Today’s correspondent tells the story of:

A fully authorised and experienced emergency vehicle driver in NSW, responding to a life-threatening emergency, in a marked “emergency vehicle”, passes a fixed speed camera doing 130kph in an 80kph speed limit area.

Assume a modern, well maintained, regularly serviced light truck driving under lights and sirens at 1 pm. The weather on the day is recorded as being showers and rain throughout the day. Let’s assume at least damp roads on a Monday with regular traffic volumes.

Policy and procedure-wise, the emergency service does not have a stipulated maximum speed. It instead instructs the drivers to drive to the road conditions, their skills, experience and fatigue levels.

No complaints or accidents have happened regarding this response. But we do have the data from the speed camera.

The driver is relying upon being reasonably exempted from the road rules because they are actioning a life-threatening rescue response. The manager has concerns that driving 50kph above the area speed limit, and 20kph above the national speed limit, in that vehicle is a questionable risk and possibly unreasonable.

That has me asking, how do we interpret what a “reasonable person” might think on whether this speed is reasonable? Normally that would that be determined by a magistrate or a panel of jurors – correct? Here, we have two laypersons – the driver and their manager (and potentially anyone in the community who witnessed it).

As a manager, leader, and mentor to these drivers, how should I determine what a reasonable person may have concluded regarding that situation in order to give them valuable feedback for the future?

For related posts see:

The reasonable person

The legal ‘reasonable person’ is not the same as an ordinary person.  Prosper Law give this concise summary:

The reasonable person refers to a hypothetical person who demonstrates average judgment or skill. The reasonable person has various generalised attributes including risk aversion, sound judgment, and a sense of self-preservation, which prevents them from walking blindly into danger.

The reasonable person is pure legal fiction. It was crafted by judges to represent the concept of the Common Law and used as a tool to standardise the application of the law.

The reasonable person is not an average person or a typical person, and the average person is not necessarily guaranteed to always be reasonable.

Ultimately the only judge of whether one’s conduct meets the test of ‘the reasonable person’ is indeed a judge or jury. But lawyers, police, insurers, drivers and managers can all think about the ‘generalised attributes’ to come to a conclusion – which they do when deciding whether to defend or settle cases, issue infringement notices etc.

The reasonable response to risk

When deciding what a ‘reasonable person’ would do in response to a risk, the leading case (still) is Wyong Shire v Shirt [1980] HCA 12 where Mason J said (at [14]):

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

That was a civil case, and in this question we’re talking about criminal law, but the issues are still the same.  So the first things that both the driver and the manager have to consider are:

  • the magnitude of the risk; and
  • the degree of the probability of its occurrence;
  • along with the
    • expense;
    • difficulty; and
    • inconvenience

of taking alleviating action and

  • any other conflicting responsibilities which the defendant may have.

The issue is the risk of a vehicle collision.  The magnitude of the risk, particularly at 130km/h in a laden truck is very high.  Collide and someone is likely to die.

What is the probability of its occurrence?  One might think quite high, that’s very fast in an urban street and increasing the risk is the fact that roads are wet and the presence of other traffic.  Also adding the probability is the fact that the vehicle is not designed for that sort of driving.  In a comment on an earlier post I said ‘…you’re not driving a racing car…’. It was suggested that this demonstrated ‘a level of bias’ but I took the view that it is simply true.  A loaded emergency services appliance is not a racing car. Racing cars are designed to be driven very fast on tracks that are designed for that purpose with all the traffic made up of similar cars going in the same direction.  That is not true when driving a laden emergency services truck that I would suggest is being pushed to its limits.

What can be done to reduce the risk?  One way to reduce the risk is police motorcycle escorts riding ahead and closing off intersections but one can see immediately that the cost and inconvenience of that response is impracticable, so it is not ‘reasonable’ to try and implement those responses.

Light/sirens will go some way to reduce the risk as will the obligation on other drivers to make way for the emergency vehicle.  But equally they can increase risk as other drivers try to react and the driver of the emergency vehicle themselves may become too focussed on the task. The pressure of ‘goal seduction’ that is focussing on the goal of getting to and responding to the emergency can lead to bad decisions by the driver of the emergency vehicle (Christopher Bearman and Peter A Bremner, ‘A day in the life of a volunteer incident commander: Errors, pressures and mitigating strategies’ (2013) 44 Applied Ergonomics 488-495).

Another, simple way to reduce the risk, is to slow down. There is an inconvenience in that response as it delays response time but then one has to ask by how much.  Even you can do 130km/h the driver is not going to keep that up for the whole trip; so how much time is it really saving?

