Today’s question comes in two parts:
I’ve just seen two different incidents on the news.
1. A man appealed his conviction against “fail to stop after an accident” I presume it was in the District Court NSW, part of his defence was that no such requirement is stated in the “NSW Drivers manual”.
According to the news report the Judge made a statement that “it’s does not have to be, its basic common sense to stop and help” Questions, is this statement supported in Law?, and does the comment impose a “duty” to help/rescue? I presume the necessity upon a driver to stop after an accident is in fact contained in the Act. How far or how much can a driver who stopped do or better HAVE to do?? I presume you don’t have to dive into a burning car to rescue a trapped person. Each incident would be different and sometimes all you could do was call 000.
Which brings me to the second incident,
2. The Police were actively involved in a car chase, the offending driver drove down a boat ramp and into the water the car proceeded to sink some Police dived in and rescued the driver and one Officer was injured. Question I told my wife the Police did not have to do that, or does the fact a Police chase was involved do they have a greater “duty of care” My wife stated it’s their job to rescue that driver, I say no.
Any comments from you would be interesting.
This is a link to a news report of this story:
I’m not sure what is meant by the NSW Driver’s Manual – I assume he’s probably referring to the Roads and Maritime Services Road Users’ Handbook. The version issued in April 2017 says (at p. 151):
If you are involved in a crash you must stop immediately and give as much help as possible to anyone else involved in the crash. If anyone is injured or killed, you should call the Police and Ambulance – dial 000.
It’s not clear when this accident happened but the story says he was originally sentenced in May 2017, so there may have been a different edition of the Handbook at the date of the accident or when this driver got a licence. It follows that we don’t know what the defendant was talking about, but let us assume there was a version of a ‘Drivers’ Manual’ that didn’t explain the driver’s obligations. But so what; a handbook is not the law hence my advice to law students is ‘don’t take your law from what the government department says the law is’. They interpret the law, but if you want to know, read the Act and its relevant rules and regulations.
The relevant rules are found in the Road Transport Act 2013 (NSW) s 146 and the Crimes Act 1900 (NSW) s 52AB. The Road Transport Act 2013 (NSW) s 146 says:
A person is guilty of an offence if:
(a) a vehicle or horse being driven or ridden by the person on a road is involved in an impact occasioning the death of, or injury to, another person, and
(b) the person knows, or ought reasonably to know, that the vehicle or horse has been involved in an impact occasioning injury to another person, and
(c) the person fails to stop and give any assistance that may be necessary and that it is in the person’s power to give.
Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).
(A penalty unit is $110; Crimes (Sentencing Procedure) Act 1999 (NSW) s 17).
Where the accident causes death or grievous bodily harm, the obligation to stop and render assistance is found in the Crimes Act 1900 (NSW) s 52AB. That section is in the same terms but the maximum penalty becomes 7 years imprisonment if the accident causes grievous bodily harm, or 10 years imprisonment if the accident causes death.
Let me turn to the specific questions:
Q. Is this statement [“…ts basic common sense to stop and help”] supported in Law?
A. There is no general duty to rescue so there is no duty to stop and render assistance just because you see or come across an accident but any driver that is involved in an accident must stop and render assistance – Road Transport Act 2013 (NSW) s 146 and Crimes Act 1900 (NSW) s 52AB.
Q. Does [it] impose a “duty” to help/rescue?
A. Yes, the driver must ‘stop and give any assistance that may be necessary and that it is in the person’s power to give’.
Q. I presume the necessity upon a driver to stop after an accident is in fact contained in the Act.
A. Yes, s Road Transport Act 2013 (NSW) s 146 and Crimes Act 1900 (NSW) s 52AB.
Q. How far or how much can a driver who stopped do or better HAVE to do?? I presume you don’t have to dive into a burning car to rescue a trapped person. Each incident would be different and sometimes all you could do was call 000.
A. As noted they must provide the assistance that is in their power to give. As my correspondent has noted that will be different in all the circumstances. In some cases it may mean no more than notify the emergency services (see the discussion in Further legal ruling affecting ‘Doctors as ‘good Samaritans’ – do I have to stop? (January 3, 2015)).
