A correspondent has brought to my attention the decision of the NSW Supreme Court in Health Administration Corporation v CJL Haulage Pty Limited [2015] 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 [37]) ‘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 [2015] NSWCA 128 at [4] ‘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’ ([13]). 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 [61]) ‘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 [29]) 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 [51] 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 [10]) 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.
Legal lessons
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.
Australian Emergency Law 
Michael, interesting read. Whilst I don’t know how it stands legally, the simple way I’ve always been taught through SES, is that it “must be safe and expedient”- if we have a collision, then clearly it wasn’t safe and expedient to drive down the wrong side of the road, at the speed they were driving, etc.
It’s simple, makes sense to a layman though as I said, don’t know how it stands legally- it might just be a lazy way of saying, “be careful!”.
Luke a test like ‘your driving “must be safe and expedient”’ isn’t very helpful as one can only tell, in hindsight, whether it was safe. My ‘rule of thumb’ advice is ‘you can do whatever you want, provided you don’t crash’ which also might not be helpful. As for driving too fast, I say ‘If you’re driving in such a way that a person on the footpath would say ‘gee they’re really moving’ then you’re going too fast!” I don’t know if that helps, either.
In my original post I implied that this action was (probably) being taken by each parties insurer. It would seem that the action was started by the trucking company’s insurer to try to recover what they had paid to the injured trucker and it would have been defended by the insurer of the ambulance, the NSW Treasury Managed Fund. Reading the case again there is actually no discussion of what compensation was being sought. It is equally likely that this was a dispute between two insurers as to who had to pay for the damage to the truck and the ambulance. IF that is the case it is even worse that we, the community, funded two judicial officers and all the court support staff to sit and determine who had to pay for damage to cars. Further the local courts jurisdiction is limited to $100 000 (http://www.localcourt.justice.nsw.gov.au/Pages/cases/civil_cases.aspx), pocket change for the insurers. If each insurance company had ‘senior counsel’ (ie a QC) then they also (probably) had junior counsel and a couple of solicitors. The cost of all this must have exceeded $100 000!
Either way, I’m pretty sure the case had nothing to do with how much compensation either the truck driver, or the ambulance officer received.
Victorian ambulances have now fitted transmitters that trigger road traffic cameras which inform licensing that ambulances are on Code 1 calls. (they only work when lights and siren are in action).
Further, what ever happened to the reasonable care requirements.
I’m not sure what you mean by ‘what ever happened to the reasonable care requirements’? It is a requirement that all drivers exercise ‘reasonable care’. In this case the Magistrate found the ambulance driver did not as the siren was not on (a ‘surprising’ finding according to Button J but that’s what the Magistrate concluded); the ambulance was doing 80km/h on the wrong side of the road and the driver wasn’t paying sufficient attention to the traffic on her right side (given that they would not be expecting to have an ambulance on the right side of the road) and so she didn’t see the truck driver indicating his intention to turn right – which he did. The truck driver on the other hand, was acting reasonably when he turned right given her finding that there was no siren on and it was reasonable for a driver, turning right from a right hand lane, to be looking at vehicles in front of him rather than looking for a vehicle coming behind him on the ‘wrong’ side of the road.
In reference to ‘reasonable care’.
I am of the belief that once an emergency vehicle enacts lights and sirens they are exempt of natural road law. Having said that national regulations clearly emphasized either one or the other or both need to be in action.
So if one see red or red and blue flashing lights then they must give and or make way for the vehicle using said lights. If the vehicle is using only a siren then the urgency may not be as much as full compliment of lights and sirens.
Reasonable care…. Drivers of all motor vehicles must exercise all reasonable care at all times whilst driving a motor vehicle.
Nigel
There really is no excuse for any service other than the police, or at 3am, to use lights or sirens. If it’s an urgent call put them all on, if it’s not turn them off. I can’t imagine anyone using a siren without beacons but beacons without siren are common enough. The problem is that rule 306 (giving the exemption) and rules 78 and 79 apply even if just lights are on, so a driver may think lights, but no siren, means something less than the full kit, but legally it doesn’t make a difference but it may confuse other drivers if they either give way when the emergency vehicle driver doesn’t expect them too (as they don’t have the siren on) or they don’t give way because they can see the lights but no siren or they don’t notice the emergency vehicle because there’s no siren. So my view of reasonable care is, as I say, if it’s late at night and there’s no traffic to warn or your on an isolated country road and there’s no other cars then sure, don’t turn the siren on, but if it’s daylight, your approaching an intersection, there is, or might be, other traffic on the road then put everything on, or nothing.
Good morning Michael
I have been following your posts for some time now, & just wanted to comment on a few; also express my appreciation for your interesting & insightful views on what is never a straightforward area. I started my ambulance career in 1974 in country NSW – when the world was a much less complex place (although on reflection, not necessarily a better place). At that time, legal issues were pretty much non-existent for ambulance officers (drivers / bearers etc). There was never any discussion about the possibility of being sued; I never gave a police statement at any time with ASNSW, even after some dodgy cases; I didn’t even know another ambo who had been to court. All very different now.
