On 14 October 2016, Judge Taylor of the District Court of NSW handed down a decision in Logar v Ambulance Service of New South Wales Sydney Region  NSWDC 255 (and thank you Bill Madden, solicitor with Slater and Gordon for bringing this to my attention). The case deals with an accident that occurred in June 2011 when the plaintiff entered an intersection with a green light and collided with an ambulance that was responding to an emergency.
The case does not set a significant precedent, as I’ll explain below, but it is still of interest. The facts are that the plaintiff was travelling in lane 2 of a four lane road in Penrith. The two lanes on her right (lanes 3 and 4) were dedicated right hand turn lanes, and the traffic in those lanes was facing a red arrow and so the cars there were all stopped. The plaintiff had a green light in her favour and entered the intersection at 55km/h. As she entered the intersection she collided with the ambulance. The plaintiff claimed that her window was open about 10cm and she had no radio on. She did not hear any siren or see any flashing warning beacons.
The driver of the ambulance gave evidence that she was proceeding to a category ‘1B emergency’ (the judge said (at ) “This is an ambulance code indicating that the assignment involves an unconscious patient with breathing difficulties. It is the second highest level of emergency.”) She said that the lights and siren were activated from about 500m before she entered the intersection. She said the traffic in front of her was stopped at red lights so she moved into the most left hand lane which was a bus lane. She came to a stop at the red light and waited until traffic on her right had stopped. She then entered the intersection and stopped in front of the vehicles that were stopped at the red turning arrow. She continued across the intersection, passed a stopped vehicle in lane 2, entered lane 1 and the collision occurred. My interpretation of the accident (as described by the paramedic) is shown below. (The ambulance is represented by the red rectangle):
Putting aside the poor quality of the diagram, that shows some key differences. In particular the plaintiff said she was in lane 2 and there was no-one in front of her. The driver of the ambulance said that she passed a stationary vehicle in lane 2 and the collision occurred as she entered lane 1. The judge found (at ) that ‘Either [the Plaintiff] was always in lane 1, or she changed into lane 1 moving past the car or cars in lane 2 as she travelled towards the intersection’.
This case is not really a precedent because it turned on the facts, not the law. The question was who was given the correct version of events. The paramedic was supported by two independent witnesses who had been in a vehicle in lane 3. They confirmed that the lights and sirens of the ambulance were activated and that there was indeed a stationary vehicle in lane 2. In the circumstances the judge preferred the evidence of the paramedic and the two independent witnesses, which is not to say the plaintiff was lying, just that her recollection was wrong. The judge found (at ) that the paramedic ‘proceeded slowly and cautiously through a red light at a controlled intersection while having to deal with a high level emergency.’
The first allegation of negligence was a claim that the driver of the ambulance was negligent because she entered the intersection against a red light and without her warning devices activated. The judge found that the warning devices were activated so that claim failed.
An alternative claim was that the driver was negligent for proceeding into lane 1 when her view was necessarily obstructed so she should have moved more onto the south side of the intersection to get a better view. The court rejected that argument too. Judge Taylor said that to move to the south would only have made a marginal difference and would have increased the risk of collision because the ambulance would have ‘interfered’ with more traffic; basically it would have been a more complex manoeuvre.
The judge did consider the issues set out in the Civil Liability Act 2002 (NSW) regarding steps a reasonable person should take in the face of a risk. There is clearly a risk of collision when entering an intersection, more so when proceeding against a red light and when ‘responding’ to an emergency. The judge found that the ambulance moved slowly into lane 1 so that there was an opportunity for other drivers to see the ambulance and avoid it; other precautions (such as not proceeding but ‘precautions resulting in delay would burden the injured or ill person to whom the ambulance was travelling to assist. The final consideration in s 5B(2)(d), the social utility of urgent and speedy responses by ambulances, is readily apparent.’ At - the judge said:
… the real question is whether Ms Riches [the paramedic] should have avoided the risk of harm and remained stationary, not putting the nose of her vehicle into lane 1 until such time as either a car in lane 1 had pulled up at the intersection (which would preclude any car from proceeding into the intersection from that lane) or until the lights had changed so that she could proceed through on a green light … whilst either of those options would have been preferable in ordinary circumstances, this was an emergency situation. It did not, I think, allow Ms Riches the option of waiting for the lights to change or the lane to block. As much as she was able she checked for movement in the lane and she edged out the nose of her vehicle partly across the lane. That conduct resulted in the collision of the front corner of both vehicles when Mrs Logar, who increased her speed to near the speed limit, failed to notice the ambulance’s lights or siren, failed to notice the surrounding stationary vehicles, and who perhaps changed lanes as she passed stationary vehicles to enter the intersection.
In my view, the action Ms Riches took was a reasonable course to take bearing in mind the emergency situation she faced and which might gravely worsen if she had made no attempt to cross the final lane of traffic.
For these reasons, I do not accept that Ms Riches’ conduct was negligent.
As I said this case turned on the facts, not the law. The law requires that a drive exercise reasonable care. The judge found that paramedic Riches did exercise reasonable care in the way that she drove the ambulance and proceeded across the intersection. In that case there was no liability.
The judge did go through the process of calculating the amount of damages he would have awarded, just in case there is an appeal. He came to the conclusion that if the ambulance service was liable, the plaintiff would have been entitled to damages of $347,094.
The choice of defendant
One thing to note, given everyone’s concern about getting sued, is the defendant. The defendant was not Paramedic Riches. No-one was suing her; they were suing the Ambulance Service of NSW. No doubt the case was actually being run by their insurer, probably the NSW Self Insurance Corporation (NSW Self Insurance Corporation Act 2004 (NSW)). Legal actions are not taken in the name of the insurer but in the name of the vehicle owner (Motor Accidents Compensation Act 1999 (NSW) ss 112 and 113). So the defendant was the Ambulance Service but any damages would be paid out of the NSW Self Insurance Fund. The driver was never at risk of being personally sued or liable, and that was not because the Ambulance Service believed her, it’s because that is the law.
Good article Michael. Some sobering thoughts
Micahel, I’m aware of drivers (VICSES) being charged for incidents involving running red lights- One I know of in particular was charged for exactly that after being involved in a collision.
Whilst I know a charge by Police is not suing, how does that stand? Does that counter anything in the Courts because Police believe it to be one way and the Courts the other? (Does that make sense?)
Luke, you’re right being charged is not the same as being sued. As we know the exemption from the traffic rules requires that the driver is taking reasonable care. If there is an accident then at least prima facie there has not been reasonable care. The police however only make an allegation; it’s up to a court, should the defendant take it to court, to determine if there was negligence. If the police believe the driver was negligent, and the court does not, then the accused is “not guilty” – see ROAD TRAFFIC EXEMPTION – WHO DETERMINES IF IT IS REASONABLE THAT THE PROVISION SHOULD NOT APPLY? (May 22, 2016)