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)
Michael, the Victorian firefighter you mention in this article was actual a paid Dept of Sustainability and Environment (DSE), now know as Dept of Environment, Land, Water and Planning (DELWP) firefighter driving a DSE fire tanker. http://www.smh.com.au//breaking-news-national/firefighter-avoids-jail-over-crash-death-20091023-hcx1.html
Peter, the article linked from my post doesn’t seem to say what agency he was with. Another says he was a CFA volunteer but does refer to his DSE tanker, so thanks for clarifying that.
Where does Chain of Responsibility legislation fit on with this or is that more for commercial vehicles and cartage of loads?
I think you are referring to the ‘chain of responsibility’ laws that apply to the heavy vehicle transport industry – see https://www.nhvr.gov.au/safety-accreditation-compliance/chain-of-responsibility. Clearly they don’t apply in this context but the idea is consistent with WHS legislation. That legislation is designed to move up the chain of responsibility to deal with those responsible for work culture. Once upon a time an employee couldn’t sue for workplace injuries if he or she was injured due to the negligence of a fellow worker or in any way contributed to their own injury. Injury was always the fault of the person with the least ability to control the work processes. Modern WHS and workers compensation laws move away from that, and that is why the PCBU can be liable if workers are exposed to risk including risk from their own behaviour, and why it is usually the PCBU and rarely the worker, that is prosecuted for WHS breaches. So the concept of the chain of responsibility is very much built into WHS legislation, it’s just not called that. It’s also part of the reason why an employer is liable for the negligence of the employee.
In terms of criminal law I did say that it depends on the facts and the allegation. A person is responsible for the decisions they make but that responsibility depends on what they knew, believed or intended (depending on the offence). The driver who doesn’t know the trailer is unsafe is in a different position to the driver that does know that. So the chain of responsibility there can also direct to who is the correct defendant see for example http://www.adelaidenow.com.au/news/south-australia/waste-company-cleanaway-charged-over-horrific-2014-freeway-truck-smash-that-killed-two-people/news-story/cbcd929c263792a4fe7f2def89b0eb6e and http://www.abc.net.au/news/2015-08-21/trucking-boss-peter-colbert-jailed-for-drivers-death/6714506
Thank you Acting Professor Michael Eburn;
I’ll post this over on your page under that most helpful response too,
which included the particularly and specifically the obvious duty of care suggestion for the PCBU (be that a state or a local government) to list a standard trailer (CES) and standard packing guide lines.
Some groups over the years had attempted that but those seldom got standardised across the units let alone the the State ES.
Some years ago when offering some feedback on a dedicated storm-damage trailer selection; I had some concerns with the back part of the trailers being potentially allocated (loaded) to wet sand bags.
The youtube clip wasn’t available at the time so my feed back at the time couldn’t be anything more than just ‘Concerns about stability’.
And I don’t believe I was the only one with those ‘concerns’ either!
Those who are paying attention to this and who pull the purse strings may wish to allocate some engineering modeling task to some local universities.
ie for QUT; CQU or USQ
Another minor detail I understand your response would be more from your own familiarity; being NSW.
As you correctly guessed I was questioning from a number of experiences most of which were Qld based, not NSW.
If resources (Students? or time permit) are available; a comparison to the relevant parts of the other states ES legislation & WH&S legislation
2nd paragraph under ‘Criminal Law’
“The driver of a vehicle towing a poorly loaded driver may be guilty of offences such as ……..”
I believe you meant the ‘ poorly loaded driver’
to mean ‘ poorly loaded trailer’
the extract of the NSW legislation which included
”what the person concerned knows, or ought reasonably to know,”
I’ve observed that some will take that out of proportion or context to
blame-the-volunteer-driver or blame-the-victim.
Thanks Edward, I’m a member of a number of facebook groups and I did think this question was on a NSW only group but I see now that it wasn’t. The answer will be the same in Queensland however. The Work Health and Safety Act 2011 (Qld) is based on the national model legislation as is the NSW one. The CTP insurance arrangements are also, for all intents and purposes, the same (see Motor Accident Insurance Act 1994 (Qld)). The road rules are also based on a national model. So the answer in Queensland, or any Australian state or territory, would be the same with some variations on the references. As for the extract from the WHS legislation, it says what it says.