Logar v Ambulance Service of New South Wales Sydney Region

Catchwords

[2009] HCA 48 Fox v Percy (2003) 214 CLR 118[2003] HCA 22 Knight v Maclean [2002] NSWCA 314 Kollas v Scurrah (2008) 49 MVR 437[2008] NSWCA 17 Logar v Ambulance Service of New South Wales [2016] NSWDC 225 Marien v GardinerMarien v H J Heinz Company Australia Ltd (2013) 66 MVR 1[2013] NSWCA 396 Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357[2010] HCA 31 Penrith City Council v East Realisations Pty Limited (in liq) (2013) 63 MVR 180[2013] NSWCA 64 Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679[2016] HCA 22 Sharpe v GordonQBE Workers Compensation NSW (Ltd) v Gordon [2006] NSWCA 347 Thornton v Sweeney (2011) 59 MVR 155[2011] NSWCA 244 Waverley Council v Ferreira (2005) Aust Torts Reports 81-81

-[13] (Macfarlan JA).

Judgment

MACFARLAN JA: This judgment assumes the readers' familiarity with the contents of Schmidt J's judgment, which I have had the advantage of reading. Subject to what follows, I agree with her Honour's judgment.
I take a different view to that of her Honour concerning the driving of Ms Riches, the ambulance driver. In my opinion, a finding should have been made at first instance that Ms Riches did not act with reasonable care in driving her ambulance partly across Lane 1 of Castlereagh Road at the intersection in question. I also take the view, as did the primary judge, that Mrs Logar, the driver of the other vehicle involved, failed to exercise reasonable care and was thus contributorily negligent. I assess the parties' responsibility for the accident as 50% each.
Ms Riches moved her ambulance across part of Lane 1 not knowing whether any vehicles were travelling in this lane beyond the 25 metres of it that she could see. The applicable speed limit was 60 kph and, the Court was informed, a car travelling at 50 kph travels 15 metres per second. As a result, that Ms Riches was able to see 25 metres along Lane 1 clearly did not entitle her to regard the risk of her ambulance colliding with a vehicle travelling in that lane as non-existent or low.
The fact that her ambulance's lights and siren were on could reasonably have given Ms Riches some comfort in this respect. Nonetheless, such comfort could only have been limited in light of her evidence that, in the general experience of ambulance officers, ambulance lights and sirens are frequently ignored by members of the public. The caution with which, on her evidence, she entered and commenced to traverse the intersection (before reaching Lane 1) confirms a lack of confidence on her part that her lights and siren would give adequate notice of her ambulance's presence to other drivers approaching the intersection.
Furthermore, I do not consider that the evidence indicated that the medical emergency to which Ms Riches was responding was of such a level as to warrant her proceeding across part of a lane of traffic whilst unable to determine whether a vehicle was travelling down it at speed. In this respect it is relevant that Ms Riches gave evidence that, notwithstanding the medical emergency, she stopped her ambulance both before the intersection and after she had entered it, in each case waiting 10 seconds before proceeding. Further, she stated that she would never put the medical interests of a patient above her own safety. This is understandable, not only from her point of view, but also from that of patients. A patient's interest in being collected by an ambulance is hardly likely to be advanced by putting the ambulance at risk of a calamitous collision in an attempt to arrive at the collection point a few moments earlier.
Ms Riches' evidence-in-chief included the following: "Q. Were there vehicles in both lanes, as in both of the right turn lanes [of Castlereagh Road]? A. Yes, and in the first straight through lane. The second straight through lane, the gutter lane, lane 1, had no vehicles in it and that was my concern because I didn't know at that time if there were any cars coming there. That's why I waited there for a while, to see if there was any movement. … Q. Are you able to recall now how many cars were stopped in number 2 lane? A. As in the length of the lane? Q. Yes. A. No. It was full, as far as I could see. Q. The number 1 lane? A. Number 1 lane was empty. Q. So what did you then do? A. I waited to see if I could see movement in number 1 lane indicating that there was traffic coming through. I was satisfied after I sat there for five seconds or so that there was no movement, and proceeded through the intersection."
Notwithstanding that she appreciated a risk in moving the ambulance across Lane 1, Ms Riches decided to do so. When she did, she had no reasonable basis for concluding that no vehicle would travel down the lane and collide with her ambulance, as her line of vision was obstructed.
As Ms Riches conceded, she could only see 25 metres down Lane 1. Her suggestion that she waited "for a while, to see if there was any movement" was an appropriate precaution. However she should have continued to wait until the risk of collision was removed, or at least substantially reduced. This would have occurred within a short period when the traffic lights changed to give Ms Riches a green light, and therefore cars in Lane 1 a red light. It may have occurred even earlier if a vehicle travelling down Lane 1 stopped at its head because its driver noticed the ambulance siren or lights, or saw a vehicle stopped in Lane 2.
Ms Riches' evidence that "[i]f you don't move, if you don't do something people start to move around you and it becomes dangerous" (transcript p 337) does not answer this reasoning. It is implausible that, if the ambulance was stopped (briefly) in front of Lanes 4, 3 and 2, with its siren and lights on, and cars and a truck were stopped at the front of those lanes, any of those vehicles might have moved forward into the very prominent ambulance a few feet directly in front of them. Nor would there have been a risk from vehicles, travelling in the same direction as the ambulance, coming from behind it into the intersection. Once those vehicles obtained a green light enabling them to proceed, the ambulance was equally entitled to act on the same green light and complete its passage across the intersection. Moreover, any risk in this respect needed to be balanced against the risk of a collision with a vehicle travelling down Lane 1 at a speed up to the 60 kph limit, or even higher.

