Victoria’s Herald Sun newspaper is reporting on a legal action against Ambulance Victoria following the death of a man who was being winched into a helicopter after he ‘lost his footing and broke his ankle while walking in dense bush’ – see Peter Mickelburough, ‘Death fall lawsuit: Ambulance Victoria ‘failed’ in rescue after hunting mishap near Lake Eildon’ Herald Sun (Online) August 28, 2016 (and thank you Luke, for bringing the story to my attention).
Herald Sun stories are behind a paywall so readers may not be able to see it and I can’t reproduce the whole story here – the gist of it is however that the deceased man’s widow is suing AV in negligence over the rescue operation. She says ‘Ambulance Victoria failed in its duty of care to winch and treat her husband with reasonable skill, care and diligence’ when they used a rescue ‘strop’ that could cause injury by compressing a patient’s chest. As the deceased ‘reached the helicopter, he became “limp and unresponsive” and was “making no apparent attempt to hold on” as he slipped from the strop.’ He fell some 30 metres to his death.
The Australian Transport Safety Bureau (the ATSB) conducted an investigation into the matter (you can read their report, online).
The ATSB found that, due to the compressive nature of the rescue strop around the patient’s chest, combined with the patient’s weight and pre-existing medical conditions, the patient probably lost consciousness during the winch operation. While the rescue strop was serviceable at the time, it was not suitable for the patient and contributed to them falling from the strop following their loss of consciousness.
The ATSB also identified that the operator and Air Ambulance Victoria had limited documented guidance to assist rescue personnel select the most appropriate winching rescue equipment.
I would not consider this a controversial law suit. This is not a case where paramedics are being sued for not achieving a good outcome even though they administered proper treatment nor being sued for not following all the protocols because of the particular danger of the situation (which is not to say those cases happen, but they would be controversial if they did and they are the sort of cases paramedics appear to worry about). Further, and as one would expect it’s not the paramedics being sued at all, it’s Ambulance Victoria and it’s over the use and choice of equipment, in this case the rescue strop.
In the context of the emergency services, ambulance services do owe a duty of care to their patients, in fact such a duty would be axiomatic, it would be hard to find a closer relationship where the conduct of the defendant (ambulance) would affect a foreseeable person (the patient) and therefore there is a need to act with ‘reasonable care’ (see also Kent v Griffiths [2001] QB 36). In the context of the emergency services it has been said that the fire brigades do not owe a duty of care to individuals other than a duty not to make the situation worse (Capital and Counties v Hampshire Council [1997] QB 2004). Even if that were the rule here, the plaintiff may well argue that her husband, given his injury was a fractured ankle, would in fact been better off if Ambulance Victoria had never appeared on the scene!
It would be my view, given that I have very limited information about the matter, that the plaintiff would have little difficult establishing that ambulance Victoria owed her husband the relevant duty of care. The issue, should the case go to trial rather than settle out of court, would be whether or not there was negligence.
It will no doubt be open for Ambulance Victoria’s insurers to argue that the choice of the strop was ‘reasonable’ in the circumstances and given the state of knowledge at the time. Following its investigation,
The ATSB advises helicopter emergency medical service and other operators carrying out winching operations to note the circumstances of this accident and consider the implications for their operations of the risk of patients or other persons being winched slipping out of a rescue/retrieval strop. In this context the size, weight and medical condition of the person(s) being winched may indicate that other recovery options offer reduced risk.
Before this accident, ‘the circumstances of this accident’ were not something Ambulance Victoria or any other operator could ‘note’ or consider. If it was this accident that revealed the problems with this piece of equipment such that it would be negligent to keep using the equipment now, it does not follow that the use of the equipment was negligent at the time of this accident. An argument along those lines would require relevant expert evidence as to the industry’s state of knowledge, and what should have been known, at the time. Such an argument would be akin to the argument in Ambulance Service of NSW v Worley [2006] NSWCA 102 where the issue was the use of adrenaline IV. The adverse outcome for Mr Neal was part of the evidence that brought about a change to IM administration, but it was not negligent to administer adrenaline IV to Mr Neal because, at the time, the evidence of the best route was inconclusive.
Any other defence would depend on claims and evidence that, given I’m relying on a newspaper report, I am not aware of.
