A correspondent has brought to my attention the decision of the NSW Supreme Court in Health Administration Corporation v CJL Haulage Pty Limited  NSWSC 858 (1 July 2015). This case arose out of a motor vehicle accident on 25 July 2008 (nearly 7 years ago – justice moves slowly).
At the time the ambulance was being driven on ‘urgent duty’ in response to a call to a motor vehicle accident. Due to traffic ahead the ambulance was being driven on the wrong side of the road. The plaintiff was driving a truck; he turned right across the path of the ambulance and a collision occurred. Although it’s not clear the inference is that both ambulance officers and the truck driver suffered injuries. My understanding of the situation is summarised in my drawing attached. (Do note this is not to scale, does not represent the actual road layout etc. I’ve just read the judge’s description of what happened in paragraphs 4-6 and this is how I’ve visualised it for my benefit).
The issue became who was negligent? The matter was heard in the Local Court where the Magistrate, Stapleton LCM, found that the ambulance driver was negligent and the truck driver was not. The Health Administration Corporation (being the legal entity responsible for the ambulance service (see Health Administration Act 1982 (NSW) ss 9-13A)) appealed. An appeal from the decision of a Magistrate is heard by a single judge in the Supreme Court, in this case Mr Justice Button. Button J dismissed the appeal so the Magistrate’s findings and conclusions were affirmed.
This was an action in negligence. In negligence the plaintiff has to prove that the defendant was negligent that is that the defendant owed the plaintiff a duty of care, that they failed to exercise reasonable care and that as a result the plaintiff was injured. Button J said (at ) ‘it is noteworthy that the judgment says little, if anything, about the elements of the tort of negligence at common law, as modified by the provisions of the Civil Liability Act 2002 (NSW).’ That is, the Magistrate did not deal with the issues of duty, breach and damage, but that was because, said Button J, of the way the parties ran the case.
A court is an adversarial place where the judge or magistrate is asked to rule on the issues put before them. This case was run on the basis that the Australian Road Rules would determine the matter. This was unusual. The Australian Road Rules define driver’s obligations and these are enforced by way of criminal penalty, that is the rules set up criminal offences. Rule 306 that provides an exception for ambulance officers and others is providing a criminal defence. Compliance (or not) with the rules does not determine whether or not there has been negligence. As Meagher JA (with whom Gleeson and Sackville AJA agreed) said in Verryt v Schoupp  NSWCA 128 at  ‘the determination of what reasonable care requires in any given case is not resolved by asking whether the relevant conduct was or was not prohibited by one of those rules’.
In this case however, the parties did run the case on the basis that compliance with the road rules should determine where liability lay. The appellant Health Administration Corporation argued that the ambulance driver had the benefit of rule 306 and the truck driver was obliged by rules 78 and 79 to give way to the ambulance. The respondent trucking company (that was suing, no doubt, via its workers compensation insurer that would have met the liability to the injured driver) argued that in the circumstances these rules did not apply and so if the ambulance was not exempt then driving down the wrong side of the road at 80km/h meant that the ambulance driver was negligent.
So what was the arguments? The appellants’ argument was straight-forward. Rule 306 says
A provision of these 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.
They said those criteria were met and so the truck driver was required to remain where he was, not turn right across the path of the ambulance.
The truck driver’s argument was that there was no siren sounding and that the speed that the ambulance was travelling meant that the driver was not taking reasonable care.
Was the siren sounding? No-one could say, with certainty that it was. The truck driver said he didn’t hear it. The two ambulance officers, and an independent witness, said it was sounding some time before the accident but the ambulance officers had no recollection of the actual accident and the independent witness ‘was unable to say with certainty that the siren was activated at the time of the collision’ (). The magistrate had the benefit of seeing the witnesses, including the truck driver, and accepted his evidence that if the siren was on he would have heard it. Button J said (at ) ‘Whilst I respectfully consider that the finding that the siren was not operating at the time of the collision is a surprising one, to my mind it was open to the evaluation of her Honour’. That is he might not have reached the same conclusion but an appellate court is not there to simply rehear the matter. The court’s job is to ask whether the lower court made an error of law. Just because the lower court came to a different conclusion on the evidence does not meant that error was wrong, and that is the conclusion Button J reached.