I read with interest your post on the ambulance vs truck case. First up, I would share my layman’s view that this case does seem like an awful waste of time & money, with not much of an outcome.
But in terms of the content of the case, this has raised some pertinent points about ambulances (fire trucks!) responding urgently, & the wording in Aust Road Rules about “it is reasonable that the rule should not apply.” The ACT Ambulance Service (ACTAS) appears to be somewhat unique across Australia / NZ in that we permit an ambulance crew to not respond urgently to a case allocated to them as an urgent response, if they feel that it is not “reasonable” to do so.
As you may be aware, most ambulance services utilise Advanced Medical Priority Dispatch (AMPDS) as their dispatch software – in fact, ACTAS is the only service that does not. AMPDS is an extremely risk-averse product, & runs on strict protocols & call-taker scripts. If certain boxes are ticked by the call-taker, then an automatic urgent response is triggered. As an example – breathing difficulty triggers an urgent response – & on the surface, most people would consider this to be “reasonable”. However, if the caller is a 22 year old in good health who has intractable hiccoughs, & they are asked by a call-taker if they have any difficulty breathing, then the answer may be (& actually has been) “yes”. In that context, it might not be seen as reasonable to provide an urgent response, but in most ambulance services, this would still be responded to urgently, on the basis of the “yes” answer to difficulty breathing.
While in the NSW case (responding to an MVA) there isn’t any certainty about how badly injured people may be, in many cases (as above) there is more information provided before the ambulance arrives at the case that would strongly suggest it is not reasonable to do things like drive on the wrong side of the road to get there. I have a feeling that at some time in the near future when there is a misadventure with an emergency vehicle responding urgently this will be looked at seriously. I would stress that this is not reviewing what the case turned out to be when people are on scene – it is very much about the information the communications centre & crew had before they arrived on scene (anyone can be very wise with the retro-spectoscope!)
Re the issue of whether or not the siren was on – I found that an interesting discussion, given that 306(b) provides for lights or an “alarm”. In a practical sense, sirens are infinitely less useful than lights, & almost certainly this ambulance would have had many forward facing lights, + flashing headlights. It is also hard to believe that an ambulance crew would enter an intersection with traffic, on the wrong side of the road, without the siren on – but stranger things have happened.
However, if it was correct they did this at 80 k/h, no amount of lights or sirens will help you then, & it probably fair to say that this doesn’t represent the driver “taking reasonable care”.
On a side note – if this had occurred in Canberra in recent times, siren & lights activation is recorded on the case log in the communications centre – we can actually tell when (& roughly extrapolate where) each time the lights & sirens were turned on & off. Big Brother really is with us!
In January, you referred to the ASNSW v Worley case, with the adrenaline administered to the postman with the anaphylaxis. This was a really interesting case – clinically, there wasn’t much evidence to connect the adrenaline administration to the eventual outcome, although that is not how it was seen at the time. Just as a bit of useless background, when the initial judgement was handed down, I was a member of the Council Of Ambulance Authorities National Clinical Committee (all the ambulance services medical advisers & senior paramedic clinicians). At the time the case was presented to the group, most Aust & NZ ambulance services treated anaphylaxis in a similar fashion to NSW. Within 3 months, everyone had modified their practice. In over 15 years of membership of this group, I had never seen a consensus shift that quickly!
Anyway – please forgive my lengthy ramblings. Your views on some of the significant & contemporary legal issues affecting emergency services workers are most welcome. Thank you again
Best wishes
Howard Wren
General Manager – Education
ACT Ambulance Service
Hi Michael. I just came across this article you wrote while I was doing some research as the exact same thing happened to me. I was turning right and an ambulance came speeding up behind me and tried to overtake after crossing double while lines and driving on the wrong side of the road causing an accident. They also did not have the siren on but they claim that the lights were on. I never saw it approaching because it came around a bend and I was indicating where I was going, but the trainee driver of the ambulance ignored my indicator and attempted the overtake anyway. I don’t have comprehensive insurance so I claimed damages to my vehicle against the ambulance insurer thinking it was a pretty simple case… the ambo smashes into me, I have clear cctv footage of the accident, so it’s simple… ambulance is at fault for hitting me. But turns out it’s not that simple, the insurance are trying to blame me instead and refusing to fix my car. Obviously they are biased because they don’t want to pay, but they are not pursuing me for the damage to the ambulance either so my insurance is not getting involved to help me (I have 3rd party only). I have no legal outlet to fight them unless I take them to court myself, one little guy vs a massive insurance company. If you have any information that might help me, I would appreciate any advise.
This is what happened to me:
Daniel, I have commented on your case – see https://emergencylaw.wordpress.com/2019/09/15/colliding-with-an-ambulance-is-just-another-car-accident/. The answer is to take them to court. If the value of your damages is less than $25000 you can take the action in the Queensland Civil and Administrative Tribunal (QCAT) (see https://www.qcat.qld.gov.au/matter-types/minor-civil-disputes). There’s nothing unusual in that, that is how everyone has to pursue a debt and it’s designed to be ‘do it yourself’, but you’re not going to get anywhere unless you take that action. That is why QCAT is there and that (or the Magistrate’s court) is the only place where you can go to get an order requiring the other side to pay.