Today’s question was inspired by a youtube video demonstrating what happens if a trailer is not properly loaded – see https://www.youtube.com/watch?v=5rH-g7LDHeI. The question for this come from a NSW SES member’s discussion page and is this:
If a towed emergency services trailer becomes unstable because of the loading pattern:
- Is it solely the responsibility of the driver?
- Or if the designated driver has not been trained or tested as competent to load trailer so it does not become unstable; is the agency also liable?
- What might represent adequate training or a test of sufficient competence?
The answer depends on what type of legal issue you are considering.
That is the liability to pay damages for injury caused by an accident. If the accident involves personal injury or death, then it is the vehicles Compulsory Third Party (CTP) insurer that will meet the cost. For government vehicles that will probably be the Treasury Managed Fund established to meet government liabilities. In the case of vehicles that aren’t required to be registered (some NSW RFS vehicles) it will be the ‘nominal defendant’, an insurance scheme established by the Motor Accidents Compensation Act 1999 (NSW) to meet the needs of people injured by the drivers of uninsured or unregistered vehicles or where the vehicle at fault cannot be identified. The CTP policy (Motor Accidents Compensation Act 1999 (NSW) s 10):
… insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle.
The vehicle includes any trailer (s 3, definition of ‘motor vehicle’).
If the question is referring to liability to pay for damage done to any person injured as a result, the claimant would probably claim against both the driver and the owner (ie the agency) but the practical result is that it is the CTP insurer that is liable and they have no right to recover against the owner or driver. That is the point of insurance, to shift the loss so regardless of whose name appears on any claim, the liability lies with the CTP insurer.
If the accident causes damage to property, then the agency as both the owner of the vehicle and the manager of the volunteer or employed worker will be liable. An employer is vicariously liable for any negligence by an employee. With respect to volunteers, the Civil Liability Act 2002 (NSW) s 61 says:
A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work:
(a) organised by a community organisation, or
(b) as an office holder of a community organisation.
It follows that it will be the agency (or again, the Treasury Managed Fund) that will be liable for any damage done to any other vehicle or indeed to the agency vehicle.
It is the ultimate responsibility of the driver to ensure that the vehicle is safe but that does not mean that any accident will necessarily lead to liability. Consider the case of the Victorian firefighter who was convicted of dangerous driving causing death – Suspended jail sentence for firefighter involved in a fatal accident (October 24, 2009). In that case the driver was not exceeding the speed limit but, according to the sentencing judge, because he ‘knew the truck was top-heavy when filled with water, was driving it ‘‘just too fast’’.
The driver of a vehicle towing a poorly loaded trailer may be guilty of offences such as negligent driving or dangerous driving if he or she knows that the load is unsafe in the circumstances (as that DSE driver did) or if a reasonable person in the driver’s position would have known. In deciding whether or not the driver had committed any of those offences their level of training and instruction would be taken into account as well as the question of who loaded the trailer. A driver is less likely to be negligent if the agency provides a ‘standard’ trailer, a ‘standard’ kit list for the trailer and packing instructions in order to ensure that a member who goes to a trailer owned by another unit will know what is in there and where to find it. The driver may well, reasonably, think that way the trailer is packed is packed has taken into account load requirements. Where the trailer is packed by the unit, or the driver, the issues will be different.
A reasonable driver who is going to tow a trailer would take steps to ensure that he or she understands the risks and how to manage the vehicle and its load. The fact that a licensed driver is allowed to tow a trailer without any training or endorsement does not deny that a ‘reasonable driver’ (that hypothetical reasonable person of legal fiction) would not do so without informing him or herself as to what that requires.
In short, where there is a criminal offence there is no vicarious liability for that offence so if police allege an offence has been committed by the driver, it is the driver that is liable. That’s not an issue of the agency ‘leaving the member out to dry’ or the like. The issue of criminal liability is a matter for police and ultimately the court. The extent to which the agency’s training and processes are relevant would depend on the offence charged.
See also Driving overweight vehicles in the NSW emergency services (February 8, 2016).
Work Health and Safety
The Work Health and Safety laws impose an obligation on a person conducting a business or undertaking (a PCBU) to take steps, including training and the provision of information, to ensure a safe workplace (Work health and Safety Act 2011 (NSW) s 19; Work Health and Safety Regulation 2017 (NSW) r 39 ‘Provision of information, training and instruction’). The obligation extends to protect all workers, which includes volunteers (s 7).
If an agency allows members to drive and tow trailers without giving instruction on how to load the trailers, the towing capacity of the vehicle (Road Rules 2014 (NSW) r 294-2 Towing by vehicles under 4.5 tonnes) and some instruction to ensure the driver is competent to tow the vehicle then that may represent a breach of the agencies duties under the WHS Act.
The volunteer or employee also has an obligation to ‘take reasonable care for his or her own health and safety’ and ‘comply … with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act’. What is ‘reasonable’ will depend on what instruction and training (if any) has been given and any directives from the agency regarding trailers and their loads. In the absence of any information or training, the failure to ensure a safe workplace would belong to the PCBU.
What might represent adequate training or a test of sufficient competence is not something I can answer. The answer to that question depends on a risk assessment taking into account (Work health and Safety Act 2011 (NSW) s18):
(a) the likelihood of the hazard or the risk concerned occurring, and
(b) the degree of harm that might result from the hazard or the risk, and
(c) what the person concerned knows, or ought reasonably to know, about:
(i) the hazard or the risk, and
(ii) ways of eliminating or minimising the risk, and
(d) the availability and suitability of ways to eliminate or minimise the risk, and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
The whole focus of the WHS Act is not to prescribe what has to be done, but to impose obligations upon the PCBU to consider the risks in their undertaking and to tailor risk control measures that are applicable to that undertaking.
If a towed emergency services trailer becomes unstable because of the loading pattern is it solely the responsibility of the driver? The simple answer is ‘no; it’s not the sole responsibility of the driver’.
The more complex answer is that the agency for which that member volunteers or works also has obligations. Everyone is responsible for their own decisions. The agency is responsible, or accountable, for the decisions it made when selecting trailers, providing training and information etc. The driver is responsible for the decisions he or she made whilst driving and for the decisions he or she made about the load. What they could or should have done will depend on what they knew or should have known. That in turn will also be affected by the training and instructions offered (if any). How responsibility will be allocated in particular circumstances will depend on what happened and what if anyone knew of the risks. Remember that in the case of the Victorian firefighter referred to above, he knew ‘the truck was top-heavy when filled with water’. The outcome may have been different if he did not know that.
For a related post, see also: Maximum speed when responding with a trailer in tow, in NSW (January 16, 2017)