Today’s correspondent, from Victoria has a question about.
… exemptions for passengers of Emergency Vehicles when the driver is exempt under s305/s306 of the Road Safety Road Rules 2017 (Vic)?
Specifically, after watching an episode of Highway Patrol, during a pursuit, the front passenger in a police vehicle (in which the driver is operating under the exemptions from s305), removes their seatbelt before the vehicle is stationary to get ready to apprehend the driver of the vehicle in the pursuit. A passenger removing their seatbelt seems to relate to s265 (Wearing of seatbelts by passengers 16 years old, or older) which provides no exemption in this case and seems to not be covered by the exemption s267B (Exemption from wearing seatbelt—passenger in police vehicle etc) as the officer was in the front row of seats in a vehicle with 2 rows of seats.
Are there any other exemptions for passengers of Emergency Vehicles or are people just turning a blind eye to this?
That is a very interesting question because, as my correspondent notes, the exemptions in rr 305 and 306 apply to the driver. They say (emphasis added)
305 Exemption for drivers of police vehicle
(1) A provision of these Rules does not apply to the driver of a police vehicle…
306 Exemption for drivers of emergency vehicles
A provision of these Rules does not apply to the driver of an emergency vehicle…
Rule 265 says, relevantly
(1) A passenger who is 16 years old or older and is in or on a motor vehicle that is moving, or that is stationary but not parked, must—
(a) occupy a seating position that is fitted with an approved seatbelt; and
(b) wear the seatbelt;…
But not (r 265(2)) “if the passenger is exempt from wearing a seatbelt under rule 267, 267A, 267B or 267C.’
Rule 267 relates to person who have a certificate of exemption. Rule 267A relates to situations where the seat is not fitted with seat belts (eg vintage cars).
Rule 267C has several exemptions. Relevant to emergency vehicles is r 267C(2) which says
A person is exempt from wearing a seatbelt if the person is providing or receiving medical treatment of an urgent and necessary nature while in or on a vehicle.
Rule 267B does provide exemptions for those in police and emergency vehicles. The rule says (in full):
267B Exemption from wearing seatbelt—passenger in police vehicle etc.
(1) The passenger of a police vehicle, police custody officer vehicle, corrections vehicle, secure services vehicle, or sheriff’s vehicle is exempt from wearing a seatbelt if—
(a) in the case of a vehicle that has 2 or more rows of seats—
(i) the passenger is not in the front row of seats; or
(ii) the passenger is in the front row of seats because there is not a seating position available for the passenger in another row of seats; or
(b) the vehicle has a caged or other secured area designed for the carriage of passengers and the passenger occupies a seating position in that area.
(2) The passenger of an emergency vehicle or enforcement vehicle that has 2 or more rows of seats is exempt from wearing a seatbelt if—
(a) the person is not in the front row of seats; or
(b) there is not a seating position available for the person in another row of seats.
Essentially passengers in the back seats of police and emergency vehicles (if there are back seats) do not have to wear seat belts nor do front seat passengers if there are no back seats or the back seats are occupied. As my correspondent notes, that doesn’t apply to the situation described ‘as the officer was in the front row of seats in a vehicle with 2 rows of seats’.
In those circumstances, an officer who received an infringement notice may raise a ‘necessity’ defence.
An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained. (Stephen’s Digest of the Criminal Law (1st ed, 1887) discussed in the post The doctrine of necessity – Explained (January 31, 2017).
It is a crime with a maximum penalty of a fine of 10 penalty units not to wear a seat belt (r 265). Balance that against the need to remove the seat belt for example in order to more promptly secure an arrest or more importantly, to be able to defend oneself eg by drawing a weapon and seeking cover. If the decision to remove the seat belt was no more than ‘reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided’ then there would be a common law defence.
The long answer is passengers in the back seats of police and emergency vehicles (if there are back seats) do not have to wear seat belts nor do front seat passengers if there are no back seats or the back seats are occupied. The short answer is that a passenger in the front seat of an emergency vehicle must wear a seatbelt whilst the vehicle is not parked.
Having said that it would probably be useful if rr 305 and 306 referred to the driver ‘and any passengers’ as that would cover a myriad of circumstances provided that whatever breach there was, was reasonable in the circumstances and the driver was taking reasonable care – so if a driver knew the passengers were not wearing seatbelts, for whatever reason, he or she would need to consider that and adjust their driving accordingly.
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I have been discussing this topic regularly lately, particularly in regards to the practice of placing infants and children on a caregiver’s lap, while the adult sits on the stretcher. My understanding of the road rules in NSW were that, for passengers/patients in an ambulance, everyone must be wearing a seat belt, unless urgent life saving interventions are being performed/received.
I would be very grateful for your clarification of this rule and your thoughts on the abovementioned practice.
As a matter of law, I don’t think the child needs to be better restrained. Regulation 267B(2) ‘Exemption from wearing seatbelt—passenger in police vehicle etc’ says “The passenger of an emergency vehicle or enforcement vehicle that has 2 or more rows of seats is exempt from wearing a seatbelt if— (a) the person is not in the front row of seats…” The patient on the stretcher (or both patients in the case of caregiver and child) are not in the front row of seats of the ambulance and are therefore exempt from the need to wear a seat belt.
Further, I would argue that the stretcher is not a ‘seating position’ in the car. The vehicle design rules (Road Transport (Vehicle Registration) Regulation 2017 (NSW) Sch 2 and the Australian Design Rules) do not deal with ambulance stretchers. The stretcher is not part of the ambulance, it’s part of the ambulance’s load.
If that’s right any passenger on an ambulance stretcher is, for the purposes of the road rules, not seated in a ‘seating position’ (r 265). If that’s correct they are exempt from the need to wear a seatbelt by the operation of rule 267A (‘Exemption from wearing seatbelt—seating position not fitted with seatbelt’) and r 268(5) (‘How persons must travel in or on a motor vehicle’ – exemption for police, emergency or enforcement vehicle’).
But the stretchers have seat belts? Yes, they do, but that may not be because the vehicle standards require it but because any assessment under Work Health and Safety legislation would say that one has to have a seat belt because regardless of whether the stretcher is part of the ambulance, it’s in the ambulance and anyone on it is at risk if there is an accident and that risk is made worse if they are unsecured. If that’s the correct analysis, then the issue of whether the child should be secured or can be held in its caregiver’s arms is a risk assessment question. What is the risk of injury to the child compared to the risk if treatment/transport is delayed, if the child is not carried in its caregivers arms but cannot be otherwise secured to the stretcher (eg there are no other restraints available etc; see also Giving instructions to use plant contrary to manufacturer’s instructions (March 10, 2021)).
Either the stretcher is a seat (like any other) in which case r 267B(2) gives an exemption from the need to wear a seat belt; or is it not a seating position in which case rr 267A and/or 268(5) give an exemption from the need to wear a seat belt. I suggest that the obligation to restrain the patient comes from a common law duty of care backed by obligations imposed by the Work Health and Safety legislation. If that’s the case then the issue is the nature of the risk assessment when it was decided to carry the child ‘on a caregiver’s lap, while the adult sits on the stretcher’.
Thank you for explaining that. It’s not as I believed. It’s worth adding that (in NSW) the ambulances are provided with a paediatric restraint harness specifically designed for the current stretchers.
And to confirm for “306 Exemption for drivers of emergency vehicles” that an emergency vehicle is only an emergency vehicle when responding to an ’emergency’? (as per outcome of Ian Jeffrey Wells V Crown)?
It does depend on the jurisdiction. That is certainly true in NSW but not in say, Victoria due to differences in their definition of ’emergency vehicle’.