Today’s question comes from a member of one of NSW’s emergency services. My correspondent raises two, quite unrelated issues. By way of introduction my correspondent says:
I very much enjoyed your recent article regarding the coroner’s findings on Dungog … It is certainly relieving to find that the coroner affirmed the general consensus that we (rescue workers) have no positive duty to rescue.
My correspondent then goes onto ask the key question:
We are addressing section 5H of the CLA, which deals with obvious risks and the duty to warn. As I understand it, where a risk is obvious, there is no duty to warn (unless the exceptions apply). Imagine a situation where perhaps I park my rescue truck across a highway in order to fend off traffic and defend my emergency workers and crash victims.
I believe that my rescue truck would now constitute an obvious risk, especially in situations where there might be a blind corner or high speed limit involved. Occasionally, as the first agency on scene in rural areas, we would often not have enough vehicles to set up a forward warning station for oncoming traffic and concurrently attend the emergency. This normally means that oncoming traffic has reduced time to slow down.
My question is about how 5H applies to this situation. Assuming the risk is obvious and the other elements of negligence are irrelevant or proven, do we count as professionals for subsection 5H(3), would ambulance workers count as professionals or an emergency doctor working for ASNSW or Westpac? If we do, we are presumably required to warn of the risk in order to avoid a breach of duty as crashing into a rescue truck at 100km/h is clearly a risk to life. Would emergency beacons constitute a warning? If we were on a blind corner would we need to add sirens for it to count as a warning (ignoring the SES policy that requires sirens on a rescue site in preference for the reality that NSWPF normally require sirens off at rescues to enable clearer communication)? Would the physical mass of the rescue truck and the retroflective markings on emergency vehicle parked across the road be significant enough to constitute a warning?
The reference to the Coroner’s findings in relation to the Dungog flood was a reference to my post NSW Coroner’s findings into Dungog floods (October 2, 2017). Whilst this was not what my correspondent was writing about, what was written is worth commenting on.
A coroner does not determine legal issues or rights. A coroner reviews an event (a death or fire) and can make recommendations to avoid a recurrence of that event (see
- What is the difference between an inquiry and a court? (June 24, 2015);
- The role of the coroner (May 22, 2013); and
- Why being called before the coroner is worse than being sued! (June 26, 2009).
The Deputy State Coroner who conducted the inquest into the three deaths that occurring during the 2015 Dungog floods in no way ‘affirmed the general consensus that we (rescue workers) have no positive duty to rescue’. That was not an issue before the inquest and was not her finding. She actually made no comment on the flood rescues other than to acknowledge the neighbours of those who died who did rescue a number of people. The Coroner did not address whether or not the SES should have been there or had either generally, or specifically, a duty to rescue.
What the coroner noted was that flood struck between 5am and 7am. The Deputy Local/Unit controller was acting as IC until 5.30am when he was relieved by the Local/Unit Controller. There was evidence that the SES did respond to the home of one of the deceased between 5 and 5.30am. They assisted with moving equipment to higher ground and offered to assist her to relocate but hat offer was declined. Other people affected by the flood called triple zero for assistance at 6.30am, 6.31am, 6.34am 6.38am and 6.44am. The Coroner did not address whether the SES or NSW Fire and Rescue or NSW Police were under any legal duty to attend in response to those calls, or whether their response was reasonable or not. These were simply not matters that were before the coroner.
What she determined was that before the flood there was nothing to indicate to the SES that evacuations were required. By the time the water reached the flood gauges it had already done its damage in Dungog. In reaching that conclusion the coroner is not making any finding on issues of law, such as whether or not the SES owed anyone a duty of care and whether the response was or was not reasonable. Further the coroner was not talking generally but specifically – about this flood event.
A coroner’s inquest is NOT a court of law. It follows that nothing the coroner said, nor anything I said in my post, should be taken as an affirmation of ‘the general consensus that we (rescue workers) have no positive duty to rescue’.
Warning of a road hazard
We can now turn to the question my correspondent intended to ask. Section 5H of the Civil Liability Act 2002 (NSW) says:
(1) A person (“the defendant”) does not owe a duty of care to another person (“the plaintiff”) to warn of an obvious risk to the plaintiff.
(2) This section does not apply if:
(a) the plaintiff has requested advice or information about the risk from the defendant, or
(b) the defendant is required by a written law to warn the plaintiff of the risk, or
(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.
(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
Section 5H(2) could not apply in the circumstances being described. It’s relevant to a doctor treating a patient or recommending surgery who has to make sure the patient is fully informed. Even if rescue workers were professionals for the purposes of s 5H, when conducting a rescue they are not providing services to the other road users. Section 5H(2) is irrelevant.