Finally, there is the issue of ‘conflicting responsibilities’.  There the assigned task of rescue is relevant. There is a conflicting responsibility to try to get on scene to affect the rescue as soon as possible.  But that will be defeated if the vehicle is involved in a collision and the desire to save someone cannot justify killing someone else.  There would be no legal duty to rescue the person in danger, but there is a legal duty not to kill another road user (see Capital and Counties v Hampshire Council [1997] QB 2004; Stuart v Kirkland-Veenstra [2009] HCA 15; Electro Optics and West v NSW [2012] ACTSC 184; Hamcor Pty Ltd v State of Qld [2014] QSC 224; Ibrahimi v Commonwealth of Australia [2018] NSWCA 321 and see also No duty to prevent a disaster and no duty to rescue (December 26, 2018) and UK case on liability of statutory authorities (June 7, 2019)).

Traffic law

To these factors we need to look at the relevant traffic law. We should all be familiar with the exemption from the Road Rules (Road Rules 2014 (NSW) r 306) 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 rule 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.

Rule 306 is not an exemption from all the rules that apply to drivers and driving. It is an exemption from the rules set out in the Road Rules 2014 (NSW).  There are however many rules of the road that are not in the Road Rules 2014. The Crimes Act 1900 (NSW) deals with offences such as manslaughter, dangerous driving occasioning death or grievous bodily harm and causing injury by ‘wanton or furious riding, or driving, or racing, or other misconduct, or by wilful neglect’.  The Road Transport Act 2013 (NSW) provides for the offence of driving ‘at a speed or in a manner dangerous to the public’.  There is no exemption from these offences so if the driving, objectively judged, meets the standard of criminal negligence (explained in the posts Leaving a property owner to face a bushfire won’t be criminal negligence (November 26, 2019) and Medical mistake and manslaughter (April 10, 2022)) or an unreasonable danger to the public then the use of lights and sirens provides no exception.

The Road Transport Act 2013 (NSW) s 117 says:

(2)        A person must not drive a motor vehicle on a road furiously, recklessly or at a speed or in a manner dangerous to the public.

(3)        In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following–

(a)        the nature, condition and use of the road on which the offence is alleged to have been committed,

(b)       the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road,

(c)        any obstructions or hazards on the road (including, for example, broken down or crashed vehicles, fallen loads and accident or emergency scenes).

In deciding whether driving a laden emergency services truck at 130km/h is dangerous a court would have regard to the road conditions (in the scenario at hand, a wet road) and the fact that the road authority have determined that a driver should not exceed 80kh/h on that road.  130km/h may not be objectively dangerous on a divided motorway with light traffic and a speed limit of 110km/h, but that is not the same as a road with oncoming traffic, perhaps a single lane and a speed limit of 80km/h.

The Crimes Act 1900 (NSW) s 52A(1) says

A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle–

(a) …

(b) at a speed dangerous to another person or persons, or

(c) …

There is a similar offence of causing grievous bodily harm (GBH) (s 52A(3)). 

In both cases the offences are made worse if there are ‘circumstances of aggravation’ (ss 52A(2) and (4)). The circumstances of aggravation include ‘driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road’ (s 52A(7)).  The maximum penalty for causing death in those circumstances is 14 years imprisonment; for causing GBH it is 7 years imprisonment.

In R v Jurisic [1988] NSWSC 597 the NSW Supreme Court set out guidelines to be followed when sentencing a person convicted of an offence under s 52A. They said ‘A non-custodial sentence for an offence against s52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgement’.  In sentencing a court would not doubt take into account the fact that the driver was the driver of an emergency vehicle and they were not ‘racing’ or abandoning their responsibility as a driver but the prospect of a custodial sentence (which can include an Intensive Correction Order to be served in the community (Crimes Sentencing Procedure Act 1997 (NSW) s 7) but that is still a custodial sentence (and see Suspended jail sentence for firefighter involved in a fatal accident (October 24, 2009) and RFS firefighter sentenced over fatal collision (December 5, 2016)).

Whilst these provisions do not have direct application, we can infer that the legislature thinks exceeding the speed limit by more than 45km/h is not only dangerous, it is extremely dangerous and the Supreme Court has said that if you do that, and someone dies or suffers GBH, you can expect to go to gaol.  A driver of an emergency vehicle may want to argue that r 306 applies and the speed limit does not apply to them in the circumstances to try to get out of a traffic infringement.  But if they are involved in a crash and someone dies or suffers GBH they can expect a custodial sentence.  Is that worth the risk?

In another post, Victoria Police and Ambulance Victoria MoU determines maximum speed for responding ambulance (July 4, 2019) I was told about an MOU where police would not issue an infringement provided the ambulance was travelling not more than 25km/h over the speed limit. Ambulance Victoria confirmed that they did not have a policy that set a maximum speed but that if the driver is exceeding 25km/h an infringement will be issued that Ambulance Victoria will follow up to see if they should make representations to have the ticket withdrawn and the driver can always elect to challenge the infringement in court. Again that’s not directly applicable to this NSW scenario but it gives some indication of how other jurisdictions view the issue. 

