Tom Kiat, Industrial officer with the Australian Paramedics Association NSW wrote to me and said:
Following your post on 27 Oct 2020 regarding NSWA settling a negligence case against it, I thought it would interesting to find out more about how many neg cases NSWA is defending each year.
I made an informal GIPA application, see outcome attached. Total of 50 cases filed in last 3 years.
The post he was referring to was Negligence case against NSW Ambulance settles (October 27, 2020). In that post I said:
I have previously talked about accessing the result of court cases – see Accessing a judge or magistrate’s reasons for decision (November 18, 2016). That post discusses finding a result when a judge rules on a matter. Usually when a case settles out of court (and most do) there is nothing to find and we cannot know that the case existed let alone what the outcome is…
In the days of the internet we can identify many more cases that we could when I started law school back in 1983. In those days only important judicial decisions were reported in printed, bound law reports. Today nearly every judicial decision is published online. It means that we can be reasonably confident that seven will represent the majority if not all the relevant claims. If there were others where a judge had to make a ruling, even on procedural or evidentiary matters but the case settled (which is the case with St. John Ambulance Australia (NT) v Stuart) or a case like McElhinney where the judge has to approve the settlement, we are likely to know about it.
The response to Tom’s request for information is attached (and I publish it with Tom’s permission). See
The question Tom asked was:
“How many claims have been filed suing NSW Ambulance as the Defendant or joint Defendant, based on the alleged negligence of NSW Ambulance employees in the performance of their clinical duties, in each of the last 3 financial years i.e. FYs 2018, 2019 and 2020.”
The answer is:
That is surprising and given what I wrote, above, much more than I would have expected. What surprises me is how few of those cases have got before a judge in order to produce some judgment that would have been identified. Either the plaintiffs have decided not to proceed with the claim, or the claims have settled without reference to a court. Settlement may either be in favour of the plaintiff or the defendant and we cannot infer how any of these cases may have settled. Some will no doubt still be in the process of being resolved. We know how long cases take to get before a court so some may still be working their way through the process and will appear before a judge sometime in the future.
Regardless of where the cases have gone, it is certainly evidence that there have been many more cases that at least alleged negligence than I imagined.
Dear Michael, I am actually surprised NSW Ambulance has had so few cases lodged against it. The small number of publicly discussed negligence claims are a tiny fraction (1%?) of the number settled out of court. I’m sure, in part at least, that this is due to the high level of respect the community has for NSW Ambulance, despite the criticism NSW Ambulance receives (as an example, the death of Michael Wilson in 2013). Sadly, Australia is heading towards another round of tort reform.
Barry, I’m not sure about your comment that ‘The small number of publicly discussed negligence claims are a tiny fraction (1%?) of the number settled out of court…’ That’s the point of the post and Tom’s letter. I identified seven cases. Ambulance identifies 50 cases in the last three years. That would mean the publicly discussed cases are 7/50 = 14% of the total cases. The cases identified by ambulance are not the publicly discussed cases but the ones that have been commenced but not resolved by a court (or at least not yet resolved by a court). I’m not sure but if your suggesting there’s more than the 50 identified here I’d be interested to know the basis for that claim.
I think the point here is that there may have been 50 CLAIMS made but not 50 cases that have FOUND negligence. I think it is surprisingly small number given ASNSW has over 1 million patient contacts a year. I and other legal academics have suggested this is, in part, because of tort reform that occurred as a result of AMA and Insurance company lobbying in (or around) 2002 that has made it more difficult to successfully litigate. I would be interested to know why Barry thinks there may be more reform on the way.