Logar v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274

Schmidt J (Macfarlan JA and Emmett AJA agreeing) held that the primary judge did not err in failing to make a finding as to the actual speed at which the ambulance proceeded through the intersection. Nor did the primary judge err in failing to define the risk of injury to which Mrs Logar was exposed, or in failing to deal with all of the evidence as to the ambulance’s path through the intersection.

[1] (Macfarlan JA); [28] (Emmett AJA); [77]-[88], [95]-[162] (Schmidt J).

Schmidt J (Emmett AJA agreeing) held that the primary judge did not err in accepting Ms Riches’ evidence and finding that the ambulance was driven slowly and carefully through the intersection.

[29] (Emmett AJA); [88], [95]-[162] (Schmidt J).

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31; Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679; [2016] HCA 22 applied.

As to issue (ii)

Schmidt J (Emmett AJA agreeing) held that there was no error in the primary judge’s finding that Ms Riches did not breach her duty of care to Mrs Logar. It was open to the primary judge to find that Ms Riches took reasonable care in the circumstances; to find that that there was no safer alternative which a reasonable person in Ms Riches’ position would have pursued; to find that the options Ms Riches pursued at the intersection were preferable in the emergency situation in which she was involved; and to consider the social utility of Ms Riches’ activity.

[29]-[31] (Emmett AJA); [89]-[181] (Schmidt J).

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48; Verryt v Schoupp [2015] NSWCA 128; Marien v Gardiner; Marien v H J Heinz Company Australia Ltd (2013) 66 MVR 1; [2013] NSWCA 396; Thornton v Sweeney (2011) 59 MVR 155; [2011] NSWCA 244; Waverley Council v Ferreira (2005) Aust Torts Reports 81-81; [2005] NSWCA 418 applied.

In dissent, Macfarlan JA held that Ms Riches did not act with reasonable care in driving the ambulance across part of a lane of traffic whilst unable to determine whether a vehicle was travelling down it at speed. Ms Riches gave evidence that ambulance lights and sirens are frequently ignored, and the evidence did not indicate that the medical emergency to which she was responding was of such a level as to warrant her proceeding into the lane.

[2]-[9] (Macfarlan JA).

As to issue (iii)

As Schmidt J and Emmett AJA did not find that Ms Riches breached her duty of care, this issue did not need to be considered.

In dissent, Macfarlan JA held that the primary judge’s contingent assessment of Mrs Logar’s contributory negligence at 60% did not restrict the Court in its view as to apportionment. His Honour then assessed the parties’ responsibility for the accident as 50% each.

[10]-[13] (Macfarlan JA).