The driver of a rescue truck, like every driver, owes a duty of care to other road users. That is a duty to act reasonably in all the circumstances. Those circumstances include the need to stop to perform the rescue and to position the truck to protect both the rescuers and those already injured and to protect other road users from running into the accident.
If you have a rescue truck parked across the road, particularly in a high speed zone and with a blind corner it is not an obvious risk. The reference to ‘blind corner’ must mean that it is not ‘obvious’. So there must be a duty to take reasonable steps to minimise the risk. Think about where you park the truck and activate the warning lights (beacons) – that is why they are there. By having flashing red and blue lights other drivers may be made aware of the hazard and so can take action to avoid it. It’s also why emergency vehicles are (hopefully) fitted with hi-vis markings (see John Killeen’s Ambulance Visibility Blog). If you have the resources you deploy people further back with slow/go bats and if necessary get council or police to close the road and divert traffic around the accident site.
Let me return to the questions:
… do we count as professionals for subsection 5H(3), would ambulance workers count as professionals or an emergency doctor working for ASNSW or Westpac?
It is my view that rescue workers would not count as professionals for the purposes of s 5H even if they are doctors. That is not the issue that the section is intended to address and further the ‘professionals’ are not rendering services to the other road users. Section 5H(2) and (3) are irrelevant.
If we do, we are presumably required to warn of the risk in order to avoid a breach of duty as crashing into a rescue truck at 100km/h is clearly a risk to life.
You are required to issue a warning because although the risk of crashing into a truck may be an obvious risk, the fact that a rescue truck is there may not be obvious particularly if it’s on a blind corner or it’s not clear that the vehicle is stationary.
Would emergency beacons constitute a warning?
Of course, that is why they are there. As a salutary warning remember the case of R v Wells  NSWDC 169, the case involving the RFS driver convicted of negligent driving occasioning death (see also Further prosecution over fatal RFS accident (August 17, 2016)). In describing what happened the judge said:
After the collision the accused drove the tanker into the break down lane. The Corolla was left stationary in lane 3. Its electrical system was damaged to the extent that none of its lights operated. It was completely unlit. Mrs Mihailidis, whilst perhaps injured in the collision, was alive. She opened the passenger door and released her seat belt. She was in the process of getting out of the car when she was struck by a third vehicle, this a Mazda driven by Ms Nicole Burton who was also travelling northbound. She was driving the Mazda in lane 3 and had been for some time. Her lights were on low-beam and as she approached the scene she looked towards the flashing lights of the RFS tanker to her left. She did not see the stationary Corolla until it was too late to avoid colliding with it. It was the collision between the Corolla and the Mazda which caused Mrs Mihailidis’ death.
Whilst it was not part of the Crown’s case that the failure to remain at the point of impact constituted the driver’s negligence, one can wonder whether the accident would have occurred if the fire appliance was stopped where the accident happened and not stopped in the left hand break down lane attracting Ms Burton’s attention and diverting her attention from the stopped car in lane 3.
If we were on a blind corner would we need to add sirens for it to count as a warning (ignoring the SES policy that requires sirens on a rescue site in preference for the reality that NSWPF normally require sirens off at rescues to enable clearer communication)?
Without checking, I’m willing to bet that SES policy does not require a stationary rescue truck to have its siren activated. Such a policy would make the rescue scene dysfunctional. It would serve no useful purpose to oncoming drivers who would have trouble locating where it is coming from. I’m willing to bet the statement ‘SES policy that requires sirens on a rescue site’ is a misunderstanding or misreading of the policy.
If you’re parked on a blind corner you need to think about what can be done, with the resources, to better communicate with drivers. Ask someone who can’t get past your truck to park their car further back and turn the hazard lights on?
Would the physical mass of the rescue truck and the retroflective markings on emergency vehicle parked across the road be significant enough to constitute a warning?
Again that’s clearly why the hi-vis markings are on the truck. If it’s parked across the road with its emergency warning lights on and hi-vis markings that’s got to be the minimum warning you can give. If you can give a more effective warning would depend on the resources available.
This whole argument assumes that the rescue service is the only service on scene. As other services – ambulance, fire, police, council, tow trucks etc arrive, there is more opportunity to warn oncoming drivers of the hazard on the road. And to draw on my own experience in a rural volunteer rescue squad, we were never first on scene.
A road user has a duty to all other road users. Parking a vehicle across the road is clearly creating a hazard so there’s a duty on most of us not to do it. For those that are required to do it, there has to be a duty to warn other road users. That is why emergency vehicles are painted in hi-vis designs and fitted with warning beacons. There has to be an obligation to use them. Section 5H of the Civil Liability Act 2002 (NSW) would have no application in the circumstances described.