Evans v NSW Ambulance Service

[2004] NSWCA 95

NEW SOUTH WALES COURT OF APPEAL

CITATION:      EVANS v NSW AMBULANCE SERVICE [2004]  NSWCA 95

FILE NUMBER(S):
40010/03

HEARING DATE(S):               24 March 2004

JUDGMENT DATE: 07/04/2004

PARTIES:
Kelly Evans - Appellant
NSW Ambulance Service - Respondent

JUDGMENT OF:       Sheller JA Ipp JA Tobias JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          4426/02

LOWER COURT JUDICIAL OFFICER:     Patten DCJ

COUNSEL:
R W C Royle/M L Holz - Appellant
A C A Bridge SC/S A Beckett - Respondent

SOLICITORS:
Morton & Harris - Appellant
Hicksons - Respondent

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

DECISION:
Appeal dismissed with costs.

JUDGMENT:

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.

The deceased was told that he was required temporarily to relocate to Mungindi in accordance with his appointment, and that the suitability of his posting would be further assessed once an additional medical report was received.  On 5 June 1999, the deceased took up his appointment at Mungindi and was temporarily accommodated in the relief accommodation.  His partner and their child remained in Sydney.

Kelly Evans, the deceased’s de facto partner of three years, commenced proceedings against the respondent, on behalf of herself and her daughter Elisha McEwan, under the Compensation to Relatives Act 1897, alleging that the deceased’s death was caused by the respondent’s negligence or breach of duty of care.

The trial Judge held that there were ample medical facilities available in Mungindi to deal with any emergency arising from the deceased’s asthma and that the communication facilities available at the ambulance station were more than adequate for all reasonable purposes.  Further, the trial Judge found that the asserted inadequacies were not causally related to the deceased’s death.  There was therefore no breach of duty by the respondent and judgment was given for the respondent.

The appellant submitted that the findings of the trial Judge, that there were ample medical facilities in Mungindi and more than adequate communication facilities available at the Mungindi Ambulance Centre, were against the evidence and further, that his Honour was in error when he held that these factors were not casually connected to the death of the deceased.  The appellant also contended that the trial Judge should have found that the respondent was negligent in sending the deceased to Mungindi, with knowledge of the severe nature of his asthma condition, given the cotton dust in the area and the fact that the deceased could be working alone at night.  The appellant also made submissions in relation to the foreseeability of the death of the deceased and the nature of the risk.

Held: per Sheller JA, Ipp and Tobias JJA agreeing:

1. There was nothing to support the proposition that after the appearance of the signs and symptoms of an impending asthma attack, the deceased was incapable of treating himself, obtaining treatment or arranging his transportation to hospital.

1. The evidence suggests that the deceased had significant warning of matters which would, or ought to have, put him on actual notice of the risk he was facing, before it was too late, especially given his training as an ambulance officer.

2. Unfortunately, the deceased did not seek help until 1.35am, by which time he was barely able to speak, and he chose to communicate on a telephone dedicated to incoming 000 calls.  There was equipment available by which the deceased could have communicated immediately with the hospital or with Ms Burnett, the wife of the senior ambulance officer, who was only a few metres away.

3. The state of the medical facilities in Mungindi and the nature of the communication facilities available at the ambulance station did not cause the deceased’s death.  There was also no evidence that the perceived danger of exposure in Mungindi to cotton dust or, what was described as, the deceased’s isolation prior to the time of his death were causally connected to his death.

4. The question was whether, with its knowledge of the deceased’s state of health, the respondent acted unreasonably in response to the risk that the deceased might have an asthma attack. Given the medical and communication facilities available, it was open to the trial Judge to find that the respondent’s response to the risk of the deceased suffering from an asthma attack was a reasonable response.  He did not err in doing so.

Legislation:
Compensation to Relatives Act 1897

Cases cited:
Council of the Shire of Wyong v Shirt (1980) 146 CLR 40

ORDERS

Appeal dismissed with costs.

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40010/03
DC 4426/02

SHELLER JA
IPP JA
TOBIAS JA

Wednesday, 7 April 2004

EVANS v NSW AMBULANCE SERVICE

Judgment

1. SHELLER JA:  This is an appeal from a decision of Judge Patten of 13 December 2002.  On 22 June 1999, at a time between 1.30 am and 2.05 am, Kristopher McEwen Markworth died as the result of an asthma attack while alone in his place of employment as a trainee ambulance officer in the relief accommodation at the Mungindi Ambulance Station. 

2. On 13 September 2001, the deceased’s de facto partner of three years sued the respondent, New South Wales Ambulance Service, on behalf of herself and their daughter Elisha McEwen under the Compensation to Relatives Act 1897 alleging that the deceased’s death was caused by the respondent’s negligence or breach of duty of care.

3. Judge Patten held that the plaintiff had failed to establish any breach of duty by the defendant and gave a verdict and judgment for the defendant.  The plaintiff appeals from this decision.

