Today’s correspondent has two questions regarding the Fire Rescue Victoria Act 1958 (Vic). The:

… first question relates to section 32B of the FRV Act 1958. Most specifically at (2) which 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.

I appreciate that you have previously covered the intent of this section with relation to ‘speed’ of response however my question is of a different nature. I occasionally hear units receiving notification of an ‘alarm of fire’ while they are not in their station. Sometimes, these units will detour from a direct route to the scene of the incident to retrieve keys held for the premises being attended. As these keys are held at the invitation of the owners/occupiers, and are certainly not available for all addresses attended, I would not expect them to be classified as ‘appliances and equipment specified by Fire Rescue Victoria’. Could a delay in response to obtain keys, held at a fire station, be considered a breach of the Act? It would be fair to say that each primary appliance of the service carries appropriate equipment for gaining entry to a property in the setting of an emergency without the need for keys to be utilised. This delay could potentially lead to a delay in action being taken to save life and/or property, what I take to be the primary intent of this section of the Act.

My second question is in relation to emergency driving. Who is ultimately responsible for the utilisation of emergency warning systems (displaying a blue or red flashing light / sounding an alarm)? Recent conversations that I am aware of suggest that some people within the organisation form the view that it is the officer in charge (OIC) of the appliance who is responsible for the activation of the emergency warning systems and not the driver. It would be my understanding that it is the driver who elects to enact Rule 306 of the Road Safety Road Rules 2017 (to subsequently ignore another provision of the rules) and would be the individual facing any charges which may arise from a driving incident which occurred whilst enacting this provision. I believe that there is some confusion that has developed between who determines the response code of an emergency vehicle (the OIC under FRV policy) and who is responsible for controlling the emergency warning systems when driving under emergency conditions. Your legal insight into this would be most appreciated.

Question One

Section 32B is not a section that comes with a penalty or legal consequences. It is a direction to the Commissioner as to what the objective of the service is. There is no penalty attached nor is it a clause that gives a right to sue – see Bennet and Wood v Orange City Council (1967) 67 SR(NSW) 426. In that case the court held that section 28 of the Fire Brigades Act 1909 (NSW) (equivalent to 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).

Further the cases have held that the Fire Brigades do not owe a duty of care. As the UK Court of Appeal said in Capital and Counties v Hampshire Council [1997] QB 2004:

In our judgment the fire brigade are not under a common law duty to answer the call for help and are not under a duty to take care to do so. If therefore they fail to turn up or fail to turn up in time because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable.

(See also UK case on liability of statutory authorities (June 7, 2019)).

If that is true in Australia (and I think it is see Liability for fire – a review of earlier posts (January 8, 2016)) then even if there is a delay going to get the keys there is no liability. But let us assume, for the sake of the argument there is a relevant duty then the issue is how long is the delay and what are the reasons for it. If they brigade take an extra 24 hours to get there, then one might say there is a breach. But not if the delay is a minute. And somewhere between the 1 minute and the 24 hours is the critical line, but where that is would depend on all the circumstances.

Further I would think the key can be part of the ‘equipment specified by Fire Rescue Victoria’. That list does not say it has to be equipment supplied by Fire and Rescue Victoria. So if the response protocols are to divert and get the keys that is taking the ‘equipment specified’.

Conclusion One

I do not think a delay in response to obtain keys, held at a fire station, would be considered a breach of the Act.

Question Two

If the question means ‘who is responsible for pressing the button that turns on the beacon and sirens?’ then it really doesn’t matter. It might make sense to leave it to the passenger to change the siren tones so the driver can concentrate on the driving. But I don’t think that is what is being asked. It’s not turning the siren on, or off, that is important but the driving.

The driver is responsible for the safety of the vehicle. As I said (in what I thought was quite a clever statement) at a Rural Fire Service Association conference, the driver’s primary, if not only job, is to not crash the appliance. The passenger, or crew leader or anyone else might turn on the siren, but it’s up to the driver to decide whether or not to proceed and what is a safe speed to proceed. And if the driver says ‘turn that off, it’s annoying or distracting me, or I cannot go anywhere’ then whoever has control of the switch should turn it off. And indeed, in the event of a collision it is the driver who will face any criminal consequences (but not civil liability).

Conclusion Two

If the comment it ‘is the officer in charge (OIC) of the appliance who is responsible for the activation of the emergency warning systems and not the driver’ refers to the idea that the driver should not have to think about that (and once the beacons are on the only real issues is changing the siren tone) then fair enough it’s someone else’s job.

But if we’re talking about whether those devices should be one at all then it has to be the driver’s call. The driver of course is subject to the procedures of the organisation that define in what circumstances the use of the warning devices is permitted, but it is always up to the driver to decide what is warranted and safe in the circumstances. But if the driver says ‘were stuck in traffic, turn those off’ or ‘I’m not going through this intersection as I don’t have a clear view’ then it has to be the driver’s call. The driver is responsible for the safe operation of the vehicle.