Today’s correspondent is an

… enthusiastic motorcycle rider based in the Sydney area.  Over the past few months I have found myself face-to-face with emergency vehicles driving on the wrong side of the road. I have seen this happen quite a few times over the years and recognise that emergency vehicles responding with lights and sirens will cross to the wrong side of the road to by-pass traffic congestion.

I have had the misfortune to have had a couple of very near misses with emergency vehicles driving in this manner where the drivers very obviously did not see me before they crossed to the wrong side of the road. In the first instance, a fire truck drove over a central reservation and missed me by less than a metre and the second instance an ambulance turned a corner directly in to my path.

Is there a specific a law which allows the emergency vehicles to drive in this manner? If there is a collision between a civilian motorist driving legally on the correct side of the road and an emergency vehicle with lights and sirens, where is the liability? Is it the fault of the civilian motorist for not yielding to the emergency vehicle?

This question revisits a number of matters that are frequently discussed here, but there’s no harm in returning to them for the benefit of new readers and because rules do change.  I’m not given a jurisdiction but given we have national road rules, the jurisdiction doesn’t matter.  I’ll use the Road Rules 2014 (NSW) as my reference.

The relevant rules are rr 78, 79 and 306.  They say, respectively:

78 KEEPING CLEAR OF POLICE AND EMERGENCY VEHICLES

(1) A driver must not move into the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.

Maximum penalty: 20 penalty units.

(2) If a driver is in the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm, the driver must move out of the path of the vehicle as soon as the driver can do so safely.

Maximum penalty: 20 penalty units.

(3) This rule applies to the driver despite any other rule of these Rules.

79 GIVING WAY TO POLICE AND EMERGENCY VEHICLES

(1) A driver must give way to a police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.

Maximum penalty: 20 penalty units.

(2) This rule applies to the driver despite any other rule of these Rules that would otherwise require the driver of a police or emergency vehicle to give way to the driver.

306 EXEMPTION FOR DRIVERS OF EMERGENCY VEHICLES

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 obligation to ‘keep left’ is found in the Road Rules – rr 129-139 so r 306 is applicable.

To then turn to my correspondent’s questions:

Q. Is there a specific a law which allows the emergency vehicles to drive in this manner?

A. Yes, the specific law is r 306 of the Australian Road Rules, in NSW that’s r 306 in the Road Rules 2014 (NSW). That law does not allow the driver of an emergency vehicle to drive in a manner that is dangerous but it does allow them to drive on the wrong side of the road provided they are responding to an emergency (see Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017)), they are taking reasonable care and that the decision is reasonable in the circumstances.

Q. If there is a collision between a civilian motorist driving legally on the correct side of the road and an emergency vehicle with lights and sirens, where is the liability? Is it the fault of the civilian motorist for not yielding to the emergency vehicle?

A. There is no simple answer to that. In terms of civil liability courts apportion it – how much was each drivers’ fault. In South Australian Ambulance Transport Inc. v Wahlheim [1948] HCA 12 Latham CJ was considering the obligation to give way to vehicles on the right.  Fire brigade and ambulance vehicles were exempt from the rule (just as they are today).  Latham CJ said:

… the exemption of ambulances from the application of the section, while it prevents any prosecution of the driver of an ambulance for failing to comply with the section, does not entitle an ambulance to drive ahead regardless of other traffic. A duty of care exists in the case of exempt vehicles as well as in the case of ordinary vehicles, though the standard is not the same in each case. The driver of an exempt vehicle must be taken to know that drivers on his right will expect to be given the right of way and will not be as prepared to stop as in the case of drivers with traffic on their right. The driver of an ambulance must drive upon the assumption that other people will observe the rules of the road; that they will accordingly look out to their right (s. 131) and that they will expect to be given the right of way by vehicles on their left. Thus the fact that s. 131 does not apply to ambulances does not relieve the defendant of liability for negligence if in all the circumstances there was a failure to exercise due care.

That is consistent with the obligations on the driver of an emergency vehicle to take reasonable care knowing that others won’t expect to see a vehicle on the incorrect side of the road.

On the other hand, drivers of other vehicles are expected to give way to emergency vehicles.  In another South Australian case, Hine v O’Conner [1951] SASR 1 Abbot J said (at pp. 4-5):

He [the bus driver] was not, however, entitled to consider himself as having “an open road” across that intersection because a “Stop Sign” is not always obeyed by drivers of vehicles … And, of course O’Connor is presumed to know the law that fie-engines on their way to a fire, as well as other specified vehicles, are exempt from the duty of obeying such “Stop Signs”.

Equally drivers may know that there may be many hazards on their side of their road, including on-coming emergency vehicles.

A court will look at all the circumstances to apportion liability between the drivers:  Who could see what? Who should have seen what?  How much care was each driver taking? The driver of an emergency vehicle knows that they are on the wrong side of the road, but other drivers’ have to keep a lookout for emergency vehicles? What were the ambient conditions? Etc.  Whilst the apportionment will vary with each case, we can say with a great deal of confidence that if ‘there is a collision between a civilian motorist driving legally on the correct side of the road and an emergency vehicle with lights and sirens’ then both drivers will be held to be at fault.

In terms of criminal liability, I have said before that a rule of thumb is that the driver of an emergency vehicle can do whatever they like provided they don’t crash; once they crash all bets are off.  A driver on the wrong side of the road who collected an oncoming vehicle (motorcycle or not) is prima facie not taking reasonable care.  Even if r 306 does apply to say that there is no offence in failing to keep left, that does not excuse the driver from offences such as dangerous driving causing death or serious injury (see again Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017)).

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