NEAL v AMBULANCE SERVICE OF NEW SOUTH WALES [2008] NSWCA 346

New South Wales Court of Appeal

CITATION: NEAL v AMBULANCE SERVICE OF NEW SOUTH WALES [2008] NSWCA 346

HEARING DATE(S): 24 November 2008

JUDGMENT DATE: 10 December 2008

JUDGMENT OF: Tobias JA at 1; Basten JA at 2; Handley AJA at 66

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondents' costs of the appeal.

(3) Allow the cross-appeal and set aside orders 1 and 2 made in the District Court on 15 June 2007. DECISION: (4) In lieu thereof,

(a) give judgment for the Ambulance Service of New South Wales (the first defendant) against the plaintiff; (b) order the plaintiff to pay the first defendant's costs of the trial, insofar as the costs relate solely to the case as against the first defendant.

(5) Grant Michael Neal a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the cross-appeal.

CATCHWORDS: EVIDENCE – admissibility – evidence of what plaintiff would or would not have done – subjective approach – Civil Liability Act 2002 (NSW), s 5D(3) - INTOXICATED PERSONS – police powers to detain intoxicated persons – whether hospital "responsible person" – Intoxicated Persons Act 1979 (NSW) ss 3, 5 - POLICE – powers to detain intoxicated persons – purpose of detention powers – whether power to require intoxicated person to undergo medical treatment – status of police protocol – Intoxicated Persons Act 1979 (NSW) ss 3, 5 - TORTS – negligence – duty of care – causation – duty of care owed by Ambulance Service and police to plaintiff – plaintiff intoxicated and resisted assistance from ambulance officers – plaintiff taken into custody – whether ambulance officers required to advise police that plaintiff needed to be conveyed to hospital – whether breach of duty on part of police through custody manager failing to comply with police protocol – whether police should have taken plaintiff to hospital when he arrived at police station – whether plaintiff would have accepted medical assessment and treatment from hospital - WORDS & PHRASES – "responsible person"