The Magistrate also found that the ambulance driver was not taking reasonable care. She found (at ) that ‘the driving by the ambulance driver at a speed of 80 km/h on the wrong side of the road was, in all the prevailing circumstances, not reasonable, not prudent, and recklessly fast’. Further the driver was not paying sufficient attention to the vehicles on the left and did not at any stage consider whether she should move back to the ‘correct’ side of the road.
One interesting issue is that the Magistrate said (at  of Button J’s judgement):
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 she was attending. I accept that it was a lights and siren emergency which is a class of emergency where drivers are required to put on their lights and sirens so as to require, pursuant to the relevant rules, 78 or 79 I think it was, that vehicles move out of the way. But, to my mind, there must be a range of emergencies within that rule and there’s no evidence about what she was going to attend to. So there was no way to balance up whether the risk created by driving in the wrong direction on Newbridge road with the risk that drivers might turn right off it because they wouldn’t see it coming from behind, was a reasonable risk to take in the circumstances so that the rules should not apply. There was just no evidence in the defence case about it.
It was argued that this represented an error but Button J said ‘that was a statement that was objectively correct: there was indeed no evidence in the hearing about the details of the particular emergency to which the ambulance driver was travelling. Immediately before the impugned clause in the same paragraph, her Honour referred explicitly to the fact that it was a “lights and siren” emergency, and implicitly to the fact that it was a “class one” emergency’.
With respect to both their Honours I would disagree that ‘there was indeed no evidence in the hearing about the details of the particular emergency’. The evidence of the driver’s partner (at ) was that they ‘were tasked to attend a motor vehicle accident (‘MVA’) at the tollgates of the South Western Motorway’. That was the emergency, a motor vehicle accident. As I’ve argued before, they can’t know before they get there, regardless of what’s been reported, what the actual nature of a person’s injuries are or whether their injuries warranted an urgent response or not; see “‘Response’ driving with NSW RFS” (February 2, 2015). Evidence from ambulance crews that did make it, either that people were critically injured or that they were not, could not be relevant to a consideration by this driver as to what was required. As noted this was a ‘class one’ emergency – that was the details of the emergency they were attending.
Even so Button J could find no error of law, even if the Magistrate’s finding that the siren was not was ‘surprising’ and so the appeal was dismissed.
It is hard to generalise from one case based as it is on the facts, not legal principle. On the facts it would tell counsel that it may be prudent in a future case to lead more detailed evidence as to the nature of the call, but as argued above I don’t think that actually makes sense.
Specific evidence as to the use of lights and sirens may be relevant but reading the case it’s hard to know what other evidence could be called. As even Button J said, the finding that the sire was not on was ‘surprising’.
A ‘black box’ type recorder that could record speed and whether lights and sirens were on could be useful but hardly worth the expense.
This leads to my most significant observation. The big issue is not whether the ambulance driver was or was not negligent. The bigger issue is the whole administration of tort law. The ambulance officers were at work and would have been entitled to Workers Compensation under the Workers Compensation Act 1987 (NSW). The truck driver was also at work and would have received workers compensation. Depending on the nature of their injuries they would have also had rights under the Motor Accidents Compensation Act 1999 (NSW) but the injuries have to be very significant before it becomes worth trying to claim over and above any no fault workers compensation.
Given that all the people would have been entitled to workers compensation and give that the case was between the Health Administration Corporation and CJL Haulage Pty Limited rather than in their own name, one can infer that this was really a dispute between insurance companies. Even if it was not, even if the issue was whether or not the parties were entitled to common law damages above the workers compensation, they were both driving registered vehicles in the course of their employment. Neither the truck driver nor the ambulance driver would be personally liable.
So, there is a slight chance that this was about the damages to the parties but I think a much stronger inference is that this was between the insurance companies fighting over who had to pay. And it took 7 years to work it out (assuming there are no further appeals). And it took taxpayers to pay the judge and for the court. And the parties had to pay all their solicitors and counsel. And remember there was no chance that any driver was going to be personally liable and they were all going to get at least workers compensation regardless of the outcome.
Installing a ‘black box’ or leading different evidence wasn’t going to have any significant impact on the people involved in the accident. It may have just resolved some issues with more certainty for the benefit of one insurer or the other. You do have to wonder why the taxpayers of NSW (and Australia) continue to fund such a ridiculous, slow system for insurance companies to try to settle arguments over who pays what to each other’s shareholders.