DEPARTMENT OF HEALTH - NSW AMBULANCE SERVICE v KIRKPATRICK [1997] NSWCA 86

DEPARTMENT OF HEALTH - NSW AMBULANCE SERVICE v KIRKPATRICK

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, SHELLER and COLE JJA 21 November 1997, 21 November 1997 [1997] NSWCA 86

JUDICIAL directions & summing up to jury — whether jury should have been directed to enter a verdict for the defendant — sufficiency of evidence for jury to conclude issues of reasonable care for plaintiff's safety — whether trial judge's summing up to jury prejudicial to the defendant. Held trial judge's summing up not unfair to the defendant.

Cole JA At a trial by jury conducted before Sperling J in mid-1995, the jury found in favour of the respondent. In the result there was a judgment in favour of the respondent for $581,553.42.

The respondent was an ambulance officer stationed at Taree. On 1 August 1985 he was dispatched to attend a patient after the ambulance controller had received a telephone call from a female doctor, Dr Wilson. The controller dispatched the respondent alone. On arriving at the patient's house, the respondent thought he required assistance to move the patient. He radioed for assistance but was told none was available. The respondent then sought to move the patient, with some assistance from the lady doctor, using a "fore and aft lift". In so doing he suffered hernia injuries. His evidence was that he could not use a "log roll" or a chair to move the patient because use of that technique or equipment required two experienced persons. Thus he was obliged to use the "fore and aft lift". Had there been another experienced ambulance officer with him he would have been able to use either of those methods and thus have avoided injury.

The appellant has raised five grounds of appeal in an amended notice of appeal. Grounds 1, 3 and 4 may be addressed together.

1 His Honour was in error in failing to enter a verdict by direction for the defendant.