I previously reported on proposed changes to the NSW Road Rules.  The changes were announced but the text of the new rules had not been provided (see Changes to the Road Rules 2014 (NSW) announced, but not yet made (September 18, 2022)).  The government has now published the Road Transport Legislation Amendment Regulation 2022 (NSW).  At the time of writing the changes do not yet appear on the consolidated version of the regulation (https://legislation.nsw.gov.au/view/html/inforce/current/sl-2014-0758) but we can assume they will appear shortly.

The Road Rules 2014 (NSW) r 317(1) says:

(1)        A traffic control device may, by the use of words, figures, symbols or anything else, indicate any of the following—

(a)        the times, days or circumstances when it applies or does not apply,

(b)       the lengths of road or areas where it applies or does not apply,

(c)        the persons to whom it applies or does not apply,

(d)       the vehicles to which it applies or does not apply,

(e)        other information.

The Road Transport Legislation Amendment Regulation 2022 adds a new rule 317(1-1) that says:

(1–1)   A reference, on or with a traffic control device, to emergency vehicles is taken to be a reference to the following vehicles—

(a)        an ambulance being driven by a member of the Ambulance Service, or the ambulance service of another State or a Territory, in the course of the member’s duties,

(b)       a fire fighting vehicle being driven by a member of any of the following services in the course of the member’s duties—

(i)         a fire brigade, within the meaning of the Fire and Rescue NSW Act 1989

(ii)        the NSW Rural Fire Service or a rural fire brigade, within the meaning of the Rural Fires Act 1997

(iii)       a rescue service,

(c)        a State Emergency Service vehicle being driven by a member of the State Emergency Service in the course of the member’s duties,

(d)       a vehicle used by an accredited rescue unit, within the meaning of the State Emergency and Rescue Management Act 1989, being driven by a member of the unit,

(e)        an Airservices Australia vehicle, within the meaning of the Road Transport (Vehicle Registration) Regulation 2017,

(f)        a police vehicle,

(g)        a vehicle used by Transport for NSW being driven by a Transport Commander or Traffic Emergency Patroller, appointed or employed by Transport for NSW, in the course of the Commander’s or Patroller’s duties.

When the rule changes were announced (OAD rule change gives emergency services the all clear (18 August 2022)) it was said that the changes would ‘allow all emergency service vehicles, including those driven by volunteers, to legally and safely use U-turn bays.’  The Minister for Regional Transport and Roads Sam Farraway was quoted as saying:

“This important amendment makes it clear that all emergency service workers, whether it be Police, paramedics, Fire and Rescue NSW, RFS or SES, are legally allowed to use U-turn bays, which puts other drivers on notice to give way,” Mr Farraway said.

The press release also said:

RFS Commissioner Rob Rogers said the new road rule will cut down the time it takes for volunteers to respond to emergencies along the State’s motorways.

“The RFS has been championing this amendment for some time and I’m pleased we can now give our firefighters the confidence they need to respond to emergencies while following the road rules,” Commissioner Rogers said.

SES Commissioner Carlene York said the change will assist volunteers in responding to life-threatening situations.

“The SES is pleased to see this change coming into effect to ensure our teams are able to respond safely to emergencies,” Commissioner York said.

RFS Association President Scott Campbell said the amendment is a big boost for volunteers.

“This rule change is what our volunteers needed to ensure that they are legally permitted to use U-turn bays when responding to fires and car crashes, cutting down on response times and potentially saving lives,” Mr Campbell said.

With respect to those quoted, the law change will achieve very little and will not make the difference suggested.

The law before the changes

First let us look at the law without the amendments.  I will focus on the NSW Rural Fire Service and this discussion must, inevitably, lead to a discussion of the facts in the case of R v Wells [2017] NSWCCA 242 (see Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017) and whether these changes would make a difference if those circumstances arose again.

The effect of r 317(1) is that the roads authority can put up a sign and the sign has effect according to its terms.  If it says ‘no parking’ it means no parking, if it says ‘no U-turn’ then you cannot perform a U-turn.  If it says ‘no U-turn – Police, RTA, NRMA and emergency vehicles excepted’ then the driver of a police, RTA, NRMA or emergency vehicle can make a U-turn, other drivers cannot.

