Today’s question is about a

…  public/commercial transport driver’s duty of care to their passengers in terms of first aid. By public/commercial transport driver I mean to include privately operated taxis and coach services that provide transport as well as state operated or contracted transit services.

For the purposes of the Model WHS Act and its various implementations into state legislation, the PCBU has a duty of care to their workers and others in their workplaces to ensure that there is provision for first aid to be available. Workers also have responsibility for ensuring they do not endanger themselves or others.

The Code of Practice for First Aid in the Workplace is also unambiguous in that a vehicle operated by a worker also falls under the definition of “workplace” and has the same requirements of ensuring workers have access to first aid as would a fixed premises.

That said I understand that while individual workers have an obligation to take reasonable care for the health and safety of others, they do not necessarily have a duty to provide any first aid treatment. The exception being unless they are appointed as a first aid officer, which many public transport drivers certainly are not.

However, in the case of a public or commercial transport driver these occupations are frequently regulated, and the drivers are held to have specific safety obligations to passengers.

  1. My question is to what – if any – extent a public or commercial transport driver owes a duty of care to a passenger in relation to providing first aid should a passenger become unwell or injured during a journey?
  2. I take it as a given, they cannot simply abandon a passenger who becomes unresponsive or severely unwell (extreme breathing difficulty, etc) in the middle of transport without at least calling an ambulance. However, must a driver provide CPR, or follow any other instructions for care given by 000 operators?
  3. Must they supply first aid items to passengers if available and practical to do so, for example to control bleeding if the passenger sustains a wound?
  4. In addition, does it matter to the duty of care if the injury is or is not the result of actions by the driver (e.g. a bus driver pulls away from the stop while passengers are still walking down the aisle, causing the passengers to lose their footing and sustain an injury)?

These are interesting questions as I have in the past worked as a bus driver! 

The driver of any vehicle owes a duty of care to all road users, and it is axiomatic that they owe a duty of care to their passengers.  The driver of a public passenger vehicle – a bus, a ride share service, a taxi, a hire care – must owe a common law duty of care to the passengers (see for example Imbree v McNeilly [2008] HCA 40).

Work health and safety

Added to that is the obligation of the PCBU which in the cases of buses would be the bus company, but for taxis and ride share services, the driver themselves maybe the PCBU.

I’m not given a specific jurisdiction for this question, so I’ll use NSW law as my exemplar. As noted a PCBU must (Work Health and Safety Regulation 2017 (NSW) r 42(1)):

… ensure–

(a) the provision of first aid equipment for the workplace, and

(b) that each worker at the workplace has access to the equipment, and

(c) access to facilities for the administration of first aid.

If I think if my time ‘on the buses’ we were not trained in first aid nor did the buses carry a first aid kit; but there were field staff that we could contact by radio who did carry that equipment and could (and did) respond to incidents when required.  That may be sufficient for the PCBU to have meet these WHS requirements taking into account the nature of the workplace and the risk (r 42(3)).  

For a situation where the driver is self-employed, so they are the PCBU it would seem that they would need to, at least, carry a first aid kit. 

Public transport regulation

Public passenger services are indeed regulated, but neither the Point To Point Transport (Taxis And Hire Vehicles) Act 2016 (NSW), the Passenger Transport Act 1990 (NSW) nor the Passenger Transport Act 2014 (NSW), or their associated regulations (the Point To Point Transport (Taxis And Hire Vehicles) Regulation 2017 (NSW), the Passenger Transport Regulation 2014 (NSW) and the Passenger Transport (General) Regulation 2017 (NSW)) make any mention of first aid or emergency procedures, save that it is an offence under the Passenger Transport (General) Regulation to interfere with an emergency passenger help point or emergency equipment on a train or railway station (r 68B).

These Acts do allow the regulators, Transport for NSW and the Point-to-Point Transport Commissioner to set standards for operators.

Buses

An accredited bus operator must have a safety management system and apply with accreditation standards.  The Accreditation standards do not make specific mention of first aid requirements (Bus Operator Accreditation Package (January 2020)). A safety management system has to be developed by each operator taking into account the nature of their business. It must include, as a minimum, procedures for incident management (Safety Management System (SMS) Guidelines, NSW Government Gazette No 142 of 25.11.2005, p 9811).  A Bus Operator Guide: Managing Critical Incidents (November 2020) published by Transport for NSW says this about the Operator’s obligation to provide assistance to passengers:

2. Assistance to driver and passengers

  • Dispatch a suitable manager to attend the site to lend assistance to driver and passengers and to liaise with emergency services and media 
  • Provide Site Manager with passenger list or group contact person for long distance, tourist or charter services 
  • Inform driver who the Site Manager is and their expected arrival time on site.

The Bus Driver’s pocket guide for Managing Critical incidents (November 2020) tells drivers to take steps to ensure passenger safety by securing the bus, calling for assistance and ‘Render first aid as required’ (p. 3).  As noted above however, I cannot find any rule that says drivers have to be trained in first aid or buses have to carry first aid kits other than the general obligations under the WHS Act.

