level of response for an agency or vehicles can be ‘down’ or ‘upgraded’ accordingly.
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