Under the Road Rules (and without rule 317(1-1)) an emergency vehicle is defined as:

… any vehicle driven by a person who is—

(a)        an emergency worker, and

(b)       driving the vehicle in the course of his or her duties as an emergency worker.

The term ‘emergency worker’ includes

(a) …

(b) a member of a fire or rescue service operated by a NSW Government agency, a member of the State Emergency Service or a member of a fire brigade (however referred to) or rescue service of the Commonwealth or another State or territory, providing transport in the course of an emergency, or

(c) …

A member of the Rural Fire Service, ‘providing transport in the course of an emergency’ is an emergency worker so the vehicle they are driving is an emergency vehicle.  The critical point is that they have to be ‘providing transport in the course of an emergency’.  If it’s an emergency they are driving an emergency vehicle and could make a U-turn if the sign said ‘emergency vehicles excepted’. If they were not ‘providing transport in the course of an emergency’ then they were not driving an emergency vehicle and they could not make the U-turn.

Even if a sign said ‘no U-turn’ the driver of an emergency vehicle could make a U-turn if they had their red/blue beacons activated or their siren on, they were taking reasonable care and it was reasonable in the circumstances to make that turn (Road Rules 2014 (NSW) r 306).

First conclusion

Even without the new rule 317(1-1) the driver of a rural fire appliance, or an SES vehicle, could use the U-turn bays if they were responding to an emergency such as ‘fires and car crashes’.

What do the changes do

The changes give another definition of ‘emergency vehicle’ -a definition that only applies when reading a road sign. Now, for that limited purpose, an emergency vehicle is, amongst other things,

… a fire fighting vehicle being driven by a member of … the NSW Rural Fire Service or a rural fire brigade, within the meaning of the Rural Fires Act 1997…

Now if a sign says ‘‘no U-turn – Police, RTA, NRMA and emergency vehicles excepted’ the driver of an RFS appliance may make a U-turn, whether there is an emergency or not.

They must still make the U-turn safely. Rule 38 still applies and it says ‘A driver making a U-turn must give way to all vehicles and pedestrians’ (maximum penalty, 20 penalty units).  If the driver of an appliance is making a U-turn he or she must give way to other vehicles.

If it is an emergency, they have their beacons and/or siren activated then other vehicles must give way to them (r 79; see also r 78 ‘Keeping clear of police and emergency vehicles’).  The driver of the emergency vehicle may proceed even when those other vehicles have ‘right-of-way’ (that is the driver of an emergency vehicle is exempt from the obligation to ‘give way’ to all other road users) provided they take reasonable care as they do so. 

The new rule does not put ‘other drivers on notice to give way’.  The driver of another vehicle does not have to give way to an emergency vehicle making a u-turn unless that vehicle has it’s red/blue beacons on or its siren activated, or both.  The new rules don’t change that.  With or without r 317(1-1) other drivers have to give way to an emergency vehicle with its lights/siren on, they do not have to give way to one that does not have the warning devices on.  Rule 317(1-1) makes no difference in that regard.

Second conclusion

The effect of the change is to allow the driver of an emergency vehicle as defined in rule 317(1-1) to make a U-turn whether there is an emergency or not.  The driver is still required to give way to all other vehicles. They are exempt from the obligation to give way, and other drivers are required to give way, only if they are responding to an emergency, have the warning lights or siren activated, take reasonable care when making the U-turn and it is reasonable in all the circumstances for that exemption to apply.

R v Wells

Whilst not specifically stated, I’m sure that these changes were brought in as a reaction to the decision in R v Wells [2016] NSWDC 169 (trial decision); R v Wells (No 2) [2016] NSWDC 313 (sentencing decision) and Wells v R [2017] NSWCCA 242 (Court of Criminal Appeal decision).

At the time of the accident involving Mr Wells, the relevant law was the Road Rules 2008 (NSW) rr 38; 78; 79; 306.  The 2008 rules have been repealed and replaced by the Road Rules 2014 (NSW).  The current, relevant section numbers are the same – ie rr 38; 78; 79; 306.