Contributory negligence

The primary judge's finding that Mrs Logar was contributorily negligent in not hearing the ambulance's siren should be upheld. It is difficult to understand why Mrs Logar did not hear it. Undoubtedly it was on and Mrs Logar conceded, based on her experience of hearing other sirens, that she would (or at least, should) have heard the siren if it was on. That leads to a conclusion that Mrs Logar must have been in some way distracted, or was simply not paying attention.
Mrs Logar was also contributorily negligent because she should have noticed that the tall van in Lane 2 was stationary, notwithstanding that it had the benefit of a green light. Mrs Logar was familiar with the road and should have known that Lane 2 was for vehicles passing straight through the intersection. In any event, it would have been obvious to her that three out of the four lanes in the direction she was travelling would not have been right turn lanes, and that at least two would have been straight through lanes. She should therefore have been alert to the possibility of a problem in the intersection and should have slowed sufficiently on her approach to enable her to stop her vehicle level with, or before, the van in Lane 2, if that proved necessary.
As the primary judge found that Ms Riches had not been negligent, it was unnecessary for him to consider apportionment of liability between the parties. However, his Honour said that if (contrary to his view) Ms Riches had been negligent, his Honour would have assessed the level of Mrs Logar's contributory negligence at 60%.
I do not consider that his Honour's contingent assessment restricts this Court in the view it can take as to apportionment. That assessment was not founded upon any identified conclusions (hypothetical or otherwise) as to the manner in which Ms Riches had been negligent. As I said in [2] above, my view is that responsibility should be apportioned 50/50. Both drivers were guilty of negligence of a relatively low order, bearing in mind that Ms Riches was attempting to deal with a medical emergency and that Mrs Logar was proceeding through an intersection with a green traffic light in her favour.

Orders

As my judgment is a dissenting judgment, it is unnecessary for me to propose detailed orders to give effect to my reasons.
EMMETT AJA: This appeal arises out of a collision that occurred on 3 June 2011 between a motor vehicle being driven by the appellant, Mrs Cherry Logar, and an ambulance vehicle owned by the respondent, the Ambulance Service of New South Wales Sydney Region (the Ambulance Service). The ambulance was being driven by Ms Megan Riches, an employee of the Ambulance Service. The collision occurred at the intersection of Castlereagh Road and High Street, also known as the Great Western Highway, at Penrith. As a result of the collision, Mrs Logar suffered personal injury.
The intersection in question is controlled by traffic lights. Mrs Logar's vehicle was travelling south on Castlereagh Road. There are four lanes on Castlereagh Road at that point. The two right hand lanes are for vehicles turning right onto the Great Western Highway to proceed west. The two left hand lanes are for vehicles proceeding south straight across the Great Western Highway onto Mulgoa Road. Mrs Logar's vehicle was travelling in the far left hand or kerb side lane and the lights facing her were showing green. A van was stationary in the second lane and several cars were stationary in each of the right turn lanes because the right turn arrow was red.
Ms Riches was answering an emergency call in the second highest category and the ambulance driven by her approached the intersection from the west, proceeding in an easterly direction along the Great Western Highway. The ambulance siren was sounding and its lights were flashing. As she approached the intersection, she changed the tone of the siren from a slow wailing to a more intense yelping. The traffic lights facing Ms Riches were red and she stopped at the traffic lights before proceeding, at walking pace, into the intersection. While the intersection was busy, all of the traffic had stopped, including the traffic proceeding north from Mulgoa Road on Ms Riches' right. Ms Riches observed stationary vehicles in all southbound lanes of Castlereagh Road, other than the kerb side lane where she saw no vehicles. She stopped for about five seconds in front of the right turning lanes before edging forward past the second lane, in which there was a stationary van, into the kerb side lane.
Mrs Logar did not see the lights or hear the siren of the ambulance. Shortly before entering the intersection, Mrs Logar increased her speed from 50 kph to 55 kph and, on driving her car into the intersection, collided with the ambulance as it was travelling through the intersection.
Mrs Logar commenced proceedings against the Ambulance Service in the District Court of New South Wales. She alleged that the collision occurred as a result of the negligence of Ms Riches, being the servant or agent of the Ambulance Service. On 14 October 2016, for reasons published on that day, a judge of the District Court (the primary judge) directed the entry of judgment for the Ambulance Service and ordered Mrs Logar to pay its costs of the proceedings. The primary judge concluded that the action that Ms Riches took was reasonable, bearing in mind the emergency situation that she faced, which might have gravely worsened if she had made no attempt to cross the kerb side lane. His Honour did not accept that Ms Riches' conduct was negligent. His Honour considered that Mrs Logar was guilty of failures but that her failures were lessened by the circumstance that she was facing a green light. Nevertheless, his Honour considered that her negligence was greater than any negligence that could be found against Ms Riches. His Honour assessed the level of Mrs Logar's contributory negligence at 60% if Ms Riches had been found to be negligent.

