EVANS v NSW AMBULANCE SERVICE [2004] NSWCA 95

New South Wales Court of Appeal

CITATION : EVANS v NSW AMBULANCE SERVICE [2004] NSWCA 95 HEARING DATE(S) : 24 March 2004 JUDGMENT DATE : 7 April 2004

JUDGMENT OF : Sheller JA at 1; Ipp JA at 44; Tobias JA at 45 DECISION : Appeal dismissed with costs.

CATCHWORDS : Compensation to Relatives Act claim following death of de facto husband while employd by respondent - adequacy of medical and communication facilities at place of posting - whether breach of duty of care when respondent had knowledge of deceased's asthmatic condition - whether response to risk was reasonable. LEGISLATION CITED : Compensation to Relatives Act 1897 CASES CITED : Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 PARTIES : Kelly Evans - Appellant NSW Ambulance Service - Respondent FILE NUMBER(S) : CA 40010/03 COUNSEL : R W C Royle/M L Holz - Appellant A C A Bridge SC/S A Beckett - Respondent SOLICITORS : Morton & Harris - Appellant Hicksons - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 4426/02 FILE NUMBER(S) : LOWER COURT Patten DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40010/03 DC 4426/02

SHELLER JA IPP JA TOBIAS JA

EVANS v NSW AMBULANCE SERVICE On 22 June 1999, at a time between 1.30am and 2.05am, Kristopher McEwan Markworth died as a result of an asthma attack while alone in his place of employment as a trainee ambulance officer at Mungindi Ambulance Station. The deceased had a history of asthma, including a severe asthma attack requiring hospitalisation in April 1999, just prior to his relocation to Mungindi. The New South Wales Ambulance Service, the respondent, was aware of the deceased's asthmatic history. In fact, the deceased had applied for his posting to be changed from Mungindi, on the basis of his asthmatic condition, given the heavy cotton dust and an alleged lack of medical facilities. Further, the deceased contended that his partner was unwilling to relocate to Mungindi due to a lack of suitable accommodation and the distance from her family.