Today’s correspondent says:

In March 2025, my brigade was “reminded/informed” by our District Office that the consequences of any unrestrained load, falling from the uncovered “sky tray” of our 26-year-old, Category 1 Tanker, would be the driver’s liability.  I questioned this assertion based on the following.
The Rural Fires Act 1997, under Section 128, indicates that volunteers of the NSW Rural Fire Service are protected from liability for actions taken in good faith while executing their duties.  This means they generally cannot be held personally liable for damage or loss caused while performing their firefighting responsibilities.  However, this protection does not apply in cases of intentional misconduct, negligence, or corrupt conduct. For example, if a volunteer intentionally causes harm or acts negligently, they may still be held liable.
Our Cat 1 tanker, in the event of a “call out”, could be driven by any number of our qualified members.  Given the “emergency” situation, no one stops to check if the load is secure (which it is not been).  Might this constitute negligence in a worst-case scenario?

From AI searches, I am aware that:

The Heavy Vehicle National Law (HVNL) is the primary legislation regulating heavy vehicles with a Gross Vehicle Mass (GVM) of more than 4.5 tonnes. It aims to enhance safety, consistency, and accountability in the transport sector…
Key Components: The HVNL framework includes several crucial elements:

  • The National Heavy Vehicle Regulator (NHVR)
  • Chain of Responsibility (CoR), assigning legal responsibilities to all parties in the transport chain.
  • Detailed Vehicle Standards (covering dimensions, weights, load restraints).
  • Stringent Fatigue Management regulations (maximum driving hours, rest breaks, work diaries).
  • Enforcement and Compliance mechanisms.
  • Permits and Approvals for specific activities (e.g., oversize/overmass loads).
  • Educational Initiatives.
  • Penalties: Non-compliance with the HVNL can lead to significant penalties.

It appears to me that there may be a conflict between the two legislations I have quoted.  I accept that there may be liability on behalf of our driver, but given the CoR the RFS (owner of the vehicle) is not without culpability.

Tacit acceptance of CoR by the RFS may have had a bearing on their actions to “offline” our Cat 1 Tanker and install restraints in the sky tray. The vehicle was also found to be overweight, so equipment has been removed, making it a less effective firefighting appliance. 

In relation to the operation of RFS vehicles, does the HVNL take precedence over the Rural Fires Act 1997?  How does this impact the personal liability of volunteers?

There are a number of misconceptions in this question that need to be addressed.

Some legal principles

First, s 128 protects Rural Fire Service volunteers from civil, not criminal liability (Inspector Mayo-Ramsay (Workcover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356).

Section 128 does apply when there has been negligence by a firefighter; if it did not apply when there was negligence it would have no role to play.   If there is no negligence there is no liability even for poor outcomes.   Where s 128 applies it requires a standard of ‘in good faith’ which is different to the standard of ‘reasonable care’ expected by the law of negligence (see Meaning of ‘good faith’ (July 3, 2021)).  In West v NSW [2014] ACTCA 45, Katzmann J said (at [596]:

… for the purposes of s 128 a thing may be done (or omitted to be done) negligently but in good faith. Good faith may be made out where the relevant person does or fails to do something honestly, in good conscience, and for no improper or ulterior purpose, even if he or she acted or omitted to act negligently.

In Mid Density Developments Pty Limited v Rockdale Municipal Council [1993] FCA 408, Gummow, Hill, Drummond JJ said (at [34]):

The statutory concept of “good faith” with which the legislation in this case is concerned calls for more than honest ineptitude. There must be a real attempt by the authority to answer the request for information at least by recourse to the materials available to the authority. In this case there was a failure to meet that standard.

A driver who jumps into a truck who knows that ‘no one stops to check if the load is secure (which it is not been)’ is hardly acting ‘in good faith’.  Good faith would be honest, even if inept, attempt to check the load.

 Section 128 will have little role to play in the event of a motor vehicle accident on the basis that driving a motor vehicle is not a particular function or power of the fire brigades (see RFS fatal collision and s 128 of the Rural Fires Act (October 14, 2016)). 