The primary judge made no finding as to the speed of the ambulance, failed to recognise an inconsistency between the account of Ms Riches and that of another independent witness, did not resolve the inconsistency and did not give adequate reasons for concluding as he did.
The primary judge failed to deal with all of the evidence with respect to the path of the ambulance through the intersection.
The primary judge misstated the test applicable to determining whether Ms Riches was in breach of her duty of care to Mrs Logar.
The primary judge erred in not identifying, or in his characterisation of, the relevant risk of injury to which the conduct of Ms Riches exposed Mrs Logar.
The primary judge erred in finding that Mrs Logar was guilty of contributory negligence and in the apportionment of blame in relation to contributory negligence, in that:
his Honour mistook the facts or failed to make findings of fact so that his assessment proceeded on a wrong basis;
his Honour was in error concerning the significance and potency of the relevant conduct of Mrs Logar and Ms Riches;
his Honour erred in finding that the failure to hear or see the ambulance siren or lights constituted in and of itself a failure by Mrs Logar to take reasonable care for her own safety;
his Honour did not give reasons as to why the failure to see or hear the lights or sirens, without more, was indicative of a want of reasonable care on the part of Mrs Logar.

I have had the advantage of reading in draft form the proposed reasons of Schmidt J for concluding that the appeal should be dismissed with costs and the proposed reasons of Macfarlan JA for concluding that the appeal should be upheld. I agree with Schmidt J that there was no error on the part of the primary judge in failing to make a finding as to the actual speed at which the ambulance proceeded through the intersection in circumstances where the claim that the speed was excessive in the circumstances was not pressed. I also agree with her Honour that there was no error on the part of the primary judge in failing to deal with all of the evidence as to the path of the ambulance through the intersection.
The primary judge referred, at several points in his reasons, to the risk of collision. At the trial, there was no issue as to the existence of a risk of injury as a consequence of collision between the ambulance and another vehicle in the intersection. Nor was there any issue as to whether such a risk was both foreseeable and not insignificant. In addition, there was no issue that Ms Riches owed a duty of care to Mrs Logar. The primary judge did not fail to identify, or err in his characterisation of, the relevant risk of injury to which the conduct of Ms Riches in driving the ambulance through the red light into the intersection exposed Mrs Logar.
I agree with Schmidt J that the finding by the primary judge that the ambulance was driven slowly and carefully through the intersection was open on the evidence. I also agree with her Honour that it was open to the primary judge to conclude that Mrs Logar did not establish that Ms Riches had breached the duty of care that she owed to Mrs Logar when she moved the ambulance forward into the kerb side lane. The primary judge had to take into account the social utility of the response to the emergency to which Ms Riches had been assigned. I consider that, having regard to the medical emergency to which Ms Riches was responding, her actions in proceeding slowly through the intersection against the red light, with her siren sounding and her lights flashing, having already stopped twice, justified her action in proceeding into the kerb side lane notwithstanding that she could not be completely certain that another vehicle might not be proceeding in that lane at a speed almost equal to the limit in circumstances where the vehicles in the other three lanes were stationary despite there being a green light in their favour.
In that regard, I have the misfortune to disagree with the conclusion reached by Macfarlan JA that, since Ms Riches' line of vision was obstructed when she decided to move the ambulance across the kerb side lane, she had no reasonable basis for concluding that no vehicle would travel down that lane and collide with the ambulance. Ms Riches paused while in front of the stationary vehicles before proceeding into the kerb side lane. I consider that Ms Riches was entitled to assume that a reasonable driver in the kerb side lane would have observed the stationary van in the second lane and would have heard the ambulance's siren and seen the flashing lights. There was no breach of duty on her part in proceeding into the kerb side lane.

Grounds of Appeal on liability

The grounds advanced in the amended notice of appeal were: "1 His Honour erred in his approach to the evidence concerning the speed of the respondent's vehicle as it crossed the intersection, in that his Honour. a. Made no finding as to the speed of the ambulance; b. Failed to recognise an inconsistency between the respondent's account and that of Mr Thwaites[sic]; c. Did not resolve the inconsistency in their evidence; d. Did not give adequate reasons for concluding as he did. 2 His Honour failed to deal with all of the evidence relevant to determining what happened with respect to the ambulance's path through the intersection. 3 His Honour misstated the test applicable to determining whether the respondent was In breach of her duty of care to the appellant and in his identification of the "real question" at J [31], 4 His Honour erred in finding that the respondent was not in breach of the duty of care she owed to the appellant. 5 His Honour erred in not identifying, or in his characterisation of, the relevant risk of injury to which the respondent's conduct exposed the appellant. 6 His Honour erred in: a. Finding the appellant to have been guilty of contributory negligence; b. The apportionment of blame in relation to contributory negligence, in that: i. The errors identified In Grounds 1 to 5 mean that his Honour mistook the facts or failed to make findings of fact so that his assessment proceeded on a wrong basis; ii. Grounds 1 to 5 entail that his Honour was in error concerning the significance and potency of the relevant conduct of each of the appellant and the respondent; iii. His Honour erred in finding that the failure to hear or see the ambulance siren or lights, respectively, constituted in and of itself a failure by the appellant to take reasonable care for her own safety; iv. His Honour did not give reasons as to why the failure to see or hear the sirens or lights, without more, was indicative of a want of reasonable care on the part of the appellant."

