At the start of my last post, State of Queensland Liable for Paramedic Negligence (December 22, 2016) I said I was aware of two other cases involving allegations of negligence by a paramedic and/or ambulance service.  I listed them as Ambulance Service of NSW v Worley [2006] NSWCA 102 and Neal v Ambulance Service of New South Wales [2008] NSWCA 346).    I confess I had forgotten another, earlier case, Keller v Metropolitan Ambulance Service and the State of Victoria [2002] VSC 222.  I look back and see I’ve not previously written on this case (which occurred before I started writing this blog) but I’ll do it now as it makes for some interesting holiday reading.

What happened

On 21 September 1994 the plaintiff attempted to rob a taxi driver.  The driver, acting in self-defence hit the assailant around the head with a piece of wood.   The judge said (at [2]):

As a result of the incident, the plaintiff was allegedly rendered unconscious and suffered intercranial bleeding. Shortly after the incident, ambulance officers attended the scene and examined the plaintiff. Police officers took the plaintiff into custody, placed him in a divisional van and then in the cells at the Moorabbin Police Station. After being in custody for several hours, the plaintiff was taken by ambulance to hospital where he received emergency treatment. As a consequence of the custody and the alleged failure to receive timely treatment, the plaintiff’s initial injury was severely aggravated and the plaintiff suffered further injury, loss and damage, including brain damage, loss of cognitive function, impairment of motor function, speech, memory and concentration, epilepsy, psychological suffering, anxiety, depression, nervous shock, a total loss of earning capacity and medical expenses., causing head injuries.

The plaintiff sued both the Metropolitan Ambulance Service and the Victoria Police for negligence in the way he was treated.  The plaintiff’s case was settled for $550 000.

So why was it in court?

It was in court because the Metropolitan Ambulance Service (as it then was) and Victoria Police were arguing over which agency should pay – that is (at [5]): ‘Each defendant now contends that the plaintiff’s injuries were solely caused by the other defendant and that it is therefore entitled to a complete indemnity from the other defendant, alternatively each seeks contribution on the basis that the other bore the prime responsibility for the plaintiff’s further injuries.’  So the police blamed the ambulance, and the ambulance blamed the police.

Police were called to the scene at about 7.25pm.  The ambulance arrived at 7.36pm. When the ambulance arrived, ambulance officer Harries was given a briefing by Constable Toogood who had placed the plaintiff under arrest.   The details recorded in the ambulance case sheet were incomplete. The judge said (at [30], [38]-[39])

Harries did not record that the plaintiff had been hit about the head. His record is also inconsistent with evidence from others in a number of significant respects. For example, it is inconsistent with [Constable] Toogood’s evidence as to what he told Harries about the plaintiff being rendered unconscious…

After examining the plaintiff, Harries told the police that it was okay to take the plaintiff into custody and that he did not require any further medical treatment and was fit to remain in custody. The ambulance then left.

All of the police officers that testified emphasised that they had relied upon the advice of the ambulance officer that the plaintiff did not need medical treatment and was fit to remain in police custody

The plaintiff was taken to the police station at 8.47pm about an hour after the ambulance left.  An ambulance was again called at 11.20pm.  During those 2 ½ hours police observed that the plaintiff (at [40]-[47]):

  • was unsteady and could not walk unsupported;
  • defecated – twice;
  • was asked to remove his clothes but he looked blankly at Toogood and another policeman who then removed his clothes for him;
  • Was observed in a “coma position” lying on the floor;
  • did not reply when spoken too;
  • was checked every 10 minutes or so and was noted to be “asleep” and breathing loudly and had not moved his position.

At 11pm the police surgeon, Dr O’Dell arrived and found the plaintiff (at [47]-[48]):

… to be deeply unconscious (ie. unrousable) with slow breathing and pulse and a large area of swelling on one side of his face (in fact, it was the left side). His eyes were of real concern: one eye was fixed and dilated and the other one was a pinpoint, indicating to the doctor some disturbance in the head, such as a blood clot, exerting pressure – he was in a very serious condition. Dr O’Dell ordered an ambulance as soon as possible.

At 11.20 pm the same ambulance arrived. In due course the plaintiff was taken in the ambulance to the Alfred Hospital. At the hospital the plaintiff was found to be suffering from a fractured skull on the left side and, on the same side, an acute extradural haematoma, which caused the brain damage and injuries in respect of which he subsequently sued.

The judge agreed that the ambulance officers had been negligent.  He said (at [53]-[55]):

The very short time during which the ambulance officers were present has already been mentioned. As I have said, the total time spent by them at the scene was about six minutes. They arrived to find an alleged offender in police custody and quite possibly under the influence of alcohol or drugs. I consider that Harries approached the task with undue haste and with the presumption, provided no serious head injury was found, that the handcuffed offender should remain in police custody.

