December 2017


Ambulance driver cleared of crash negligence

By John Reynolds and Kate Tilley, KT Journalism

A NSW woman who crashed into an ambulance as it drove through a red light while responding to an emergency has failed to prove the ambulance driver was negligent.

In a 2:1 judgement, the NSW Appeal Court found the ambulance driver, Megan Riches, had acted reasonably and with care when she entered the intersection with the vehicle's emergency lights and siren activated.

Justice Monika Schmidt and Acting Justice Arthur Emmett found Ms Riches was not negligent when she chose to enter the intersection against a red light. It was not reasonable to expect her to take another course to avoid the intersection or wait for a green light.

In a dissenting judgement, Justice Robert Macfarlan found Ms Riches and the other driver, Cherry Logar, equally responsible for the crash. He said Ms Logar "failed to exercise reasonable care and was contributorily negligent. I assess the parties' responsibility for the accident as 50% each".

The Appeal Court heard Ms Logar, who was pregnant with twins at the time, was injured when her car and the ambulance collided at the intersection of Castlereagh Road and High Street, also known as the Great Western Highway, at Penrith, on 3 June 2011. Ms Logar said she did not see or hear the emergency lights or sirens and struck the ambulance as she drove through on a green light.

She sued the NSW Ambulance Service (NAS), arguing Ms Riches breached her duty of care to other drivers and sped dangerously through the intersection. She argued Ms Riches should have taken an alternative course to avoid a collision.

NAS argued Ms Riches was responding to a second-level emergency involving an unconscious patient with breathing difficulties. It said Ms Riches, who had 29 years' experience as an ambulance driver and no prior accidents, had followed regulations; was travelling at only a few km/h; and proceeded as each lane of traffic stopped for her vehicle.

It argued Ms Riches could not have known Ms Logar would ignore other vehicles that had stopped and cross into the ambulance's path.

On 26 October 2016, District Court Judge Phillip Taylor had found Ms Riches had not breached her duty of care and had acted reasonably "in the circumstances". Ms Riches had two independent witnesses, who were in a stationary vehicle waiting to make a turn, who supported her version of the crash.

Ms Logar appealed against Judge Taylor's decision. On 25 October, Justice Schmidt, with whom AJ Emmett agreed, found a "reasonable person" would not have traversed the intersection any differently to Ms Riches.

Justice Schmidt said Ms Riches had to take into account many conditions that day, including heavy traffic and the emergency to which she was responding. "Travelling further south to enter the intersection [as Ms Logar suggested], would have required the ambulance to travel across more lanes of traffic, increasing the risk of a collision."

She said Ms Riches was required to not only consider other road users' safety but also her "burden [of] social utility", that is, the condition of the patient who was the focus of the original emergency.

Justice Schmidt said both drivers' credibility was an issue because Ms Logar alleged Ms Riches had fabricated aspects of her evidence and Ms Logar was cross-examined about the truth of aspects of her evidence.

"Other factual matters in issue included which lane Ms Logar was driving in when the collision occurred; which vehicle had struck the other; what other options had been available to Ms Riches when she entered the intersection; and what Ms Riches had said, if anything, about how the collision came to occur," Justice Schmidt said.

However, on appeal, Judge Taylor's conclusions the ambulance lights and sirens had been activated; Ms Logar had not been travelling in lane 2, as was her evidence, but in lane 1, as was Ms Riches' evidence; Ms Logar struck the ambulance; and Ms Riches had not said things Ms Logar claimed she had said, were not challenged.

All three judges agreed Judge Taylor did not err in failing to make a finding on the actual speed at which the ambulance proceeded through the intersection. Nor did he err in failing to define the risk of injury to which Ms Logar was exposed or in failing to deal with all the evidence about the ambulance's path through the intersection.

But only Justice Schmidt and AJ Emmett agreed Judge Taylor did not err in accepting Ms Riches' evidence and finding the ambulance was driven slowly and carefully through the intersection.

Justice Macfarlan found the emergency was not serious enough to warrant Ms Riches entering Ms Logar's lane without a better view of the road. He said Ms Riches admitted many people ignored emergency vehicles' warnings and that knowledge should have made her more wary.

"The caution with which she entered and traversed the intersection confirms a lack of confidence her lights and siren would give adequate notice of her ambulance's presence to other drivers," Justice Macfarlan said.

"She had no reasonable basis for concluding no vehicle would travel [through the intersection] and collide with her ambulance."

He said Ms Riches gave evidence that, notwithstanding the medical emergency, she stopped her ambulance before and after entering the intersection, waiting 10 seconds each time before proceeding.

"She stated 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," Justice Macfarlan said.

The court ordered Ms Logar to pay NAS's costs.

Logar v Ambulance Service of NSW Sydney Region [2017], NSWCA 274, 25/10/2017

Logar v Ambulance Service of NSW [2016] NSWDC 225, 14/10/2016

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