The parties' cases at trial

Mrs Logar's case

In resolving the matters pursued on appeal, it is necessary to bear in mind the cases which the parties had advanced at trial.
Mrs Logar's case then was that her evidence would be accepted and preferred over that of Ms Riches. In her cross-examination Mrs Logar admitted, however, that if the ambulances' lights and sirens had been on, she should have noticed it. Her evidence that they were not on, was contradicted by both the evidence of Ms Riches and that of the independent witnesses, Mr Whaites and Ms Tanner. So too was Mrs Logar's evidence that she had been driving in lane 2, not lane 1.
The case Mrs Logar advanced at trial in written submissions was that Ms Riches had a statutory obligation to take reasonable care while travelling through the intersection against the red light and that she had failed to take the required care, because she gave herself no opportunity to observe the presence of Mrs Logar's car, when it was travelling towards the intersection.
In written submissions it was conceded, however, that the only possible inference on all of the evidence was that Mrs Logar did not hear the siren, "whether it was on or not". That was relied on, as weighing heavily against a finding of contributory negligence on her part.
Mrs Logar also there contended that Ms Riches' breach of duty had been established by the evidence which established that she could have either taken a different, more southerly, path through the intersection, or she could have waited until the lights had changed, before entering the lane that Mrs Logar was driving in.
When weighing up the relative culpability of the parties, it was submitted to be relevant that Ms Riches knew of the risk of vehicles entering the intersection, while Mrs Logar, by inadvertence, had been unaware of the siren and had no visual cue as to the presence of the ambulance, save for perhaps, a vehicle slowing down in another lane.
In oral submissions it was submitted for Mrs Logar that Ms Riches had not taken reasonable care, knowing that she was proceeding through a red light, because she knew that even with lights and sirens on, vehicles commonly entered intersections she was trying to cross in the ambulance. Ms Riches had been aware of an empty lane, of which she did not have an adequate view and so she should have put herself in a position where she could see down the lane, before she attempted to cross it.
The principle raised by the case identified by the trial judge, which was accepted for Mrs Logar, was whether it is reasonable for an ambulance on an emergency call of some significance, to stick its nose out into a lane of traffic, when what was in the lane could not be seen and there was a risk that a car may be coming down that lane, which does not have sufficient time to avoid a collision.

The Ambulance Service's case

The case advanced for the Ambulance Service in written submissions was that Mrs Logar's evidence, including as to the lane she was travelling in, could not be accepted, given that Ms Riches' evidence had been corroborated by that of Mr Whaites and Ms Tanner. Ms Riches' evidence would be preferred, given their corroboration of other aspects of her evidence, including that vehicles in lane 2 were stationary prior to the collision. In the result, it would be concluded that the ambulance's sirens were not only capable of being heard for some 20 seconds prior to impact, as Mrs Logar approached the intersection, but that the ambulance was also capable of being seen.
While it was accepted that there was a risk of collision occurring as the result of the ambulance entering the intersection, which was foreseeable, the Ambulance Service contended that the evidence did not establish that a reasonable person in Ms Riches' position, would have taken other precautions: Civil Liability Act; s 5B (1)(c). It would also be accepted that the probability of a vehicle speeding through the intersection in the only vacant lane, when the rest of the intersection was frozen despite the green lights, when the siren was sounding, was low.
In the circumstances, while other approaches to crossing the intersection were available, it would be found that Ms Riches had acted reasonably and not in breach of the duty of care owed to Mrs Logar.
In the result, when the social utility of the activity which had created the risk of harm was taken into account, it would not be concluded that a reasonable person would have taken the precautions for which Mrs Logar contended: Civil Liability Act, s 5B(2)(d). That was argued to be the utility of an ambulance responding to an urgent call for medical assistance for a patient who was unconscious and whose breathing was questionable, a job falling into the Service's second highest category of emergency, which required an urgent response with the ambulance's lights flashing and sirens activated.
In oral submissions it was argued by the Ambulance Service that while an ambulance officer who had right of way under the Road Rules could not drive against a red light through an intersection without exercising reasonable care, the scope of the driver's liability was conditioned by other provisions of the applicable Road Rules.
It was therefore submitted to be relevant to take into account that Mrs Logar had not stopped or exercised due care in the circumstances established on the evidence, where all other vehicles apart from hers were stationary, despite the green light, in order to allow the ambulance to proceed through the intersection, in accordance with their obligations under the Road Rules.
It was also submitted that the decision to nose the ambulance into the lane Mrs Logar was travelling in was made cautiously in the circumstances, where all other traffic had stopped and Ms Riches could not detect movement in the final lane, where she did not have clear vision, when other options available to her were not more advantageous. Accordingly, no breach of duty would be found.

