Today’s correspondent writes from Victoria and I infer that the question relates to an ambulance service, but which one is not identified.  My correspondent says:

There has been some discussion recently on a policy in Victoria by a service that has been directing crews to upgrade to lights and sirens driving based on KPIs and meeting time frames instead of changes in the patient’s acuity that would warrant such upgrades.

Crews are allegedly being told if they refuse to upgrade based on time frame only (non-change in clinical acuity that would normally be designated a code 2, 3 or 4 but now upgraded to code 1 base on time frame) that they are refusing a lawful direction and are facing disciplinary action.

One of my colleagues raised the Road Safety Road Rules 2017 (Vic) r 306 Exemption for drivers of emergency vehicles [which says]:

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 provision 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.

I know each case is different and you can’t provide specific advice, but I wanted to get your insights into the direction to upgrade to light and sirens driving based on KPI or resourcing (not changes in clinical acuity) and the lawfulness of such a direction in relation to Section 306(a)(ii) and the term ‘reasonable’.

I would also like to gain your thoughts into if a Coroner’s report (Healesville 2006) and recommendations change how reasonable may be interpreted in this this part of legislation within the context of the Coroner’s Report.

I guess the question becomes in the absence of a test in court, is it the employer or employee that determines what is reasonable in driving lights and sirens?

I infer that the reference to a Healesville Coroner’s report is a reference to the inquest into the deaths of two paramedics in 2004.  I cannot find a copy of the Coroner’s report but it is reported in the article ‘Speed caused fatal ambulance crash, coroner finds’ ABC News (Online) 16 February 2006.  Without access to the actual report I cannot comment on the Coroner’s findings or what it might mean to the issues raised.

Road rule 306

My correspondent has correctly identified that the exemption from the Road Rules is found in r 306.  Further, rules 78 and 79 impose obligations on other road users to give way to, and make way for, emergency vehicles with their red/blue warning lights and/or siren activated.

Critical to r 306 is the definition of ‘emergency vehicle’.  In Victoria, relevantly, an emergency vehicle includes (r 4 and Dictionary, definition of ‘emergency vehicle’):

(a)        a vehicle operated by or on behalf of and under the control of—

(i)        an ambulance service created under section 23 of the Ambulance Services Act 1986 or listed in Schedule 1 to that Act

Compare this to the definition adopted in New South Wales. In that state the relevant definition says that an emergency vehicle is a vehicle driven by an emergency worker who is ‘driving the vehicle in the course of his or her duties as an emergency worker’.  An emergency worker (in NSW) includes ‘a member of the Ambulance Service or the ambulance service of another State or Territory, in the course of providing transport in an emergency …’  In NSW whether a vehicle is or is not an emergency vehicle depends both on the status of the driver and the presence of an ‘emergency’. 

In Victoria it is the status of the vehicle, that it is ‘operated by or one behalf of’ an ambulance service, not the status of the driver that is crucial (and see What is a vehicle that is ‘operated by or on behalf of and under the control’ of Ambulance Victoria? (July 21, 2017)). And in Victoria the definition does not say that it has to be operated during the course of or when responding to an ‘emergency’.

Emergency

What is an ‘emergency’ is not relevantly defined. The issue did arise in the matter Wells v R [2017] NSWCCA 242, a case involving a multi-vehicle fatal accident caused when the driver of a NSW RFS activated his red/blue lights and entered a multi-lane motorway. At the time the driver was returning to a scene of an earlier call-out to collect the crew – details of the facts can be found in the posts Further prosecution over fatal RFS accident (August 17, 2016) and Further prosecution over fatal RFS accident (Part 2) (August 21, 2016). I report on the decision of the Court of Criminal Appeal in the post Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017).

In the Court of Criminal Appeal on the question of what is an ‘emergency’, Button J said:

… I do not accept that “an emergency” can be an event that does not have at least some aspect of urgency to it. I say that not only as a matter of ordinary English usage. I say that also because, with respect, I accept the submission of the Crown that the interpretation for which the appellant contends would lead to absurdities; for example, a tanker being driven to an event that was patently not urgent – such as a routine meeting of volunteer firefighters – could nevertheless be judged as travelling to an emergency, with consequent modification to the operation of the Road Rules.

That is of course a decision of a NSW court, it is not binding in Victoria where the definition of emergency vehicle is different. In that case it was held that at the time of the accident the RFS appliance was not an ‘emergency vehicle’ and therefore could not enjoy the benefit of rule 306.  There is no direct application to Victoria but I would think that a Victorian could would be influenced by the reasoning in questioning whether it was reasonable, in Victoria, to rely on r 306 except in circumstances where there was ‘some aspect of urgency’. 

Murray v McMurchy [1949] 2 DLR 442 was a Canadian case, dealing with a surgeon who was performing a caesarean section. During the procedure he observed that the patient had a tumour and further pregnancies would be life threating.  He therefore permanently sterilised her.  He informed her of what he had found, and done, when she came out from the anaesthetic. She was not pleased and sued for assault.  The doctor argued that the procedure was warranted as an emergency.  The court said (at [5]): “There are times under circumstances of emergency when both doctors and dentists must exercise their professional skill and ability without the consent which is required in the ordinary case” but for that doctrine to apply the action taken must be (emphasis added) ‘necessary, as opposed to being convenient, for the protection of the life …’ (see [3]).  Whilst not directly applicable to driving, the trial judge in the Well’s case found that when making the u-turn the driver was acting for ‘convenience’ ie to shorten the trip to return to collect the crew, and not out of any necessity to take action to save a life or otherwise respond to an emergency that was occurring on the other side of the road.