What I think is unfortunate is the plaintiff’s lawyer saying “The Davis family hopes lessons can be learned from Robert’s untimely death to prevent any other family having to endure such grief,”’ If there are lessons to be learned they’ve no doubt been identified by the ATSB which has issued appropriate safety warnings to helicopter operators. Lawyers make these claims to paint their client in a light that is favourable to the media and the public. That this is required is also a tragedy. Mrs Davis has no doubt suffered terrible, inconsolable losses and my sympathy goes to her. If those losses were caused by the negligence of Ambulance Victoria she is entitled to the remedies that the law provides, inadequate as they will be. There should be no need to apologise for that. But if she thinks, or her lawyers have advised her, that the motivation for litigation is to identify lessons ‘to prevent any other family having to endure such grief’ then they are, in my view, likely to be disappointed. Remember too that most cases settle out of court and if they do there are no admissions and no identified lessons (see also Settlement in Black Saturday litigation is approved (December 23, 2014)).
Finally let me acknowledge and remember the tragic outcome here that this theoretical and analytical post can hide. A man suffered an injury and looked to Ambulance Victoria for assistance. He fell to his death, his widow has lost her husband with all the emotional hurt that brings. The financial losses, which are all a court can compensate, will pale when compared to that loss, but money is the only remedy a court can give and if the facts and the law say she’s entitled to money compensation that will be paid. Let us not forget, too, the other victims of this event, the paramedics and pilots involved who set out to provide care and comfort but who witnessed this man’s death and now have to live with those consequences.
Australian Emergency Law 
This is tragic on so many fronts- the family and the crew.
The crew must have been absolutely soul destroyed after the incident. No one expects to go into a rescue and have a patient die in such circumstances.
Michael,
Well argued. I, too, feel that opportunistic financial windfall potentially available following the loss of the partner in this case, should not be the basis on which the legal process is engaged.
My mind went straight away to the size of the patient, and did this contribute to the loss of consciousness, possibly combined with shock from the injury.
I also really appreciated your last sentence about the psychological impact on the ambulance officers who undertook the recovery. I fear for them and the lasting effect this will have on them. The whole case also underscores the fragility of using aviation – and in particular rotary wing retrieval – in emergency response. It is marvellous when it works, but is fraught with big risk – gravity. It is subtle, mostly controlled but ever-present.
Andrew N
Andrew Nicholls | Community Protection Planning & Neighbourhood Safer Places Officer | Planning & Environment Service Centre-South
NSW RURAL FIRE SERVICE
Andrew, the plaintiff here is not seeking an ‘opportunistic financial windfall’. That is inappropriate language when you consider her losses, and the limits that exist on ‘compensation to relatives’ claims. The belief that suing leads to some massive financial gain is an urban myth and no doubt the plaintiff’s financial losses will far exceed any amount that can be recovered and that of course doesn’t touch on the fact that money can’t make good the actual losses.
My point, however, was that people shouldn’t believe that suing is about anything other than the money. Courts can award nothing other than money, they can’t undo the harm nor do they really hold the defendant to ‘account’. Cases settle for all sorts of reasons and without admission of liability. My argument was meant to be that I wish people could say ‘I’m suing for the money, because there are losses and this is the process that we have to go through to make good those claims’. The (erroneous) belief that litigation leads to an ‘opportunistic financial windfall’ is why people say they’re suing in the hope that others will avoid such pain and despair – so they don’t appear to be seeking an ‘opportunistic financial windfall’. A better understanding of law would avoid both the claims that the plaintiff is seeking some windfall and claims that there is something other than money involved. Plaintiff’s may want to see ‘lessons learned’ but agencies like the ATSB, rather than litigation, are more effective in achieving that goal.
As for the size of the patient, Ambulance Victoria knew that before they tried to lift him to safety so if that was relevant it was a matter that they had to take into account. The ATSB said “the size, weight and medical condition of the person(s) being winched may indicate that other recovery options offer reduced risk.” An ambulance service can’t just assume that everyone fits a particular or average size and say ‘it’s tough luck if you don’t’.
Michael – I would normally click LIKE to acknowledge your detailed analysis of events within your post but the term seems so inappropriate after a tragedy like this has taken place.
My thoughts are with both the family and the crew members.