Why Mrs Logar's case failed at trial

The onus to prove her claim fell on Mrs Logar. The primary judge thus began his judgment with the account Mrs Logar had given in her evidence. His Honour observed that Mrs Logar could recall that the traffic lights were green as she approached the intersection, with a red arrow for the right turning lanes, but she did not remember either any cars waiting in any lanes, nor the position of any other vehicles, except one car which she remembered driving in her lane about 20 metres ahead, which had proceeded through the intersection ahead of her. Her window was down 10 centimetres and her radio was off, but she had heard no siren and had not seen an ambulance, or flashing lights. Mrs Logar had acknowledged, however, that if they were operating, she should have noticed the ambulance: Logar v Ambulance Service of New South Wales [2016] NSWDC 225 [3].
His Honour found that it was Mrs Logar's car which had collided with the ambulance, just after entering the intersection: Logar at [4].
The primary judge also noted Mrs Logar's evidence that after the collision she said to Ms Riches "I'm sorry I didn't see you, Help, I'm pregnant with twins", to which Ms Riches replied "no, it's my fault. I didn't see you": at [5]. In cross-examination Mrs Logar's evidence was that Ms Riches said "I'm sorry I didn't see you": at [6]. While being transported to hospital in another ambulance with Ms Riches, Mrs Logar said that she had overheard a conversation in which Ms Riches was asked "Where were you going?" to which Ms Riches replied "High Street". When asked "How fast were you going?" she responded "You know how fast these things can go zero to 60": at [7]. Mrs Logar had made similar statements to police some four weeks after the collision: at [8].
The primary judge then dealt with the markedly different account given by Ms Riches in her evidence. Her evidence was that she was attending a 1B emergency, a code indicating the assignment involved an unconscious patient with breathing difficulties. She explained how she came to be driving on High Street, after she had responded to the call, having activated the flashing lights and siren and how she had proceeded to the intersection: at [9].
Ms Riches' evidence was that as she approached the intersection she switched the siren from a wailing to a yelp sound. Traffic was stopped at a red light in the two general lanes heading east on High Street, so she moved into the bus lane and stopped at the lights: at [10]. The traffic on her right stopped and after about 10 seconds, she moved slowly across the northbound lanes of Castlereagh Road, against the red light, stopping in front of the stationary vehicles in the right turn lanes, 3 and 4, on the eastern side of Castlereagh Road for a further 10 seconds. She then continued at 1-2 kph past a stationary vehicle in lane 2, the first southbound lane. Having looked to lane 1 and finding no movement that she could see, she moved forward at 1-2 kph, putting the nose of the ambulance into lane 1, when the collision occurred. She had not switched off the lights or siren beforehand and denied making any admissions to Mrs Logar as to her responsibility for the accident, to not having seen her, or of having had any conversation in the second ambulance, about the acceleration of her ambulance: at [10].

Ground 5 - the risk

In written submissions on appeal Mrs Logar contended that the primary judge had erred in not defining the real risk of injury to which she was exposed. That was said to be a risk of a motorist having a green light entering the intersection, while oblivious to the presence of the ambulance moving across the intersection while facing a red light, thereby giving rise to a risk of collision causing injury.
It was also argued that his Honour had failed to consider what a reasonable person would have done, by way of response to that risk, which had to take into account the presence of a van or small truck obscuring Ms Riches' view down lane 1 and foreseeably obscuring Mrs Logar's view of the intersection.
This was not Mrs Logar's case at trial.
There was no issue between the parties at trial either about the existence of a risk of injury when Ms Riches entered the intersection against the red light, that giving rise to a risk of collision between the ambulance and another vehicle entering the intersection, or that this was a risk which was both foreseeable and not insignificant. Nor was there any issue that Ms Riches owed Mrs Logar a duty of care, despite the provisions of the Road Rules which applied respectively to Ms Riches and Mrs Logar.
Contrary to the case advanced for Mrs Logar on appeal, the primary judge did refer to the risk of collision, at various parts of his judgment. At [25], for example, where his Honour observed that if Ms Riches had travelled further to the south as she entered the intersection, one of the precautions in issue, it would have involved the ambulance travelling across more lanes of traffic, blocking other lanes and increasing the risk of a collision.
That there was any error in his Honour's approach to the risk which the parties agreed at trial existed, has not been established.