Harries may have failed to pay sufficient attention to what he was being told by Toogood. More significantly, having been told that the plaintiff had been hit about the head, I find that Harries negligently failed to make adequate or sufficient inquiries of the police or of Tuala about the plaintiff’s conscious state immediately after the blow or blows to the head. Instead it appears that he negligently relied on a report from some unidentified bystander. If Harries had ascertained, as he should have, that the plaintiff had lost consciousness for a short time, it is clear that the only appropriate decision would have been to take him to hospital.

However even given his assumption that the plaintiff had not lost consciousness, there were factors present which, I am satisfied, ought to have led Harries to decide that the plaintiff had to go to hospital. In the context of having been struck on the head, the plaintiff’s inability to answer simple questions and his unresponsive answers (together with his inability to stand up) raised a real question of impaired consciousness, as Harries conceded in his evidence. In my opinion, Harries was negligent in all the circumstances when he decided that the plaintiff did not need to go to hospital and when he advised the police that the plaintiff was fit to remain in police custody.

The police were also negligent (at [57]):

Clearly there were continuing breaches of the Police Operating Procedures in relation to the plaintiff while he was seemingly asleep in the holding cell. As a result of the ambulance officer’s advice, the police did not consider that the plaintiff had any serious head injury, but they did believe that the plaintiff was quite possibly intoxicated or drug affected. In those circumstances, the Police Operating Procedures required the responsible police officers to awaken the plaintiff and obtain a verbal response and if he could not provide a verbal response, medical attention had to be sought immediately. In my opinion, it was negligent of the police on each of the occasions when the plaintiff was noted as being “asleep” in the holding cell not to attempt to rouse the plaintiff and obtain a verbal response. The negligence is accentuated by other features which were present and known to police: the fact that the plaintiff had been hit around the head; the plaintiff’s earlier loss of consciousness; his nose bleeds; his loss of bowel control on two occasions; and his inability to stand or walk without assistance. Further, I think that it was particularly negligent of Gallagher to make no attempt to rouse the plaintiff when he cleaned him up at about 10.10 pm.

His honour thought the responsibility of the ambulance service was greater than that of the police.  He said (at [58] and [64]):

It seems to me that the culpability or blameworthiness of the MAS is perhaps a little greater than that of the police. The ambulance officer, Harries, acted with undue haste, made insufficient inquiries and, in any event, made an inappropriate and imprudent decision on the basis of such observations as were made by him. The police officers were initially reliant upon Harries’ advice. However the police were later involved in a continuous course of negligent conduct, by failing to attempt to rouse the “sleeping” plaintiff, over a period in excess of one hour…

Looking at the conduct of each defendant as a whole and in all the circumstances, I have concluded that, to the extent following, the MAS bears a greater responsibility than the State for the plaintiff’s ultimate injuries. I find that it is just and equitable that the contribution of the MAS should be sixty percent of the settlement sum (and of the State, forty percent) and I assess the amounts of contribution accordingly.

So the MAS had to pay 60% of $550 000 or $330 000; the State of Victoria (on behalf of the police) had to pay 40% or $220 000.   There would also have been costs orders with respect to this case but they were not reported in the decision.

What I find interesting

What I find interesting about this case is that it was allowed to proceed.  Under the Ambulance Services Act 1986 (Vic) as it then was, the Metropolitan Ambulance Service was a ‘body corporate’ ‘capable of suing and being sued’ (s 23(2)).  The ambulance service was ultimately accountable to the Minister through the Victorian Ambulance Board, the Chief General Manager and the Director of Ambulance Services.   The ambulance service may not have been a unit of government so it could sue and be sued in its own name, but it was essentially a government service.

Victoria police were a manifestation of the government hence proceedings against the police were against the State of Victoria.

The irony is therefore that the Minister responsible for the Ambulance service and the Minister responsible for the police service let their agencies take each other to court to publicly blame each other for this unfortunate outcome.    One must assume they were not both covered by the states’ insurer as that would make it even more farcical.  So, presumably there was a commercial insurer covering the ambulance service and today it would be the state managed fund covering police and they took their fight over contribution to the Supreme Court.  I imagine today that the Ministers would tell their respective chief officers to sort it out in private rather than waste resources, and goodwill, fighting the matter in public.

Vicarious liability

We can note, again, that there was no suggestion that either Harries or Toogood or any other ambulance or police officer was personally liable even though, there were ‘continuing breaches’ of relevant protocols and procedures.  Vicarious liability is a legal doctrine, not a sign of goodwill – if an employee is negligent it is the employer who is liable as this case again demonstrates.


As noted this is an old case and the facts and decision do not really advance the law.  I post this discussion to finish off my discussion on cases involving ambulance services in Australia and because I thought readers may be interested, if not amused, by the idea of the then Metropolitan Ambulance Service fighting Victoria Police, in court, over who was to pay for the plaintiff’s injuries.