Today’s correspondent asks a question about:

… the definition of an emergency n the NSW road rules 2014 as it applies to a member of FRNSW, RFS or SES.

The Road Rules 2014 (NSW) dictionary states that an emergency worker driving a vehicle changes the status of the vehicle to an emergency vehicle. The dictionary states that an emergency worker is:

(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.

The NSW State Emergency Service defines an emergency as follows ((I believe this is taken from the definition contained in the State Emergency and Rescue Management Act 1989 (NSW) (the SERM Act) s 4):

Definition of “emergency”

(1) In this Act—

“emergency” means an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which—

(a)     endangers, or threatens to endanger, the safety or health of persons or animals in the State, or

(b)     destroys or damages, or threatens to destroy or damage, property in the State, or

(c)      causes a failure of, or a significant disruption to, an essential service or infrastructure,

being an emergency which requires a significant and co-ordinated response.

I ask what scenarios given the above definition constitute an emergency? Would a land search for a person missing in the bush meet the definition?  Or an elderly dementia patient missing in a urban environment? Given there is a threat to loss of life, and it requires a coordinated response. Land searches in NSW typically are significant multi agency responses involving NSW Police, RFS, SES, NSW Ambulance etc.

This is not to advocate that transport to a land search requires a lights and sirens response. In almost all cases it would not, and it would not past the “reasonable” test. Rather I ask the question because if the scenario is an emergency, the workers transporting to (and possibly from) the search are now ’emergency workers’ and the vehicle the workers are travelling in, is now an ‘emergency vehicle’. The legislation provides for improved conditions for an ‘emergency vehicle’ to get to the scene. For example:

• A emergency vehicle could park at the scene or nearby, contrary to the stated council or other parking regulations enabling more rapid access of workers and gear to scene (Road Rules 2014 (NSW) r 307);
• A driver under 25 could drive with greater than 1 passenger under 21 after 11pm (Road Transport (Driver Licencing) Regulation 2017 (NSW) r 38);
• A emergency worker who is a green p plater is now permitted to use a mobile phone via a hands-free cradle to access google maps which may enable a quicker route free of traffic congestion.  (Road Rules 2014 (NSW) rr 299, 300 and 300-1);

My other question relates to when does the “course” of an emergency end?

In the case of a land search. Is it when the person lost in the bush is found/ operation is concluded. (Remembering that this may be several days) Or is it when the emergency vehicles arrive at the search location or is it when the emergency vehicle return to their base/home location at the end of the day.

The definition of emergency quoted above is indeed from the SERM Act and as it says, it is the definition that applies ‘in this Act’. It is not the definition for the purposes of the Road Rules.  The Road Rules do not define emergency. The issue arose in the case of Wells v R [2017] NSWCCA 242 (discussed in my post Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017) and the many posts mentioned there).  In that case counsel for Mr Wells argued (at [126]) that the trial judge was wrong ‘to find that, as a matter of definition, an emergency must have some aspect of urgency to it… To the extent that it was found by his Honour that the return of the appellant to the weighbridge was not an emergency, as defined, that was said to have led to error.’

Button J (with whom Gleeson JA and Harrison J agreed) said (at [132]):

I do not accept that “an emergency” can be an event that does not have at least some aspect of urgency to it. I say that not only as a matter of ordinary English usage. I say that also because, with respect, I accept the submission of the Crown that the interpretation for which the appellant contends would lead to absurdities; for example, a tanker being driven to an event that was patently not urgent – such as a routine meeting of volunteer firefighters – could nevertheless be judged as travelling to an emergency, with consequent modification to the operation of the Road Rules.

In an earlier post – When is a member of the emergency services an ‘emergency worker’ for the purpose of the Road Rules 2014 (NSW)? (January 5, 2017) – I said:

The real impact, in my view, of these rules is not in the protection they give the emergency services but the protection they give the police.    The police can’t have an approach of ‘we let the firies off because they’re good people’, rather we are governed by ‘the rule of law’: ‘Be you ever so high, the law is above you’…. That includes the driver of an emergency service vehicle who is bound by the law as much as anyone. The reason police, fire fighters and paramedics can drive contrary to the road rules is not because they are exempt from the law, but because there are specific laws to allow them to do those things, but they must comply with that law – this is fundamental to the issue of the rule of law.

The presence of rr 306 and 307 means that a police officer who sees a fire appliance at the side of the road whilst the crew are fighting the fire can say to anyone who asks ‘they’re allowed to do that’, but that same officer, who thinks it’s not safe or they don’t need to be where they are can direct them to move the vehicle or issue a ticket.

The same for a judge.  If the judge, looking at all the facts, thinks that what the driver did was reasonable he or she can acquit them and point to the law as justifying that conclusion.   I think that’s what would happen in the scenarios above, if on all the facts, a police officer or judge thought the actions of the emergency worker were justified either in parking by the side of the road or crossing the road against a red ‘don’t walk’ light they can take no action and justify that to the community as being consistent with the law, not just a decision on a whim.    And if they do issue an infringement notice, the person who receives it has an opportunity to challenge that decision and make an argument that is more than just ‘but this is silly’. They can actually point to the law.

Ultimately these clauses are very, and I would say deliberately, imprecise to give flexibility to the RFS (and other emergency services) the police and the courts. If, in all the circumstances, the way the vehicle is driven, or parked, is reasonable then the police and courts can ‘let you off’ not on the basis of hidden discretion but because the law says they can; if it is not reasonable then you can still get a ticket.

(See also Road traffic exemption – Who determines if it is reasonable that the provision should not apply? (May 22, 2016)).

Discussion

I think that ‘a land search for a person missing in the bush …  Or an elderly dementia patient missing in a urban environment’ would meet the definition of emergency within the meaning of the State Emergency and Rescue Management Act.  Whether the driver of an SES, RFS or FRNSW vehicle is ‘providing transport in the course of an emergency’ depends on the particular task that he or she is engaged in.  Even if it is an emergency, the use of any particular exemption depends on whether it is reasonable and whether the driver is taking reasonable care.

These issues most likely to arise if there is an accident. They are therefore more relevant when ‘driving’ rather than parking.  If a driver was attending to a task that was not urgent, even if it was part of the emergency response, and there is a collision then a court, as the court did in Mr Wells’ case, may find that there was no ‘emergency’ for the purposes of the Road Rules even if there was an emergency within the meaning of the SERM Act.  That might also be true if a driver was detected using a phone.  Even if the police or court accepted that there was an ‘emergency’ they still need to consider whether the exemption should apply and whether the driver was taking reasonable care.  If there was a collision that is going to suggest that there was not reasonable care. That too was discussed in Wells’ case where the court said even if Mr Wells counsel was correct and it was an emergency, it would not have helped as Mr Wells was not taking ‘reasonable care’ so the exemption from the road rules would not have applied (see [134]-[135]). 

These issues are less likely to arise in parking matters, but they may if a vehicle is parked so dangerously that another vehicle collides with it. In that case too a court would ask ‘what was the driver doing that was so ‘urgent’ that this was an emergency?’ and then ‘and did they take ‘reasonable care’ in all the circumstances?’

For the purposes of the road rules the emergency ends when the urgency ends. 

Conclusion

There is no definition of ‘emergency’ for the purposes of the Road Rules.  The closest we have is the discussion in R v Wells which tells us that the purpose for which the vehicle is being driven, or parked, must have ‘at least some aspect of urgency to it’.  Storm damage to a house may be part of an emergency for the SERM Act but it doesn’t make it an emergency for the Road Rules. Responding to a hazardous material spill may be an emergency, returning later when it has been cleaned up to collect the crew is not (R v Wells).

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.