Ground 1 - The speed of the ambulance

The case advanced for Mrs Logar in written submissions on appeal was that the primary judge had failed to make necessary findings and that it was glaringly improbable on the evidence that Ms Riches stopped when she reached lane 1 and highly probable that she had entered lane 1 at a speed of somewhere between 10 and 15 kph, without first stopping and certainly without stopping for five seconds, as was her evidence.
It was contended that his Honour should have found that the ambulance was driven through the intersection at excessive speed, having regard to Ms Riches' inability to determine the status of lane 1; that his Honour failed to find the speed at which the ambulance was travelling; and that his Honour had erred in concluding that the evidence of Mr Whaites and Ms Tanner corroborated that of Ms Riches.
It was also contended that Ms Riches should have moved across the intersection at a lower speed; that she should have stopped once the front of her vehicle was very slightly protruding into lane 1, so that any motorist could have seen her vehicle and only after remaining so stopped, should she have proceeded further. She should also have moved more toward the centre of the road, to improve her view. Alternatively, she should have waited until the light on High Street turned green, which would have obviated any vehicle entering the intersection.
At trial, while it was Mrs Logar's case that Ms Riches had fabricated some aspects of her evidence, there was no challenge to other aspects. Ms Riches was then an ambulance driver of some 29 years' experience, with no prior involvement in an accident, having responded to up to 50 or 60 emergency calls in a week. In the statement Ms Riches had made to police at the scene, it was recorded that: "I was travelling east on the Great Western Highway, I was travelling in the bus lane with lights and siren activated I came to a complete stop at the traffic lights line. I could see the northbound traffic was at a complete stop and I could see that the south bound traffic had stopped. I could see the far lane was clear and empty I proceeded through the traffic lights I was travelling about 10 km/ph and I felt the hit from the other car. I was wearing a seatbelt at the time but the time there was a red light for my direction of travel. The traffic was heavy at the time."
While Ms Riches was cross-examined about aspects of this account, including as to her speed, whether she had stopped and what she could see of lane 1 before she entered it, it was not Mrs Logar's case at trial that a finding as to the actual speed at which the ambulance entered lane 1, had to be made. To the contrary, when the primary judge asked directly whether particular (c) of the particulars of negligence pleaded in the statement of claim, driving at excessive speed, was relied on, it was indicated for Mrs Logar that it was not:
There was, in the result, no error in the primary judge making no finding as to the actual speed which Ms Riches drove through the intersection, given that the claim that her speed had been excessive in the circumstances, was not pressed. As I will explain further, his Honour's conclusion that Ms Riches drove slowly and carefully through the intersection, was open on the evidence.

Grounds 3 and 4 - Breach

In oral submissions on appeal it was submitted that Ms Riches' evidence in cross-examination established the breach of her duty to Mrs Logar. What was particularly relied on was the evidence that: "Q. You didn't see the plaintiff before the collision? A. No, I saw a white flash, just a white flash. Q. But that would have been once she was in the intersection, just before the collision occurred. A. Yes, it would have been. Q. A matter of feet. A. It would have been, just to be on top of me, yes. Q. And you had virtually no opportunity to appreciate the presence of the vehicle before the collision, it happened so fast. A. That's true. Q. And that was entirely because of the position in which you placed yourself on the roadway, I want to suggest. A. Yes."
It was argued that Ms Riches not having seen any movement, established that she had not kept a proper lookout; that she had denied herself the opportunity of making an observation of the lane, while stationary; that she had no plausible explanation for not having seen Mrs Logar's car and that this all established that she had not stopped before entering lane 1. Therefore, it was argued that the primary judge should have concluded that Ms Riches had only stopped as she had said in her police statement, before the intersection when she had made an observation of lane 1 and that she then failed to stop again, before entering lane 1.
It must be borne in mind however, that s 5C(b) of the Civil Liability Act provides that "the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done".
What his Honour thus had to determine was both what Ms Riches actually did and whether that departed from what a reasonable person would have done in the circumstances, given the admitted risk which the ambulance crossing the intersection against a red light involved. The duty was to take reasonable care in the circumstances. It was not to avoid any risk of collision with a vehicle in lane 1, at any cost. The question of what the duty required also had to be approached prospectively: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [31] and [40].
Thus it was that the requirement imposed by Road Rule 306, that Ms Riches exercise reasonable care when entering the intersection against the red light, was relevant to the question of whether she had breached the duty which she owed Mrs Logar. As discussed in Verryt v Schoupp [2015] NSWCA 128 at [4], what reasonable care requires in any given case is not resolved by asking whether the conduct in question was or was not prohibited by any of the Road Rules. If particular conduct was prohibited that may, however, be a factor pointing to the conclusion that reasonable care was not taken: see Kollas v Scurrah (2008) 49 MVR 437; [2008] NSWCA 17 at [76], Sharpe v Gordon; QBE Workers Compensation NSW (Ltd) v Gordon [2006] NSWCA 347 at [5] - [6] and Penrith City Council v East Realisations Pty Limited (in liq) (2013) 63 MVR 180; [2013] NSWCA 64 at [53] - [54].

Did the independent witnesses corroborate Mrs Logar?

