Atgazis v Health Administration Corporation [2010] NSWCA 271

New South Wales Court of Appeal

CITATION: Atgazis v Health Administration Corporation [2010] NSWCA 271

HEARING DATE(S): 18/10/2010 JUDGMENT OF: McColl JA at 110, 12; Handley AJA at 1; Sackville AJA at 11

EX TEMPORE JUDGMENT DATE: 18 October 2010

DECISION: Summons for leave to appeal is dismissed with costs

CATCHWORDS: Leave to appeal - no question of principle

CATEGORY: Principal judgment

PARTIES: A - Anita Atgazis R - Health Administration Corporation

FILE NUMBER(S): CA 2009/323102

COUNSEL: A - J Fernon SC and T Boyd R - J Downing and P Dwyer

SOLICITORS: A - Herbert Weller, Solicitor GILD Insurance Litigation Pty Limited

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 3379/2008

LOWER COURT JUDICIAL OFFICER: Judge Truss

LOWER COURT DATE OF DECISION: 4/12/2009

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/323102

McCOLL JA HANDLEY AJA SACKVILLE AJA

MONDAY 18 OCTOBER 2010 ATGASIS v HEALTH ADMINISTRATION CORPORATION Judgment 1 HANDLEY AJA: This is an application for leave to appeal from the dismissal by Truss DCJ of the applicant's action for damages against the New South Wales Ambulance Service for their failure to examine her and take her to hospital when called to her home at 3 am on 26 July 2005. She sued for damages for negligence and for an intentional tort causing her personal injury. 2 The applicant had been viciously assaulted by her partner who then called 000 for an ambulance reporting an injury to her eyes. The ambulance officers arrived at her home to return some nine minutes later. According to the evidence of officer Vidler they left without having seen or examined the applicant. Her Honour rejected the applicant's claims, and only the claim for the intentional tort is pressed. 3 The Judge was not satisfied that the applicant had discharged the onus of proving that the officers intended to cause her personal injury. The officer called in the defendant's case had no recollection of the events that night, but the official records established that the officers arrived and left without examining or treating the applicant. The ambulance officer knew the applicant from previous calls to her home and said that he didn't believe he saw her on the night in question. 4 The applicant's case was that the ambulance officers were told by her partner on arrival that she had fallen and injured herself in the stomach but they left without seeing her or examining her in any way. Her Honour rejected that evidence. 5 Mr Fernon SC for the applicant submitted that her Honour failed to have regard to evidence in the defendant's case about the record made when the officers returned to their vehicle and the significance of that evidence. Her Honour did not reject the evidence of the officer, and she expressed no doubt about his credibility. He said that according to his normal practice the official record indicated that the officers had not seen or examined the applicant. 6 The issues sought to be agitated in the proposed appeal depend on the reversal of the judge's finding that the applicant had not discharged the onus of proving the intentional tort. 7 Her Honour said at para [71] that there was no evidence capable of supporting a finding of intention to inflict injury and that is undoubtedly correct. Mr Fernon put the applicant's case on the basis that a finding of reckless indifference to the risk of injury would satisfy the element of intention in this tort. 8 It is not necessary to express any view on that question. The Judge found that the evidence did not support a finding that the conduct of the ambulance officers was so plainly calculating that damage to the applicant was a natural and probable result. 9 The proposed appeal would raise questions of fact and the sufficiency of the evidence to support the applicant's case. In my judgment such a case does not warrant the grant of leave to appeal. I would therefore propose that the summons for leave to appeal be dismissed with costs. 10 McCOLL JA: I agree. 11 SACKVILLE AJA: I also agree with his Honour's proposed orders and with his Honour's reasons. 12 McCOLL JA: The orders of the Court are therefore as Justice Handley has proposed. **********