The driver’s personal risk assessment

Let us assume that there is no accident, but an infringement notice is issued so the police have formed the view that the conditions for the application of r 306 do not apply.  Let us also assume that for whatever reason taking the matter to court is ruled out or not successful.  If r 306 does not apply the driver is subject to the normal penalties for speeding. The offence of exceeding the speed limit is set out in the Road Rules 2014 (NSW) r 20. The maximum court penalties for exceeding the speed limit are:

  • by less than 30km/h – 20 penalty units.
  • by 30km/h or more – 20 penalty units and automatic disqualification from driving for 3 months;
  • by 45km/h or more – 30 penalty units and automatic disqualification from driving for 6 months;

The periods of disqualification mentioned apply if the court makes no specific order.  A court can increase or, in some circumstances, decrease that period of disqualification (Road Rules 2014 (NSW) r 10-2). A penalty unit is $110 (Crimes (Sentencing Procedure) Act 1999 (NSW) s 17) so the maximum fines range from $2200 to $3300.

If the matter is dealt with by way of a penalty notice, ie without going to court, the penalties are (Road Transport (General) Regulation 2021 (NSW) sch 5 (fines) and Road Transport (Driver Licensing) Regulation 2017 (NSW) Sch 1 (demerit points)):

  • Exceed speed limit by less than 10km/h $128 and 1 demerit point;
  • Exceed speed limit by more than 10, but less than 20km/h $295 and 3 demerit points;
  • Exceed speed limit by more than 20, but less than 30km/h $507 and 4 demerit points;
  • Exceed speed limit by more than 30, but less than 45km/h $970 and 5 demerit points; and
  • Exceed speed limit by more than 45km/h $2616 and 6 demerit points

Where the driver has exceeded the speed limit by more than 30km/h, Transport for NSW may elect to suspend or cancel their licence (Road Transport Act 2013 (NSW) s 59 and Road Transport (Driver Licensing) Regulation 2017 (NSW) cl 67). Further if the driver is exceeding the speed limit by more than 45km/h and is stopped by police (rather than detected by a speed camera) the police officer can immediately suspend the driver’s licence for a period of 6 months or, if a person is killed or injured, until the matter is finalised in a court (Road Transport Act 2013 (NSW) s 224).

The driver can do a personal risk assessment. 

I’m exceeding the speed limit by less than 10km/h. At this speed the risk of crashing is not materially increased so it will be easier to argue that notwithstanding the fact that I’m speeding, I’m taking ‘reasonable care. I think I meet the conditions for r 306 but if I’m wrong, I face a fine of $128 and 1 demerit point. 

Versus:

I’m exceeding the speed limit by more than 45km/h. The risk of crashing is materially increased so it will be hard to argue that I am taking reasonable care.  I think I meet the conditions for r 306 but if I’m wrong, I face a fine of $2616 and 6 demerit points; if I’m stopped by police I will lose my licence for 6 months and if I’m fined after detection by a speed camera, Transport for NSW may cancel my licence.  If I crash at this speed, and someone is killed or seriously injured, I can expect to go to prison or be subject to an intensive correction order”. 

What risk are you willing to take?

Conclusion

The question asked was

As a manager, leader, and mentor to these drivers, how should I determine what a reasonable person may have concluded regarding that situation in order to give them valuable feedback for the future?

The answer is consider the matters listed in Wyong Shire v Shirt

… the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities.

When considering those things remember:

  • Any advantage you try to gain by travelling fast is lost the moment there is a collision;
  • The single most important job for the driver of an emergency vehicle is to get to the scence – and that means don’t crash;
  • The risk of death or GBH must go up the faster the vehicle is travelling;
  • The speed limit is based on the road condition, type etc.  It is the official view of the maximum safe speed on that road.  Emergency services are given some leeway and the use of lights and sirens is meant to reduce the risk, but the use of lights and sirens does not affect the performance of the vehicle or the road.  If the nature of the road makes it dangerous to drive on it at 130km/h then it’s dangerous whether there are lights and sirens or not;
  • The road laws specifically provided that exceeding the speed limit by more than 45km/h is an aggravating factor. If there is a collision at that speed, and another person is killed or seriously injured, the driver can expect a custodial sentence;
  • Eburn’s rule of thumb: If a person on the side of the road watching the emergency vehicle go past would say ‘gee they’re moving’, then you’re going too fast.

The driver also needs to assess their own risk appetite.  If it goes wrong and neither the police nor the court thinks r 306 applies (and if you crash, r 306 won’t apply) what is the amount of penalty you’re prepared to risk?

My own view is that travelling 50km/h over the posted speed limit could never be justified and it would be very hard to persuade a police officer, or a court, even in the absence of a collision, that the driver was taking ‘reasonable care’ – but I’m not the magistrate and the driver can argue the point if they want.

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.