Similar reasoning would be applicable in the scenario under discussion. If the direction to use lights and sirens was to improve response time eg to get a patient to the hospital quicker in order to clear for the next case in order to improve KPI’s, that may be a matter of ‘convenience’ rather than necessary. On the other hand one could argue if there are banked up cases, getting ambulance to clear (assuming they are not caught up with hospital ramping) in order to respond to the waiting cases may have the requisite degree of urgency.  One can see that the issue may well turn on what is meant by ‘driving based on KPI or resourcing’.

Who determines what is reasonable?

I have addressed this in an earlier post – see Road traffic exemption – Who determines if it is reasonable that the provision should not apply? (May 22, 2016).  In that post I list the people who have to make a determination. I suggested that the relevant order was:

  1. The agency;
  2. The driver;
  3. The police;
  4. A magistrate; and
  5. In rare cases, an Appeal court (the District or County Court, the Supreme Court, a Court of Criminal Appeal (depending on the jurisdiction) and finally the High Court of Australia.

Where I say the agency my argument is that the agency should have an emergency or response driving policy that will indicate when they expect a driver to ‘respond’ to the call. If the driver is dispatched to the call and is responding, then:

If the driver confirms that they were ‘responding’ to the job the service should consider whether that accorded with their policy and if it did, write to the police to have the infringement notice withdrawn.

It does not mean that an agency can determine anything, in particular matters of convenience to the service rather than actions ‘necessary… for the protection of the life’ constitute an emergency.  The service’s policy is not immune from scrutiny if someone wants to argue that it was not reasonable that r 306 should apply even if the service says that it is. 

Having been given a policy – this is when we accept it’s reasonable to use lights/sirens – the next judge is the driver. The driver’s principal job is to not crash the vehicle. Nothing ruins response time more than a collision and a collision exposes everyone to a serious risk of harm or death. No emergency justifies killing innocent road users, the patient or colleagues.  It is up to the driver to determine what is reasonable and what he or she is prepared to accept.  The driver is the ‘pilot in command’ and ultimately no-one can tell the driver to go, to speed up or to take any other risk. It may be that if a member of an emergency service refuses to ever use the lights and sirens or to take any action to speed up their response that they are not suited to the job and should not be the driver of an emergency vehicle. It may be that there are internal matters including action for not being able to perform an essential aspect of the job, but from a road rules perspective, it is always up to the driver – and always the driver’s responsibility – to determine what is appropriate in the particular circumstances.

Occupational Health and Safety

Fundamentally this is a work health and safety issue. Under both the Occupational Health and Safety Act 2004 (Vic) as well as the model work health and safety legislation an employer or PCBU (respectively) ahs to take steps to protect others – patients and other road users – as well as employees or workers from risks from their work. Driving under emergency conditions is very risky. To satisfy any test that it is reasonable it has to balance that risk against the benefit to be achieved. We accept that when ambulances respond to emergency cases and fire brigades turn out to fires.  There speedy response may save lives.  Once paramedics have arrived and started life support, there may be less need for an ‘urgent’ response to hospital, and fire brigades are not responding to an emergency when returning to collect a crew. 

If my correspondent thinks the directives referred to are not justified by the patient’s condition, then it is a matter of the policy exposing them and others to unacceptable risk. The appropriate response would be to raise the matter through the occupational health and safety consultation arrangements.

Conclusion

The ultimate question was ‘in the absence of a test in court, is it the employer or employee that determines what is reasonable in driving lights and sirens?’ The answer has to be ‘it’s both’.

In the first instance an employer has to have a reasoned, risk assessed policy as to when it’s reasonable. If a driver operates outside that policy, in circumstances where the employer does not think the use of lights and sirens is reasonable, then the driver is going to have a difficult time convincing a Magistrate that r 306 should apply (difficult but not impossible, depending on the facts).

Regardless of the policy the driver has to decide, in each particular case, taking into account not the policy (written in the abstract) but the very circumstances – the traffic, the weather, the patient’s condition, the distance to be travelled etc – whether it’s ‘reasonable’ to take the extra risks. Accordingly, if there is a policy that lights and sirens should be used in particular circumstances, a refusal in some cases eg because of the road conditions or prevailing traffic, could not be questioned, but a blanket refusal may be a failure to comply with a ‘reasonable’ direction. It really then turns to exactly what the policy says, why it says it and how the risks to other road users has been balanced against the needs of the patient.

It would be my view that if the policy was really being implemented ‘for the convenience’ of the service – to meet KPI’s – then a court would not accept there was any need for the exemption and r 306 would not apply, nor would a tribunal accept that it was a ‘reasonable’ direction. No doubt a service would not accept that was the motivation and if it was say implemented during peak and unusual demand because even though the patient on-board was not urgent, other urgent cases were waiting, a court may accept that had sufficient nexus to an emergency that it was reasonable both to apply r 306 and to expect staff to apply the policy.  As is always the case, the outcome in any particular case would depend on all the circumstances and the motivation of those giving the direction.

For another, related post, see Is it an emergency? Does it have to be for Victoria’s road rules? (June 12, 2017).