Jackson v Lithgow City Council is an interesting case from the value placed on the ambulance paramedic’s case sheet.  The patient was found unconscious at the bottom of a drain but it was unclear how he came to be there.  He alleged he fell over a concealed, low brick wall and struck his head.  He alleged that the fall was due to the negligence of the council in how the wall was constructed and given that, in poor light when approaching from a particular direction, it was obscured as was the fall over the other side.

Was the council negligent?  That depended on whether or not the plaintiff stumbled over the wall or fell whilst trying to climb the drain whilst in an intoxicated state.  The trial judge found that she couldn’t determine ‘on the balance of probabilities’ what had happened and so the plaintiff’s case was dismissed.  The plaintiff appealed to the Court of Appeal [Jackson v Lithgow City Council [2008] NSWCA 312] where the court placed a great deal of weight on the ambulance officer’s record that said “Fall from 1.5 metres on to concrete”.  The court accepted that this was an opinion based on what the officer’s observed and supported the plaintiff’s claim.  Accordingly the appeal was upheld and a verdict given for the plaintiff.

The defendant council appealed to the High Court of Australia.  At the hearing for ‘Special Leave to Appeal’ [Lithgow City Council v Jackson [2009] HCATRans 184] (an appeal is not automatic, you have to persuade the Court that there is a real issue of law that needs to be resolved by the Court) the parties identified that the evidence before the Appeal Court was incorrect.  In making copies of the casualty record they had cut off part of the officer’s note.  He had written “? Fall from 1.5 metres on to concrete” but the question mark had been cut off.   The High Court held that they couldn’t review the decision of the Court of Appeal when the Court of Appeal had determined the matter on incorrect evidence; they returned the matter to the Court of Appeal to reconsider the case with the correct patient records.

In the second judgement [Jackson v Lithgow City Council [2010] NSWCA 136] the Court of Appeal again upheld the appeal holding that, although the “?” showed that the officer wasn’t certain it was still the best opinion that he could form, from his observations, and continued to support the plaintiff’s claim.

The case confirmed a point that I make in my book Emergency Law (3rd ed, 2010, The Federation Press, pp 18-19) that the records of an ambulance officer are ‘business records’ that can be admitted to prove the truth of what they say without the need to call the paramedics to give direct evidence of an event that occurred many years before.

The interesting issue in this case was the court’s understanding of why paramedics would record an opinion of what happened to the patient.  The judges appeared to think that the opinion was recorded either for:

  1. Forensic purposes (see Jackson v Lithgow City Council [2010] NSWCA 136, [19] where we are told that the facts observed did not ‘…cause the maker to posit any other possible cause’) ie to make an investigation and determine what happened for subsequent judicial proceedings; or
  2. Because they are required to do so by the form (see the Lithgow City Council v Jackson [2009] HCATRans 184 where counsel for the plaintiff, Mr Wheelhouse, says:

An ambulance officer would be trained, in our respectful submission, not to be adamant or absolutely conclusive. It does not detract from his opinion, namely, that the patient’s history was that the respondent – that occurred when he had fallen 1.5 metres onto a drain. It merely indicates not an absolute certainty in respect of that opinion. It does not indicate any other alternative hypothesis in a case merely something that would be consistent with training, that is to say, not to be adamant but to put forward one’s best opinion taking into account all the circumstances.

With great respect, your Honours, it could not be otherwise than the ambulance officer held the opinion, otherwise he would not have written it in the second line in a document so crucial, that is when it expressly required him to record the patient history. (Emphasis added).

What we know of course is that paramedics record the patient history as part of their work to determine what might be wrong with the patient and to assist in the ultimate diagnosis and treatment options.  It is a therapeutic issue; not a forensic one.  This was recognised by Basten JA who said (Jackson v Lithgow City Council [2010] NSWCA 136, [97]):

 The cause of the injuries would not have been unimportant to the ambulance officers. They knew that the appellant had suffered a significant head injury from his level of consciousness, the observable superficial injuries, his response to stimuli and his Glasgow Coma Score. An assessment of the appellant’s condition by relevant medical officers at the hospital, particularly in relation to the potential seriousness of the head injury, might well take into account the cause of the injury. A record of the most likely cause was therefore, in all probability, a matter of some significance to the ambulance officers who prepared the report. (Emphasis added).

In Basten JA’s view, however, it is the medical officers that would consider history relevant to an assessment of the potential seriousness, not the ambulance officers.

Paramedics have to take the history into account in order to assess the patient’s medical condition and make an assessment for example whether the person is merely intoxicated and asleep or actually injured but they are not making any assessment as to whether he fell over a wall, down an embankment or fell off the wall whilst standing on it.  They almost have to assume the worst possible scenario consistent with what they see.  They have to make a quick impression, albeit based on all that they observe but they are not making a forensic attempt to investigate and rule out all possible causes.

If one sees the purpose of recording a history as part of the officer’s therapeutic decision making it may be that the court would not have been so convinced that the officer was trying to assess the evidence to come up with the best fit as to what happened, rather than recording what appeared may have been the cause and would be used to help explain their diagnosis and their treatment actions.  In that context the use of the word ‘fall’ may have been consistent with him falling over the wall, falling when attempting to climb the drain or even being pushed.  Whether that would have made a difference to the outcome is a different question.

Michael Eburn
28 October 2010