Mr Wells made a U-turn at a turning bay.  According to the trial judge Berman DCJ ([2016] NSWDC 169, [8]) ‘There was a sign at the U-Turn bay which said “no U-turn” but a supplementary sign positioned underneath said “Police, RTA, NRMA and emergency vehicles excepted”’.  His Honour continued (at [12]):

… the RFS tanker was heavy and slow to accelerate. It had remained in second gear as it went through the U-Turn bay at walking pace. As the accused told police in his interview with them conducted early the following morning, it was easier for him to keep the momentum going rather than stop and go back into first gear. As the tanker moved into lane 3 of the northbound carriageway the Corolla also moved back into lane 3. The accused saw this manoeuvre in his rear view mirrors and so steered the tanker left, intending to get out of the way of the Corolla. He had partly entered lane 2 at the time the Corolla collided with the rear left hand side of the fire tanker. The tanker was moving slowly at the time of the collision, its speed being in the order of 10-15kph.

Mr Wells was charged with two offences – ‘negligent driving occasioning the death of Mrs Mihailidis and an offence of making a U turn without giving way to a vehicle’ ([2]).  With respect to the U-turn offence, the trial judge said (at [61]-[65]):

That brings me to the question as to whether the accused has breached Road Rule 38. Has the prosecution proved beyond reasonable doubt that the accused, as a driver making a U-turn, did not give way to Mr Mihailidis’ approaching vehicle?

It is here that Mr Higgins relied on the exemption in Rule 306 to which I have earlier made reference. As noted above, if necessary I would have found that the accused was not driving an emergency vehicle and so the exemption would not apply to him. But in any case it is to be noted that the exemption only applies if, among other circumstances, “the driver is taking reasonable care”.

As I have concluded above, the accused’s manner of driving was negligent. It follows that he was not taking reasonable care. In the course of submissions Mr Higgins conceded that he could not contemplate a situation where a driver found to be driving negligently could be found to have been taking reasonable care.

For that reason I find that the exemption in Rule 306 does not apply and that Mr Wells did not give way to Mr Mihailidis’ approaching vehicle when he, Mr Wells, was making a U-turn.

I thus find him guilty of breaching Road Rule 38.

The question of whether the appliance was, or was not an emergency vehicle and therefore permitted to use the U-turn bay was not the issue.  The issue was whether he had to give way to the other driver.  He was only exempt from the obligation to give way if he was taking reasonable care. He was not taking reasonable care so the exemption under r 306 did not apply.  The new rule 317(1-1) does not change that law and would not affect the outcome if the same situation arose today.

The new r 317(1-1) might be relevant if the driver was charged with making a U-turn contrary to a no U-turn sign (Road Rules 2014 (NSW) r 39).  If that had been the charge Mr Wells had faced then the question of whether it was or was not an emergency vehicle would have been critical.   But that was not what Mr Wells was charged with – if it was not an emergency vehicle (as he was not responding to an emergency) he had to give way to Mr Mihailidis; if it was an emergency vehicle (as it now would be) he still has to give way unless he is taking ‘reasonable care’ – and he was not.  Even with the new rule, a driver who uses a U-turn bay but fails to take reasonable care and collides with another vehicle will still be guilty of an offence contrary to r 38.

The other offence that Mr Wells faced was negligent driving causing death.  This is an offence that was contrary to the Road Transport (Safety and Traffic Management) Act 1999 (NSW) (repealed), s 42 (but see now Road Transport Act 2013 (NSW) s 117).  The exemption on rule 306 has only ever extended to the Road Rules set out in the Road Rules 2008 and now the Road Rules 2014.  Rule 306 has never provided an exemption from the obligation to drive with due care ie it is not permission to drive ‘negligently’.  Mr Wells did not, and any driver of an emergency vehicle today does not, have an exemption from rule 117.

Mr Wells’ negligence was not making a U-turn contrary to a ‘no U-turn sign’. It was ‘… the act of commencing and continuing the U-turn of the tanker, in all of the surrounding circumstances…’ ([2017] NSWCCA 242, [74]).  The trial judge said (at [46]-[48]):

The accused was negligent in that he failed to take what is the obvious decision when the driver of a heavy vehicle intends to enter the carriageway of a high speed expressway while a vehicle is approaching – wait the 11 seconds or so necessary to allow that vehicle to go past before entering the carriageway.

