The test I give when talking on this area is ‘if a person, standing on the street, would say ‘gee that fire truck’s moving’ (or some such comment) then it’s being driven too fast’.

Thanks for the link to the article from the Herald Sun which does give some more details on the allegations. As noted in that article, the Crown didn’t have to prove its case as the accused entered a plea of guilty (presumably on advice of his legal advisers) but by entering a plea of guilty he admits all the offence and the Crown don’t have to prove anything. Equally the judge, once he or she accepts the plea must accept that the offence has been committed and sentence accordingly.

Because it was a guilty plea, the case didn’t establish any legal precedent or tell us anything about the manner of the driving. The important lesson for fire fighters and the drivers of emergency vehicles generally (police, ambulance, SES etc) is that the exemptions in the Australian Road Rules only apply to those rules and they are very limited. The more serious provisions that are contained in the Crimes Act or Criminal Code of the relevant state, still apply, so charges of driving in a manner dangerous or worse, manslaughter, can still be brought and as this case shows, the penalty is personal.

As for the liability, by which you mean, I assume, the liability to pay compensation, then yes that falls to the DSE (in this case) but the reality is its actually the TAC (Transport Accident Commission in Victoria). All vehicles are registered (except NSW Rural Fire Service vehicles) and all carry compulsory third party insurance designed to compensate people injured in accidents. The family of this poor girl will get compensated in money terms as would anyone who is injured in a motor vehicle accident where they are not the driver at fault. The deceased was clearly not the driver at fault (she wasn’t the driver) so she would recover from either the insurer of the family car or the fire truck. In this case we are told that the driver of the car (her dad) was in no way at fault so it will all come from the fire truck insurer but in reality it’s all the same pool of money.

If you mean criminal liability no the DSE would not have any of that unless they were complicit in the commission of the offence but the case law (which I wont go into in detail here) shows that this wouldn’t apply here.

Regards

Michael Eburn

http://www.theage.com.au/national/dangerous-driver-shouldnt-get-jail-term-20091016-h17z.html

also

http://www.heraldsun.com.au/news/black-saturday-firefighter-andrew-beckett-escapes-jail-over-firetruck-crash-that-killed-teenager-angela-zuclich/story-e6frf7jo-1225790348836

Judge Ross said that there was an “inescapable inference’’ that Beckett, who knew the truck was top-heavy when filled with water, was driving it ‘‘just too fast’’.

Judge Ross said there were few crimes that caused such suffering as dangerous driving causing death.”

WHy do you think 51km/h in a 60km/h zone would be considered dangerous or an aggravating factor? Is there more to this (court transcript, etc) that you’re aware of that explains this?

Also is there also potentially some liability on the CFA’s part (I assume he’s CFA and not DSE or MFB) if there is an inescapable inference that the truck would be top heavy when filled with water?

Let me know if you hear via your contacts when the Coroner’s report has been released.

Michael Eburn

I’m not certain of the deatils or where it is at (from a legal proceedings perspective), but thought it would make an interesting study given it invovled training (as oppossed to an emergency response).

Another relevant case is Stuart v Kirkland-Veenstra [2009] HCA 15 (22 April 2009) where the High Court had to consider the position of two police officers who found a person sitting in a car with a pipe from the exhaust into the car, but with the windows open and the engine off. After talking to him they came to the conclusion he was not displaying symptoms of being mentally ill (and the court explained that contemplating suicide was not, of itself, proof of mental illness) so in any event the police did not take him into custody under the Victorian mental health legislation. He later killed himself and the police were sued by his widow.

In that case the court was concerned that the whole point of mental health legislation is to ensure that the mentally ill are detained only as a last resort and only in specified circumstances, and the basic principles of autonomy and freedom had to be respected for everyone. They found there was no negligence by the police and they did not have the power to detain the person as he was not demonstrating symptoms that would have allowed the police to act.

All are cases where judgment calls have had to be made. In 2 of 3 cases the courts came down in favour of the defendant ambo/police officer but not until some years and many appeals later.

Michael Eburn
9 August

You might want protection from those that are not ‘in their right mind’ but no legislation will do that. As the litigation in NSW v West shows all these alleged indemnity clauses do is shift the argument as to whether they apply in the circumstances and what do they mean.

In my research I have only found 2 cases where these provisions have been successfully relied upon, and one was the case where a fire brigades inspector set fire to a theatre he was inspecting as he used a cigarette lighter rather than a torch to try and illuminate what he wanted to look at!

In all other cases they are generally ignored as the courts have found that under the common law, for whatever reason, there was no liability anyway. In the vast majority of cases where the emergency services have been sued, they have won; but the sort of protection clauses that people look to don’t stop either the litigation or lead to a result that would be different if they were not there. The reality is that the major effect of those clauses is to make people feel better, rather than actually achieve very much (and here, of course, is the plug, see the detailed discussion in Eburn’s Emergency Law, 3rd ed, forthcoming).

So it’s true there is no ambulance Act in WA, but I’m not sure what people think they need protection from. And if you are going to argue that you need some legal protection we need to consider the principal that if someone is injured by neglect or default that should be made good. Every ‘protection’ for one group is a bar to another.

They’re my thoughts. What do you think?
Michael Eburn

Mind you i am waiting to see the outcome of the Ambulance Service review that has been announced by the government to see what changes will be made as to if the provision of the service is to governed by an Act in the future or it will remain as it is at the moment.

But the 3rd edition whenever it dose come out will be joining my rapidly growing personal library as soon as it is available

Yes there are plans for a 3rd ed of the book, the manuscript is due with the publisher on the 17th August but that is also the date that the Victorian Bushfire Royal Commission is to hand down its interim report, so we may hold off to see what is said there. If there is anything you think should be included in the 3rd ed, or any improvements you can suggest, do let me know.

Michael Eburn