On appeal the complaint was that the primary judge had wrongly concluded that there was nothing more that Ms Riches could have done, to avoid the collision. That, it was argued, rested on the erroneous view that her evidence was corroborated by that of the other witnesses. It was contended that not only did the primary judge fail to make a finding as to the speed at which the ambulance drove through the intersection, his Honour also failed to make a finding as to whether the ambulance had stopped, before it entered lane 1. It was also argued that Ms Riches' evidence that she had stopped and waited before entering that lane, was contradicted by the evidence of the independent witnesses.
It was Mrs Logar's case that the situation to which Ms Riches was responding did not justify her proceeding into the intersection, beyond the point that she was able to accurately and reliably identify the presence of "competing" vehicles. Given her concession that she did not have a clear view of lane 1, she should have acted so as to avoid the possibility of collision with any vehicle in that lane, which she could not see.
Ms Riches should thus have waited for the lights to change from green to red for the southbound lanes on Castlereagh Road before entering lane 1, given her limited view of traffic in that lane. Alternatively, she should have driven at an angle across the intersection, to get a better view down the lane before she entered it. Or she could have stopped between lanes 1 and 2 and only moved after a period, during which any vehicle in lane 1 would have had an opportunity to see the ambulance.
It should be noted that not all of these possibilities were advanced at trial, or put to Ms Riches in cross-examination.
In resolving what evidence he was going to accept, the primary judge had to take into account that much of Mrs Logar's evidence was not only contradicted by that of Ms Riches, but also by that of the independent witnesses and in relation to some matters, by documentary evidence. All of this was relevant to his Honour's assessment of the evidence given by Ms Riches.
It must also be remembered that the credibility and reliability of the evidence of both Mrs Logar and Ms Riches were in issue at trial. Mrs Logar was cross-examined about various aspects of her evidence, including that the lane she was driving in was not lane 1; that there was another vehicle stopped in lane 2; and about the vehicle she claimed had crossed the intersection ahead of her in lane 2, by 20 metres. Mrs Logar denied driving in lane 1, or that a vehicle was stopped in lane 2. She could also not remember seeing any other vehicles stopped at the intersection, or seeing or hearing the ambulance or its flashing lights. The primary judge did not accept her evidence.
Mrs Logar's evidence that she was driving at 55 kph, having sped up before she entered the intersection, when she felt a big bang was not challenged. In cross-examination Mrs Logar said that she had had no chance to put her brakes on, before the collision.

Should Ms Riches have taken another route?

There was no issue at trial that a category 1B emergency of the kind to which Ms Riches was responding, required her to use lights and sirens, it being a high priority emergency.
When Ms Riches came to the intersection she crossed against the red light, as Road Rule 306 permitted, on her evidence because she had a duty to attend that emergency, but understanding that not all drivers obeyed their obligations under Road Rules 78 and 79. She also said that she did not put a job in front of her own safety. Her approach was that if it was not safe to go, she would sit and wait until it was, or she believed it was, as she did when she nudged into lane 1.
There was understandably no suggestion that Ms Riches had also breached the duty of care which she owed drivers other than Mrs Logar, given that the result of her approach, both on her evidence and that of the independent witnesses, was that all of the other vehicles at the intersection had stopped, in order to let her ambulance pass.
It was also not Ms Riches' decision to move into the intersection, after the traffic had stopped to let her pass, which Mrs Logar alleged had involved a breach of the duty of care she was owed. It was only the decision to enter into lane 1, as Ms Riches did and how she crossed the intersection, which was argued to have involved any negligence.
What his Honour thus had to resolve was whether what Ms Riches did, adhered to her duty to take reasonable care in all of the circumstances then confronting her, given other precautions which she could have taken.
As discussed in Marien v Gardiner; Marien v H J Heinz Company Australia Ltd (2013) 66 MVR 1; [2013] NSWCA 396: "[35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path".
Ms Riches' evidence was that she had decided that the safest place to enter the intersection was on the left side of Hill Street, in the bus lane. She was asked: "Q. What other choices did you have in terms of options? You proceeded to the point where you were almost crossing through the intersection. A. The other alternative would have been to wait until a car did come and stop. Q. Is there any problem with doing that or is there any issue that arises from taking that step as an alternative? A. I could have been waiting for a long time. Q. From your previous experience, are there any other safety or other concerns that you have if you're effectively sitting in a frozen intersection like that? A. Yes. Q. With lights and sirens on. A. Yes. If you don't move, if you don't do something people start to move around you and it becomes dangerous."