By failing to do that, by entering the carriageway while the Corolla was approaching, the accused’s manner of driving was such a serious departure from the standard of care that a reasonable driver would have exercised that it merits criminal punishment. A reasonable and prudent driver would not have entered lane 3 of the northbound carriageway of the F3, where the speed limit is 110 kph, at night, in a slow moving vehicle, while he or she could see a car approaching in lane 2. By doing what he did he created a risk which was real, obvious and serious. The accused did not exercise that degree of care which the ordinary prudent driver would exercise in the circumstances I have outlined above.

Mr Wells didn’t want to lose momentum and have to change down to first gear. Mr Wells didn’t want to stop. It was negligent of the accused to fail to do so.

Back in 2016 the NSW RFS set out an operational brief that said, amongst other things

A recent court matter, relating to a fatal accident on a motorway north of Sydney and involving a NSW RFS member driving a tanker has lead to uncertainty about emergency vehicles legally using these facilities.

At the time I wrote ‘The court in this case said nothing to the effect that U-turn bays should not be used… If there is any lesson it is “If you are going to use a u-turn bay, make sure it is an emergency and make sure other drivers have in fact given way”’ (see RFS response to volunteer’s conviction for fatal traffic accident (October 13, 2016)). 

Third conclusion

The change to the Road Rules with the introduction of rule 317(1-1) would make no difference to that outcome should an accident, similar to that involving Mr Wells, arise again.  Rule 317(1-1) does not reduce a driver’s obligation to take reasonable care in all the circumstances.   Rule 317(1-1) would only be relevant if the alleged negligence was making a U-turn contrary to a no U-turn sign. If Rule 317(1-1) had been in place in 2012 it would have made no difference to the outcome Mr Wells’ case.

Other issues

The new rule 317(1-1) defines an emergency vehicle as

a fire fighting vehicle being driven by a member of any of the following services in the course of the member’s duties— … (iii) a rescue service,

As well as ‘(d)  a vehicle used by an accredited rescue unit, within the meaning of the State Emergency and Rescue Management Act 1989, being driven by a member of the unit’. I don’t know what is meant by a ‘rescue service’ if it is not ‘an accredited rescue unit, within the meaning of the State Emergency and Rescue Management Act 1989’. It is unclear who r 317(1-1)(b)(iii) will apply to.

Given that police and Transport for NSW vehicles are now included in the definition of emergency vehicle, future signs presumably won’t need to say ‘no U-turn: Police, RTA, NRMA and emergency vehicles excepted.’  They will only need to say ‘no U-turn: NRMA and emergency vehicles excepted.’

It is bizarre to have multiple definitions of the same term ‘emergency vehicle’ in the one instrument.  It is still the case that for every rule, other than r 317(1), a reference to an emergency vehicle still requires that the vehicle is being driven or used as part of an emergency response.  The varying definitions is likely to lead to confusion. 

It would have been better, rather than insert r 317(1-1), to change the definition of emergency vehicle to the definition now in the rule.  That would mean an RFS vehicle, for example, is an emergency vehicle for all purposes and at all times.  That would not give them carte-blanche exemption from the Road Rules.  The driver would still have to comply with the road rules unless they were taking reasonable care, using the warning devices and it was reasonable in all the circumstances, which would include whether there was an emergency or not (r 306). There would not, however be this confusing situation where the status of the vehicle changes from ‘not an emergency vehicle’ to ‘emergency vehicle’ depending on whether they are responding to an undefined emergency.

Conclusion

The new road rules, and the quotes from the relevant Ministers and Commissioners suggest they still don’t understand why Mr Wells was convicted. Mr Wells was convicted because he failed to take reasonable care.  Because of that failure he could not enjoy the exemption provided by r 306 and he was guilty of negligently driving causing death.  Mr Wells was not charged with making a U-turn contrary to a no U-turn sign and it was not his decision to make a U-turn that was negligent, it was the manner in which he performed that turn.

The new rules will not change that. The driver of an emergency vehicle must still take care when making a U-turn and the must still give way to other drivers. They are only exempt from the obligation to give way if it is an emergency, they have their warning devices activated, they are taking reasonable care and it is reasonable in all the circumstances for that rule not be applied.    

The effect of the new r 317(1-1) is that the driver of an RFS appliance (or other emergency vehicle) may now make a U-turn if there is a sign that says ‘no U-turn: emergency vehicles excepted’ whether there is or is not an emergency. 

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.