Taxis and ride share vehicles

The holder of a taxi licence has to ensure that ‘Taxis that stand or ply for hire in Sydney, Newcastle, Wollongong or the Central Coast must be fitted with a duress alarm system and a vehicle tracking system’ (Taxi licence holder obligations undated; Point To Point Transport (Taxis And Hire Vehicles) Regulation 2017 (NSW) r 16). The standards do not say anything about a first aid kit being required in the taxi. 

Taxi, ride share and hire car operators must have a safety management system in place (Point To Point Transport (Taxis And Hire Vehicles) Regulation 2017 (NSW) r 7).

Road transport regulation

The driver of a vehicle that is involved in a crash must stop and exchange particulars with others involved in the collision (Road Rules 2014 (NSW) r 287). They must also ‘give any assistance that may be necessary and that it is in the person’s power to give’ to any person injured in a collision (Road Transport Act 2013 (NSW) s 146; Crimes Act 1900 (NSW) s 52AB).

Discussion

With that identification of the law I can try to answer the questions.

  1. My question is to what – if any – extent a public or commercial transport driver owes a duty of care to a passenger in relation to providing first aid should a passenger become unwell or injured during a journey?

The driver owes a common law duty to take reasonable care of their passengers. The passenger is not a stranger so the rule that there is no duty to come to the aid of a stranger – no duty to rescue – cannot apply here.  If a passenger is injured or becomes unwell the driver would have to take reasonable steps to care for them. That may be no more than call for an ambulance or deliver them to somewhere safe, but as my correspondent notes, they cannot simply be abandoned. 

  • I take it as a given, they cannot simply abandon a passenger who becomes unresponsive or severely unwell (extreme breathing difficulty, etc) in the middle of transport without at least calling an ambulance. However, must a driver provide CPR, or follow any other instructions for care given by 000 operators?

The driver must do what is reasonable in the circumstances which includes their own circumstances and their own capabilities. It would be reasonable to follow instructions given by a 000 call taker but it may simply be beyond them, in the circumstances, to perform CPR.  Those circumstances may be their own emotional ability, or it may be due to other conflicting duties eg to secure the bus, ensure the safety of the other passengers, direct other traffic to avoid a collision etc.

And remember if we’re talking common law duty of care, and civil liability, it is only relevant if the plaintiff can prove that some other action would have led to a different outcome – eg that CPR would have been effective.

  • Must they supply first aid items to passengers if available and practical to do so, for example to control bleeding if the passenger sustains a wound?

Whether that’s a legal obligation or not it would make sense, I’m sure the driver doesn’t want people bleeding in their cab or hire car.  Again, it would depend on what is ‘reasonable’.  If the person has a blister and wants a band-aid, or asks for a headache tablet, then I don’t think there is any obligation to provide that.  If they suffer more serious injuries in the vehicle eg a passenger who falls when standing in a bus then it would seem like a reasonable response but it does beg the question of what is available.  To repeat when I was a bus driver we did not have a first aid kit so I could not provide that sort of equipment; but that does not deal with whether the bus operator should have provided first aid kits.

  • In addition, does it matter to the duty of care if the injury is or is not the result of actions by the driver (e.g. a bus driver pulls away from the stop while passengers are still walking down the aisle, causing the passengers to lose their footing and sustain an injury)?

It makes a fundamental difference.  As noted, the driver who is involved in a collision or crash (which could include a passenger in a bus colliding with the inside of the bus) has obligations to render assistance, this would not apply where the driver did not cause the injury or illness.  A driver has a duty not to cause an injury so if the injury is caused by the action of the driver (whether or not they are legally at fault) their duty to their passenger to deal with the impact of that emergency is much clearer, but it is still a duty to take reasonable care.

Further duties under the WHS Act are to ensure that a PCBU’s conduct does not expose a person to risk (s 19(2)). Where a person gets onto or into a passenger vehicle injured or unwell, they were not exposed to that risk by the PCBU. Where however they are injured in the PCBU’s vehicle, either by falling in a moving bus or being injured in a collision then it is the action of the PCBU that has exposed them to injury.

Conclusion

The Work Health and Safety Act does require a PCBU to have in place emergency plans and ensure access to first aid equipment and services.  The bus and point-to-point transport regulators also require operators to have in place incident management systems to deal with incidents that should include injury to or illness in passengers.   There is however no clear statement as to what that system should look like and taking into account all the circumstances, having a system to call for assistance may be sufficient. 

There is no clear statement in either the case law or the legislation that a driver must be trained in first aid and that a bus, taxi, hire or ride share car must carry a first aid kit.

The best we can say is that anyone who operates a public passenger service should have a plan on how they are going to deal with the issue and that plan has to be reasonable in all the circumstances.

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.