Just on one year ago I reported on the decision by Judge Taylor of the NSW District Court on a case involving an ambulance accident – see No liability for NSW Ambulance accident (October 19, 2016). The matter went to the NSW Court of Appeal. The court has now handed down a decision upholding the finding that there had been no negligence – Logar v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274 (25 October 2017).

If you look at the diagram in the original post you can see where the collision occurred. The gist of the issue is that crossing lanes 2, 3 and 4 the driver of the ambulance was passing in front of stationary traffic. Should she have stopped, before entering lane 1, to make sure that traffic had stopped in that lane too? Or as Justice Schmidt asked (at [51]):

… whether it is reasonable for an ambulance on an emergency call of some significance, to stick its nose out into a lane of traffic, when what was in the lane could not be seen and there was a risk that a car may be coming down that lane, which does not have sufficient time to avoid a collision[?].

Justice Schmidt

Justice Schmidt said (at [92]) that the driver of the ambulance had a duty ‘… to take reasonable care in the circumstances. It was not to avoid any risk of collision with a vehicle in lane 1, at any cost.’  In making a decision to enter lane 1, Ms Riches, the driver of the ambulance, had to consider both the risk of collision and the risk to the patient that she was proceeding to.   Justice Schmidt said (at [167]-[169]):

Ms Riches evidence that she had proceeded, because of her duty to respond to the emergency she had been assigned, was not challenged. The emergency involved a person lying unconscious in the gutter, who had stopped breathing. There is no question that this person required her urgent assistance.

Ms Riches had to take that into account, when making her decision about how and when to traverse lane 1, together with the possibility of someone driving in that lane, oblivious not only to the ambulance’s lights and sirens, but also to the other traffic stopped in the intersection and thus not stopping in order to allow her to cross the lane safely. Ms Riches had to take into account the consequences of the delay involved in her waiting until she could be certain that there was no risk raised by nudging into lane 1 – not only the risk of other cars which had stopped, beginning to move again and the consequences of further delay which would be borne by the injured person who required her assistance.

When Ms Riches proceeded into lane 1 there was, undoubtedly, then a possibility that such a driver would be unable either to stop, or avoid the nose of the ambulance, if it was nudged into that lane, as she decided to do. In all of the circumstances, however, Ms Riches was not negligent when she concluded, that this possibility was sufficiently low for reasonable caution to permit her to proceed, given that the intersection was otherwise at a standstill, before she entered lane 1.

As for Mrs Logar, the driver of the car that collided with the ambulance, Justice Schmidt said (at [170]-[175]):

[Her] evidence was that she had sped up to some 55 kph, before she entered the intersection, not having observed any vehicles stopped at the intersection, or heard or seen the ambulance, its lights or sirens. On her own evidence [she] was entirely oblivious to what was happening at the intersection, before she struck the ambulance.

It was argued on appeal that it was demanding too high a level of vigilance of an ordinary road user to make assumptions that a stationary vehicle in a straight through lane with a green light, meant that there was something happening in the intersection, which was going to present a risk of harm to the road user.

This may not be accepted.

The obligation to keep a proper lookout… includes when driving on main roads in busy traffic, paying close attention not only to the behaviour of other vehicles, but also to the character and speed of the driver’s own driving, in relation to other vehicles, as appropriate to the traffic conditions.

Mrs Logar was thus obliged that day to respond to what was there to be seen and heard at the intersection. That included the cars which had stopped in response to the ambulance, which had its lights and sirens activated, as well as the ambulance itself, when it nudged into lane 1. It was also relevant for the primary judge to take into account that all the other drivers stopped at the intersection were able to meet their obligations, including what the Road Rules required, stopping to allow the ambulance to traverse the intersection.

As Mrs Logar herself properly accepted in cross-examination, had she kept a proper lookout she should have noticed not only the ambulance’s sirens and flashing lights, but also that there were other vehicles which had stopped in Castlereagh Road, despite the green lights.

Justice Schmidt was of the view that the trial judge had made no errors in his assessment of the law or the application of the law to the facts of the case. Mrs Logar had not proved that there was negligence by the driver of the ambulance and her case was lost.

Justice Emmett

Justice Emmett agreed with Justice Schmidt.  With respect to the question of whether it was negligent to enter lane 1 without first ensuring that traffic in that lane had stopped, he said at [29]:

… I consider that, having regard to the medical emergency to which Ms Riches was responding, her actions in proceeding slowly through the intersection against the red light, with her siren sounding and her lights flashing, having already stopped twice, justified her action in proceeding into the kerb side lane notwithstanding that she could not be completely certain that another vehicle might not be proceeding in that lane at a speed almost equal to the limit in circumstances where the vehicles in the other three lanes were stationary despite there being a green light in their favour.