The southerly route

Ms Riches explained that she believed that to have taken a more southerly course, gave rise to other risks, involving other drivers. In cross-examination Ms Riches accepted, however, that it had been possible for her to have taken a more southerly course across the intersection. That concession alone does not establish a breach of her duty.
Ms Riches also agreed that she could have taken a different route across the intersection, to improve her line of vision. When asked why she had not travelled differently across the intersection, to improve her view of lane 1, Ms Riches said that she could not have turned sharper, to get any better view. To do that, she had to stick her nose further out, but she did not get that far. Ms Riches also said that she had proceeded into lane 1, believing that the lane was clear, because she had not seen any movement there.
Ms Riches had to cross lanes 4, 3, 2 and 1 of Castlereagh Road against a red light. The primary judge found that she had done so, driving slowly and cautiously past the cars stopped in each of those lanes. Ms Riches then had to decide how to cross lane 1, where there was no car stopped and she could see no movement, in the 25 metres that she could see down that lane. When asked why she had decided to proceed, Ms Riches' evidence was: "A. Because I was on duty. I had a job to go to. I was under instruction to, I was given the job so I was, I had a duty to attend. I believed I was clear so I proceeded. Q. Was there anything about all the other traffic around that effected your judgment as far as what you should or shouldn't do? A. Everyone was stopped. The traffic around me was stopped. The intersection was very quiet. Q. What essentially, what choices were you left with at that point in time in terms of what you should do? All the intersection effectively haven't (sic having) stopped, except that one lane. A. I had to see. I had, I believed that that lane was clear. Q. Yes. A. So I did proceed. I had a plan to go the middle lane. I had a plan to check that lane but I didn't get to check it further. Q. Why was that? A. Because I was hit when I put my nose out into it."
While Ms Riches was extensively cross-examined, her evidence that she had proceeded, believing that it was her duty to do so, was also not challenged.
While Ms Riches did recall seeing vehicles driving through the intersection, she did not recall any vehicle having passed through the intersection in the lane that Mrs Logar was in, just before the accident. Ms Riches believed that she had proceeded with caution into lane 1, by putting only the nose of the ambulance into the lane, even though she could not then see clearly down that lane. That was when the ambulance was struck by Mrs Logar's car.
Ms Riches also agreed in cross-examination that she had veered slightly in the bus lane, because she was aiming for the right lane. She was also asked whether she had nudged forward, because she could not see anything in lane 1, with which she also agreed, explaining that it was the barrel of that lane of which she did not have a clear view. Ms Riches said, however, that there was no car at the front of that lane and that she could see no movement for 25 metres, in that lane.

Stopping at lane 1

At [31] his Honour said that "the real question is whether Ms Riches should have avoided the risk of harm and remained stationary, not putting the nose of her vehicle into lane 1 until such time as either a car in lane 1 had pulled up at the intersection or until the lights had changed, so that she could proceed with a green light". His Honour concluded that while the other options advanced for Mrs Logar would have been preferable in ordinary circumstances, they were not in the emergency situation in which Ms Riches was involved.
There was also no error in that conclusion.
In cross-examination Ms Riches was asked: "Q. One option that was available to you when you reached the stop line bus lane was to simply wait for the lights to change wasn't it? A. I was on an emergency run, and for me stop would not have been full my duty. Q. So that's not something that you think you would've done in the circumstances. Is that right? A. That's correct."
What Ms Riches had to consider, before she crossed lane 1, included the emergency to which she was responding; that the light still remained green for vehicles travelling south on Castlereagh Road; that she there was no vehicle stopped in lane 1; that she could see no movement in that lane; that her view down the lane was only 25 metres; the short time in which a car travelling at the speed limit could travel such a distance, which left open the possibility of a collision with a car which she could not see, if she entered the lane; that other vehicles did not always stop for an ambulance displaying lights and sirens; that all of the other vehicles in the intersection had, however, stopped, in order to allow her to traverse against the red light; and that those cars, as well as the lights and sirens could be seen and heard by anyone driving in lane 1.
Ms Riches evidence that she had proceeded, because of her duty to respond to the emergency she had been assigned, was not challenged. The emergency involved a person lying unconscious in the gutter, who had stopped breathing. There is no question that this person required her urgent assistance.
Ms Riches had to take that into account, when making her decision about how and when to traverse lane 1, together with the possibility of someone driving in that lane, oblivious not only to the ambulance's lights and sirens, but also to the other traffic stopped in the intersection and thus not stopping in order to allow her to cross the lane safely. Ms Riches had to take into account the consequences of the delay involved in her waiting until she could be certain that there was no risk raised by nudging into lane 1 - not only the risk of other cars which had stopped, beginning to move again and the consequences of further delay which would be borne by the injured person who required her assistance.
When Ms Riches proceeded into lane 1 there was, undoubtedly, then a possibility that such a driver would be unable either to stop, or avoid the nose of the ambulance, if it was nudged into that lane, as she decided to do. In all of the circumstances, however, Ms Riches was not negligent when she concluded, that this possibility was sufficiently low for reasonable caution to permit her to proceed, given that the intersection was otherwise at a standstill, before she entered lane 1.

Orders

In the result I would order that the appeal be dismissed. The usual order would be Mrs Logar bear the Ambulance Service's costs of the appeal. Unless the parties wished to be heard on costs, that would be the costs order which I would make.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 October 2017

(Emmett AJA); [88], [95]-[162] (Schmidt J). Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31; Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679; [2016] HCA 22 applied. As to issue (ii) Schmidt J (Emmett AJA agreeing) held that there was no error in the primary judge's finding that Ms Riches did not breach her duty of care to Mrs Logar. It was open to the primary judge to find that Ms Riches took reasonable care in the circumstances; to find that that there was no safer alternative which a reasonable person in Ms Riches' position would have pursued; to find that the options Ms Riches pursued at the intersection were preferable in the emergency situation in which she was involved; and to consider the social utility of Ms Riches' activity.

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