When Following the Road Rules is Negligent?

PUBLISHED 26 Oct 2015

The Accident

At the time of the accident, an Ambulance was being driven on ‘Urgent Duty’ to the scene of another vehicle accident. As there was heavy traffic at the time, the Ambulance was being driven on the wrong side of the road. The Plaintiff, a truck driver, attempted to turn right across the path of the oncoming Ambulance. Both parties sustained an injury from the motor vehicle accident.

Compliance does not determine Negligence

It is important to note at this point at this point that compliance, or non-compliance, with the road rules does not determine if negligence exists or not.

As Meagher JA (with Gleeseon and Sackville AJA agreeing) said in Verryt v Schoupp [2015] NSWCA 128:

“The determination of reasonable care requires in any given case is not resolved by asking whether the relevant conduct was or was not prohibited by one of these rules”

The Case

At first instance, the matter was heard in the Local Court, and found in favour of the Truck driver. Health Administration Corporation then appealed to the Supreme Court of New South Wales. The issue became who was negligent?

This is an unusual case because it was run on the basis that non-compliance with the ‘Australian Road Rules’ gave rise to negligence.

The Appellant, Health Administration Corporation, argued that they had the benefit of an exception of Rule 306, further that the truck driver was obliged to follow rules 78 and 79 (the rules that drivers must give way to emergency vehicles).

Rule 306:

A provision of the Australian Road 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.

The Respondent the trucking company argued that that Rule 78 and 79 did not apply as the siren was not on and that as the ambulance was driving at 80km/h down the wrong side of the road and was not exempt from Rule 306. Therefore the Ambulance was negligent.

Were Siren Sounding?

The two ambulance drivers had no recollection of the incident and an independent witness “could not say for certain”. The magistrate, at first instance, had the benefit of seeing the witnesses and accepted the truck driver’s evidence that “if the sirens were sounding he would have heard it”.

While the appellant judge, Button J, did not agree with the magistrates finding he could not find an error of law and therefore agreed that rules 78 and 79 did not apply.  The appeal came down to whether or not the expectation in rule 306 applied.

Rule 306

At first instance the Magistrate found that the Ambulance was driving recklessly and that Rules 306 did not apply, referring to Rule 306 (a) (ii):

“It seems to me that a further part of the assessment of whether it was reasonable that the rules should not apply, is how serious was the emergency [the ambulance] attending….there’s no evidence about what [the ambulance] was attending to. So there was no way to balance up whether the risk created by driving in the wrong direction….. was a reasonable risk to take in the circumstances”.

Ironically in the paragraph above the magistrate referred to the accidence the ambulance was to attend was a “lights and sirens emergence” and was a “class one emergence”. While it was argued that this was an error of law, Button J stated that this statement was objectively correct and there was therefore no error.

I would not be surprised is there will be an appeal in the future.

Conclusion

While this is most likely not a personal injury claim, as it was commenced in the local court, and therefore is probably between two workers compensation insurance companies. It shows that there are other avenues around high contributory negligence percentages. Following the road rules can, at times, be the difference between negligence being found or not.

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