Today’s correspondent asks for my

…  opinion on the following:

Prior to the Metropolitan Fire Brigade (MFB) ceasing to exist on July 1, the Metropolitan Fire Brigades Act 1958 – section 32B stated that “On an alarm of fire being received by a unit, those members of the unit specified by the Chief Officer must, with the appliances and equipment specified by the Chief Officer, proceed with all practical speed to the scene of the alarm of fire.”

Historically, it is my understanding that MFB used this particular section of their Act, particularly the phrase “practical speed”, as a justification for proceeding code 1 (emergency response) to the vast majority of calls. The only exception was less-common calls that were deemed to be of a low priority, such as an animal rescue.

The creation of Fire Rescue Victoria has seen the joining of MFB career firefighters with Country Fire Authority (CFA) career firefighters. There has been significant discussion about response codes to calls between the two merged groups. CFA firefighters have previously operated under a system where a code 3 (normal road conditions) response was quite common to calls considered to pose a low immediate threat to life and/or property, such fires not spreading, powerlines sparking and minor car accidents.

The phrase quoted from Metropolitan Fire Brigades Act 1958 – section 32B now exists in the Fire Rescue Victoria Act 1958. Does that section of the Act justify a code 1 response for all alarms of fire (defined as “any call for assistance at a fire, accident, explosion or other emergency”)?

Of course, one must consider the Road Safety Rules 2017 – regulation 306, stating that the exemption to the Rules for the driver of an emergency vehicle only applies if “it is reasonable that the provision should not apply”.

What’s “reasonable”, and how should one interpret the quoted portions of the Fire Rescue Victoria Act 1958 in light of the Road Safety Rules 2017, and vice versa?

To set it out in full the Fire Rescue Victoria Act 1958 (Vic) s 32B(2) says:

On an alarm of fire being received by a unit, those members of the unit specified by Fire Rescue Victoria must, with the appliances and equipment specified by Fire Rescue Victoria, proceed with all practical speed to the scene of the alarm of fire.

And, as my correspondent has noted, an alarm of fire is ‘any call for assistance at a fire, accident, explosion or other emergency’ (s 32A). Section 32B is similar to the Fire and Rescue NSW Act 1989 (NSW) s 11 which says:

When there is an alarm of fire, a fire brigade must, despite anything to the contrary in any Act, proceed with all speed to the fire and try by all possible means to extinguish it and save any lives and property that are in danger.

There are differences: The NSW Act says that the obligation exists ‘despite anything to the contrary in any Act’ and that the NSW Brigades must ‘proceed with all speed’, not just all ‘practicable speed’, but despite their differences I suggest they are sufficiently similar that lessons from one can be applied to the other. I have discussed the NSW section 11 in an earlier post: FRNSW and what does it mean to ‘proceed with all speed’? (October 6, 2015). In that earlier post (referred to above) I referred to the decision in Bennet and Wood v Orange City Council (1967) 67 SR(NSW) 426. I said:

The court held that the section [ie s 28 of the Fire Brigades Act 1909 (NSW) equivalent to the modern s 11 and s 32B of the Victorian Act] gave rise to no private right of action, that is it was not intended that anyone could sue for failing to comply with the section – the headnote (a summary but not a part of the court’s reasons) says that the effect of the case was to hold that section 28 was ‘merely descriptive of the obligations of the Board…’ (p 426).     In essence s 28 (and now s 11) are there to remind the Commissioner what the fire brigades are supposed to do and what his job is, but it doesn’t give rise to an actual legally enforceable obligation.

My conclusion was:

Section 11 of the Fire Brigades Act 1989 (NSW) [as it then was] is descriptive and does not impose any obligation that can be enforced by a person who is aggrieved that the brigades did not respond quickly enough.  The reference to ‘all speed’ has to be read as ‘all reasonable speed’ and that has to take into account all the circumstances including that the area where the fire occurred is protected by a retained rather than permanent fire crew.

The Victorian Act is even clearer given that it says all ‘practicable’ speed and does not purport to apply ‘despite anything to the contrary in any Act’. What follows is that one has to consider many factors to decide what is ‘practicable’ including the risk to other road users and the benefit to be obtained. I suggest that a clause like s 11 (in NSW) or 32B (in Victoria) is telling the Chief Officer that responding to a fire alarm is the brigades first priority, so don’t finish lunch or do other tasks that were received first because the ‘fire can wait its turn’. It does not however give a ‘blank cheque’ to travel at whatever speed one get the appliance up to nor does it mean that the service cannot determine policies about what is practicable given the nature of the alarm.

To turn to the questions asked:

Does that section [ie s 32B] of the Act justify a code 1 response for all alarms of fire (defined as “any call for assistance at a fire, accident, explosion or other emergency”)?

Yes, my view is that it does justify a code 1 response, but it does not require it. It is up to Fire Rescue Victoria to determine its policy on responding to fires and to consider what is ‘practicable’ in the myriad of circumstances that the now expanded service will face.

What’s “reasonable”, and how should one interpret the quoted portions of the Fire Rescue Victoria Act 1958 in light of the Road Safety Rules 2017, and vice versa? 

I note that the Road Rules 2017 (Vic) still define an ‘emergency vehicle’ by reference to the MFB and CFA. I’m sure, without checking, that the ‘savings and transitional’ provisions that brought about the changes to Victoria’s firefighting arrangements will provide that any reference to the MFB is to be read as a reference to Fire Rescue Victoria and I will assume therefore that Fire Rescue Victoria appliances are an emergency vehicle for the purposes of the Road Rules.

For a discussion on determining what is reasonable see Road traffic exemption – Who determines if it is reasonable that the provision should not apply? (May 22, 2016).

Reasonable is one of the great words of English/Australian law that leaves the response to be determined ‘in all the circumstances’ and with the consequence that you can only know whether your conduct was ‘reasonable’ after the event. Certainly, it would not, in my view, be ‘practicable’ to respond without regard to the Road Rules (and that was my conclusion on the NSW section too, even though it says it applies ‘despite anything to the contrary in any Act’). It is practicable for Fire Rescue Victoria to drive contrary to the normal road rules in circumstances permitted by r 306 as it applies in Victoria, in other circumstances their practical speed must be limited by the need to comply with road rules including stopping at traffic lights and complying with the speed limit.

When developing their response policy, Fire Rescue Victoria like the former MFB and CFA will need to consider their circumstances. Perhaps the fact that the MFB operated only within Melbourne meant that priority 1 responses were more ‘routine’ than in country Victoria. Now that Fire Rescue Victoria operates in both realms one might think that simply adopting the ‘norms’ of either organisation will not be fit for purpose.

The new organisation can, and I would be bold enough to say should, reflect on its all of Victoria mandate and it may determine that a priority 1 response is not ‘reasonable’ in all cases and that the benefit of any faster response time has to be balanced against the risk to firefighters and other road users, and sometimes it’s not ‘reasonable’ to expose those firefighters and other road users to a great risk for a marginal benefit. If it is not ‘reasonable’ (as the term is used in r 306 of the Road Rules), then it’s not ‘practicable’ to proceed other than in accordance with the Rod Rules.

Conclusion

It would be my view that s 32B(2) of the Fire Rescue Victoria Act 1958 (Vic) would justify, but would not require, a code 1 response to every ‘alarm of fire’ even where the event was perceived to be of low risk and where it can be shown that the policy response is ‘reasonable’ taking into account the various benefits and costs (or risks) associated with response driving.

But the obligation remains in both metropolitan and country Victoria. On receipt of an alarm of fire, responding too that alarm takes priority over other tasks.