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. 3. His Honour was in error in failing to direct a verdict for the defendant because on the general practice case put by the plaintiff, there was no evidence from which a jury could conclude that there was a lack of reasonable care for the safety of the plaintiff. 4. His Honour was in error of failing to direct a verdict for the defendant because, on the particular direction given to the plaintiff to attend the patient on the occasion of the accident, there was no evidence from which a jury could conclude that there was a lack of reasonable care for the safety of the plaintiff. The appellant's case was put on two bases. First, that there had been prior to 1985 a system of work which resulted in two ambulance officers normally responding to a call. Thus there were normally two experienced persons to lift patients. The evidence was that whilst that system was in place, the Taree Ambulance Station was not denuded of officers. Prior to 1985 the system was changed whereby frequently the controller directed one ambulance officer to attend a patient and to radio back if a second person was required. This system 2 UNREPORTED JUDGMENTS put the single officer at risk if, as here, the single officer was required to endeavour to move a patient alone, or with an inexperienced person assisting. Second, a particular case was alleged that on the night in question the respondent was dispatched alone in circumstances where the controller knew or should have known that the patient was non-ambulatory and unconscious thus making plain that two officers would be required. Assigning a single officer in such circumstances posed an unnecessary and foreseeable risk of injury in circumstances where, a doctor having made the call, it was foreseeable that the doctor would require the immediate movement of the patient. In my view it was open to the jury to find for the respondent on either basis. There was clear evidence of a prior system which permitted two ambulance officers normally to be dispatched, coupled with evidence that two such officers were able to perform different types of lifting so as not to put at risk of back injuries a single officer. To change that system in such a manner as to result in a single officer being put at risk in my view would entitle the jury to find that the appellant had not taken reasonable care to protect the respondent from foreseeable harm. There was evidence entitling the jury to form the view that there was at all times at Taree two ambulance officers available. Mr Brady and Mr Eastlake gave evidence that in the years 1982 and 1983 whilst they were at Taree, and when two officers were as a matter of course dispatched, the station did not become unmanned. The fact that the respondent was told when he radioed in that there was no other officer available did not mean that none was available at the time of dispatch, and there was evidence sufficient to cast doubt upon the correctness of that information which would have entitled the jury to reject it. The plaintiffs evidence was that there were three other ambulance officers on call. Regarding the particular case of negligence alleged, the forms noting calls for an ambulance made provision for the controller to note whether the patient was ambulatory or not. The particular form regarding this visit did not note whether the patient was ambulatory or not. The jury were entitled to infer that the dispatch officer sent the respondent on the visit alone not knowing whether the patient was ambulatory in circumstances where a doctor had called for the ambulance. In circumstances where the patient was non-ambulatory and semi or unconscious, and where her condition was such that it was necessary that she be moved to hospital promptly, the jury were entitled to find that the appellant had exposed the respondent to a foreseeable risk of injury by placing him in a situation where he had to endeavour to move the patient with the assistance of an inexperienced person. I would reject these three grounds of appeal. GROUND 2 His Honour was in error in refusing the tender of MFI 16. The appellant contends that Sperling J was in error in rejecting MFI16. The documents go only to the claim for economic loss. There is no appeal regarding quantum. Accordingly this ground of appeal is irrelevant to any issue on the appeal. It is to be further noted that Sperling J would have rejected the documents on discretionary grounds, even had he thought them admissible pursuant to sl4CE Evidence Act 1898. Such exercise of discretion would plainly have been a proper exercise therefore the document was said to go to the plaintiffs credit. I would reject this ground of appeal. UWREPARTMENT OF HEALTH - NSW AMBULANCE SERVICE v KIRKPATRICK (Sheller JAB GROUND 5 His Honour was in error in summing up to the jury in a manner which unfairly propounded the plaintiff's case so as to be prejudiced to the interests of the defendant. Whether a summing is to be categorised as lacking in balance is very much a matter of impression. Having carefully read the summing up I am of the view that the summing up does not exhibit the qualities which would call for appellate intervention. The contention put at the trial was that by prefixing what was said to be a statement of the manner in which the plaintiff put its case with words such as "you may think", the Court had given judicial endorsement to the respondent's case which was not cured by expressions indicating that nonetheless it was for the jury to decide all factual issues. A fair reading of the summing up does leave the impression that his Honour thought there was substance in the respondent's case on liability, but nonetheless the trial judge made plain on many occasions that all questions relating to liability were entirely for the jury, and they should disregard any view they might form that the trial judge was expressing his own view, unless they agreed with it. I do not think that the summing up was unfair to the defendant. I would propose that the appeal be dismissed with costs. Priestley JA I agree. I would only add that I recognise in accordance with some submissions which were put on behalf of the appellant on the basis of the principles concerning the way in which judges should sum up to juries as exemplified in particular in the case of Courtney Smith in 1990 48 ALR p49, that it will not always be sufficient for a trial Judge to make reference to the fact in summing up to a jury that matters of fact are for them to decide. There have been cases where, notwithstanding frequent references by a Judge to that position, an appellate court has come to the conclusion that nevertheless in reality the judge had gone too far in emphasising his own opinions about the facts in the course of summing up to the extent that it became manifest that the cases of the plaintiff and the defendant had not been left fairly to the jury to judge in regard to factual matters. For the appellant Mr Maconachie sought to persuade the court that this case fell into that category. Upon a reading of the summing up I did not get that impression. It is not for a Judge to conceal from a jury the fact that the evidence concerning the factual side of the plaintiffs case is strong. The object of a balanced summing up is to enable the jury upon its own assessment of the evidence to judge whether the case for one side or the other is stronger. If the Judge were to endeavour always to put the cases of both sides so that they appear to be equally balanced, the Judge would be likely to cause miscarriage rather than a fair trial. I myself see nothing in the way which the trial Judge here presented the factual aspects of the case to the jury which calls for any criticism on the score of balance or unfairness. I agree with the conclusion reached by Cole JA. The appeal should be dismissed with costs. Sheller JA Mr Maconachie of Queen's Counsel has said all that can be said in favour of his client's appeal. However, for the reasons given I think all the grounds relied upon by him fail. 4 UNREPORTED JUDGMENTS I too have carefully read the summing up. Paying particular attention to the considerations that are referred to in Courtney Smith No 2, I do not regard it as an unbalanced summing up. For the reasons given, I agree the appeal should be dismissed with costs. 6 Priestley JA That is the judgment of the court. Appeal dismissed with costs. 10 Counsel for the appellant: J E Maconachie QC/A C A Bridge Solicitors for the appellant: Hickson Lakeman & Holcombe Counsel for the respondent: P Semmler QC/P Morris 15 Solicitors for the respondent: Davies & Spicer