Justice Macfarlan

Justice Macfarlan dissented (ie he came to a different view). He said (at [3]-[5]):

Ms Riches moved her ambulance across part of Lane 1 not knowing whether any vehicles were travelling in this lane beyond the 25 metres of it that she could see. The applicable speed limit was 60 kph and, the Court was informed, a car travelling at 50 kph travels 15 metres per second. As a result, that Ms Riches was able to see 25 metres along Lane 1 clearly did not entitle her to regard the risk of her ambulance colliding with a vehicle travelling in that lane as non-existent or low.

The fact that her ambulance’s lights and siren were on could reasonably have given Ms Riches some comfort in this respect. Nonetheless, such comfort could only have been limited in light of her evidence that, in the general experience of ambulance officers, ambulance lights and sirens are frequently ignored by members of the public. The caution with which, on her evidence, she entered and commenced to traverse the intersection (before reaching Lane 1) confirms a lack of confidence on her part that her lights and siren would give adequate notice of her ambulance’s presence to other drivers approaching the intersection.

Furthermore, I do not consider that the evidence indicated that the medical emergency to which Ms Riches was responding was of such a level as to warrant her proceeding across part of a lane of traffic whilst unable to determine whether a vehicle was travelling down it at speed. In this respect it is relevant that Ms Riches gave evidence that, notwithstanding the medical emergency, she stopped her ambulance both before the intersection and after she had entered it, in each case waiting 10 seconds before proceeding. Further, she stated that she would never put the medical interests of a patient above her own safety. This is understandable, not only from her point of view, but also from that of patients. A patient’s interest in being collected by an ambulance is hardly likely to be advanced by putting the ambulance at risk of a calamitous collision in an attempt to arrive at the collection point a few moments earlier.

Even though she appreciated that there was still a risk of collision, Ms Riches proceeded into lane 1 and (see [[7]) ‘When she did, she had no reasonable basis for concluding that no vehicle would travel down the lane and collide with her ambulance, as her line of vision was obstructed.’  On that basis, Justice Macfarlan took the view that her conduct failed the test of the ‘reasonable person’. He said (at [8]) that Ms Riches

… should have continued to wait until the risk of collision was removed, or at least substantially reduced. This would have occurred within a short period when the traffic lights changed to give Ms Riches a green light, and therefore cars in Lane 1 a red light. It may have occurred even earlier if a vehicle travelling down Lane 1 stopped at its head because its driver noticed the ambulance siren or lights, or saw a vehicle stopped in Lane 2.

As noted above, he did not think the nature of the medical emergency warranted the risk of a collision that would, and did, stop Ms Riches arriving to assist the patient.

As for Mrs Logar’s negligence, he said (at [10]-[11]):

The primary judge’s finding that Mrs Logar was contributorily negligent in not hearing the ambulance’s siren should be upheld. It is difficult to understand why Mrs Logar did not hear it. Undoubtedly it was on and Mrs Logar conceded, based on her experience of hearing other sirens, that she would (or at least, should) have heard the siren if it was on. That leads to a conclusion that Mrs Logar must have been in some way distracted, or was simply not paying attention.

Mrs Logar was also contributorily negligent because she should have noticed that the tall van in Lane 2 was stationary, notwithstanding that it had the benefit of a green light. Mrs Logar was familiar with the road and should have known that Lane 2 was for vehicles passing straight through the intersection. In any event, it would have been obvious to her that three out of the four lanes in the direction she was travelling would not have been right turn lanes, and that at least two would have been straight through lanes. She should therefore have been alert to the possibility of a problem in the intersection and should have slowed sufficiently on her approach to enable her to stop her vehicle level with, or before, the van in Lane 2, if that proved necessary.

Justice Macfarlan would have found the drivers at fault on a 50:50 basis (see [2]).

The outcome

It had been determined that had Mrs Logar been able to prove her case, damages of $867,735 would have been awarded.  In Justice Macfarlan’s opinion, Ms Riches had been negligent but so too had Mrs Logar.  If his opinion had been accepted, Mrs Logar would have received $867,735 reduced by 50% to reflect her contributory negligence, so she would have received $433,867.50.

Justices Schmidt and Emmett however were of the view that Ms Riches, the driver of the ambulance had not been negligent and the appellant, Mrs Logar, had not shown that the trial judge had made any errors in the way the original trial was run. As these matters are determined by the majority, their views were reflected in the orders of the court and Mrs Logar therefore received nothing.

(For a media report on this case, see Georgina Mitchell ‘Driver hurt in collision with ambulance loses negligence appeal‘ Sydney Morning Herald (Online) October 25 2017)).