An vehicle is involved in an accident if vehicle ‘A’ causes ‘… an impact between other vehicles or between another vehicle and any object or person or causing another vehicle to overturn or leave a road…’ Road Transport Act 2013 (NSW) s 146 and Crimes Act 1900 (NSW) s 52A(6). If a vehicle is involved in a collision either with another vehicle or any thing whilst part of a police pursuit, it could be argued that the police vehicle was ‘involved’ in the collision. That would impose a duty on police to stop and assist.
Equally the police would have an obligation to those involved in the accident to render assistance as part of the expectations of a police officer (see the discussion in NT police officer gaoled for failing to render assistance (October 31, 2016) but note that was an extreme case of dereliction of duty).
It is also of interest to note that a death that occurs ‘as a result of police operations’ must be investigated by the coroner (Coroners Act 2009 (NSW) s 23). Police would probably want to ensure that they can satisfy the coroner that they took whatever steps they could to provide assistance.
Like anyone however, the police officer’s obligations are to do what is reasonable. They do not have to risk their lives. That police are willing to go ‘above and beyond’ that demand is what earns them the respect and honours for their actions. So did they have to enter the water, smash the window and remove the person from the sinking car? It’s hard to say given that they did do it, but if they really did decide the risk was too great, they would not have been under an obligation to do so – for a discussion on the duty of police and firefighters in the US who refused to enter water to do a rescue see US city not liable for failure to rescue (February 13, 2013).
Yes, there is a duty on all road users who are involved in an accident to stop and render assistance.
As for police the fact that the accident occurred during a police pursuit will mean that police have a duty to render assistance to those involved. But that duty will only be a duty to do that which is reasonable. It is not a duty to risk one’s own life.
It has been suggested that because the rules, quoted above, refer to death or injury that there is no obligation to stop if no one has been injured. That is not correct. The Road Rules 2014 (NSW) r 287 provides that a driver involved in any collision ‘must stop at the scene of the crash and give the driver’s required particulars … to:
(a) any other driver (or that driver’s representative) involved in the crash, and
(b) any other person involved in the crash who is injured, or the person’s representative, and
(c) the owner of any property (including any vehicle) damaged in the crash (or the owner’s representative), unless, in the case of damage to a vehicle, the particulars are given to the driver of the vehicle (or the driver’s representative).’
See also Obligations of a driver involved in an accident (May 4, 2016)
What about a pedestrian standing near the scene of an accident?
Is a pedestrian a “road user”? a “highway” includes the footpath.
I understand that to stop and assist applies to any license holder but what about a pedestrian?
The Act, which is quoted in the post says one has to stop if ‘a vehicle or horse being driven or ridden by the person on a road is involved in an impact occasioning the death of, or injury to, another person’. That’s not a pedestrian. The duty to stop is a duty on those involved in the accident not those near it.
In the recent case in Victoria where a speeding car is stopped by police and whilst stopped the driver was standing outside his vehicle where unfortunately a truck struck the police car killing all four officers. The car driver left the scene of the accident.
I wondered though that although he is a jerk but did he actually leave the scene of the accident that he was not involved in? I think the law says all road users should stop and render assistance whether part of an accident or not.
See https://www.abc.net.au/news/2020-04-23/victoria-police-officers-killed-kew-eastern-freeway-crash/12175656. That story says he’s been charged with failing to render assistance but his vehicle was involved in the crash so that makes him part of it. S 61 of the Road Safety Act 1986 (VIc) imposes a duty ‘If owing to the presence of a motor vehicle an accident occurs whereby any person is injured or any property (including any animal) is damaged or destroyed…’ The accident occurred due to the presence of his vehicle and whilst one could argue if he was out of the car there was no ‘driver’ I don’t think that would work. It would be common usage to look at an unattended car and ask ‘who’s the driver of that?’ even if at that time no-one is. But whether he will be convicted of that offence remains to be seen.
The Road Safety Act defines a “driver“as a person who is in charge of the motor vehicle for the purpose of S61.