Some NSW Rural Fire Service vehicles do not need to be registered – Road Transport (Vehicle Registration) Regulation 2017 (NSW) sch 1, cl 12.   Whether a vehicle is exempt from registration, or is registered, it and the driver are covered by the compulsory third party insurance scheme (Motor Accident Injuries Act 2017 (NSW), Part 2).   If a person is injured as a result of the use of the vehicle then they will be compensated by the relevant compulsory third party insurer; the driver will not be liable just as you are not personally liable to pay damages if you injure someone else whilst driving your own, registered vehicle (Motor Accident Injuries Act 2017 (NSW) s 2.11).   Where an RFS vehicle is not insured the relevant defendant is the ‘Nominal Defendant’ – a scheme set up to cover unregistered vehicle (s 2.29).   Although the Nominal Defendant can usually recover from the driver of an unregistered vehicle, that does not apply if the vehicle is exempt from registration (s 2.37(3)).  As noted RFS vehicles are exempt from registration.

The issues

With that legal background we can return to the issues.  First:

Our Cat 1 tanker, in the event of a “call out”, could be driven by any number of our qualified members.  Given the “emergency” situation, no one stops to check if the load is secure (which it is not been).  Might this constitute negligence in a worst-case scenario?

Might this constitute negligence? Absolutely.   The risk is that the load will come lose and injure a firefighter or other road user.  The possible outcome could be fatal. What could the driver do to manage that risk? Take a minute to secure the load.  Responding to a fire is not, or should not be, an emergency for the fire service.  For the fire service it’s a day at the office.  Further the emergency services respond to try and protect life and property.  Every person killed or injured in an accident with an emergency service vehicle is example of mission failure.  Just because someone’s life is at risk in a fire, the death of another person cannot be justified or excused.    So, is it negligent to drive a fire appliance with an unsecured load? The answer to that question is so obvious it is almost an axiomatic example. It is also, as noted above, unlikely to meet the standard of ‘good faith’ if there is not even an honest but inept attempt to ensure the vehicle is safe to proceed in circumstances where it is known that sometimes the load is not properly secured.

If the driver takes a vehicle with an unsecured load in circumstances and the unrestrained load moves and injures a firefighter or other road user, the driver would not be personally liable to pay damages to the injured person.  That liability will be covered by the third-party insurance scheme.  But the driver could expect to face criminal responsibility under Work Health and Safety legislation, road transport legislation and/or the general criminal law up to a possible charge of negligent manslaughter.   Section 128 will have no application here.

It is also true that the RFS could be liable in particular under the Heavy Vehicle National Law given as my correspondent says there is a statutory chain or responsibility; and under Work Health and Safety legislation.  The fact that a service is an emergency service does not mean it and its staff do not have to comply with the regulatory requirements designed to ensure the safety of others.

Conclusion

The question started with:

…  my brigade was “reminded/informed” by our District Office that the consequences of any unrestrained load, falling from the uncovered “sky tray” of our 26-year-old, Category 1 Tanker, would be the driver’s liability. 

That is true, the driver would be liable for any criminal issues arising from that failure which could range from a minor regulatory offence to criminal manslaughter depending on the circumstances.  The driver would not be personally liable to pay compensation to anyone injured in that accident.

The RFS may also be liable if it failed to take steps to ensure that their was a culture of safety so that drivers knew to stop and check loads and everyone knew of the need to secure loads in anticipation of call outs.   No doubt it was:

Tacit acceptance of CoR by the RFS … to “offline” our Cat 1 Tanker and install restraints in the sky tray. The vehicle was also found to be overweight, so equipment has been removed, making it a less effective firefighting appliance.

A dangerous firefighting appliance is not an effective firefighting appliance – see Suspended jail sentence for firefighter involved in a fatal accident (October 24, 2009). 

In relation to the operation of RFS vehicles, does the HVNL take precedence over the Rural Fires Act 1997?  How does this impact the personal liability of volunteers?

One does not take ‘precedence’ over the other; they work together.  The driver of a vehicle – any vehicle – is responsible for ensuring as best as they are able that it is safe and that is a more onerous duty when it is a heavy vehicle.  If the driver breaches the road rules including the Heavy Vehicle National Law, particularly if someone is killed or injured then yes, the driver would be criminally liable (see for example Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017)) as might the RFS – it’s not the case of ‘one or the other’.

As for civil liability, yes that will fall to the RFS or more accurately the vehicles CTP insurer.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.