   Facts

4. The deceased had had a history of asthma since he was a baby.  In March 1998, when he applied for a position with the defendant, the most recent episode was said to be very mild.  He used Ventolin, which he carried, on an average of once a month.  He was described by one doctor as having mild asthma responsive to bronchodilators.

5. On 11 June 1998, he was accepted as a trainee ambulance officer.  By agreement with the defendant he acknowledged that during or after the twelve-month probationary period he might be required to re-locate to any part of New South Wales as the ambulance service deemed necessary.  He was given a location preference list containing five options.  Of these five options he picked Boorowa as first and Mungindi as fourth. 

6. On 1 April 1999 he was advised of his posting to Mungindi.  Shortly after this, while in Sydney, he suffered a severe asthma attack which was precipitated by a fire in his kitchen at home.

7. He was admitted to St Vincent’s Hospital and remained there for a week from 6 to 13 April 1999 under the care of Dr Janet Rimmer.

8. On 20 May 1999, Dr Rimmer wrote to the deceased’s local doctor at Auburn informing him of the treatment given in St Vincent’s Hospital.  The deceased’s asthma management plan was reviewed in light of the fact that he was moving to the northwest of New South Wales as part of his job as an ambulance officer.  This involved, if his peak flow rate dropped below a certain level, doubling his dose of inhaled corticosteroids, or, if this continued, initiating oral corticosteroids and finally if it still continued, seeking medical attention.  The deceased was advised to continue on Pulmicort 400 2bd and Oxis 1 bd as well as Ventolin as needed.  Dr Rimmer suggested the deceased should arrange for review by a physician regarding his asthma at least once or twice per year.

9. After his discharge from hospital the deceased and the plaintiff went to Mungindi to investigate the availability of suitable accommodation.  According to her none was available.

10. On 19 April 1999, the deceased wrote a further letter to the defendant which Judge Patten set out.  In the letter the deceased applied to change his posting from Mungindi.  This was the first time the deceased mentioned his asthma as a ground for not being posted to Mungindi.  He referred to his discharge from hospital for “acute exacerbation of asthma due to inhalation” and said:

    “While in hospital I spent four days in intensive care, which necessitated treatment by both intravenous salbutamol and adrenalin infusions.  My condition also deteriorated to such a level during this time that intubation was considered as the only option on three occasions.  Please find enclosed a letter from Dr Andrew Ng who is the Respiratory Registrar of St Vincent’s to support this.  It has been identified that one of the major causes of this condition is plant dust, accordingly, I should not be overly exposed to these environments for my own health and safety.”

11. The deceased raised fears about the presence of “heavy cotton dust most times of the year at Mungindi”; the lack of medical facilities and the excessive transport time to hospital.  Further he said that the plaintiff was unwilling to travel to Mungindi as she would not have her family support.

12. Dr Ng’s letter of 13 April 1999 said that the deceased had severe asthma which had required two ICU admissions in the last eighteen months for intravenous salbutamol and adrenalin.  “His asthma is triggered by dust and similar environments, and should therefore not be exposed to this.” 

1. On 22 April 1999 the defendant promptly responded making the point that the deceased’s previous letter placed no reliance on the state of his health.  In this letter written by Denny Groth, the Manager of the Employee Relations Unit, the defendant requested the release of the deceased’s medical information.  The writer said:

   “I have also read the letter provided by the Respiratory Registrar, Dr Andrew Ng.  Unfortunately it does not, on its own, provide sufficient information to allow the Service to make an informed decision.  Consequently, I am now requesting that you consent to allowing release of your medical information relating to your asthmatic condition.  I have enclosed a consent form for you to complete and upon receipt, the Medical Director, Dr B A Adelstein will liase with your specialists and provide the Service with an opinion.”

2. The deceased furnished the signed release form immediately.  On 22 April 1999, Mr Groth wrote to Dr Adelstein referring to the deceased and saying:

   “He states that a major factor exacerbating his condition is plant dust and this is briefly supported by a letter from the treating Respiratory Registrar at St Vincents.”

   The letter continued:  “I am writing to TAO Markworth requesting his permission for the release of medical information in order to allow this unit to make a fully informed decision relating to his posting.  Should he consent to the release of this information, it would be appreciated if you could make contact with the treating specialists and Health Quest and provide ERU with an opinion relating to the concerns outlined.”

3. There is no evidence that this opinion was ever provided.  There is in evidence a draft letter apparently to be sent by way of referral to Dr Adelstein in which it is said:  “Mr Markworth now states that as a result of his allergy, it would be dangerous for him to be posted to Mungindi, and has requested instead a posting to Boorowa.”

4. An approach to Superintendent McIlvanie to persuade him to send the deceased to somewhere other than Mungindi resulted in the deceased and the plaintiff being told that if he did not go to Mungindi, in accordance with his appointment, he would be in breach of his contract and could lose his employment.  Sergeant McIlvanie, in this meeting, referred to the fact that another medical assessment had been sought and was awaited.

5. On 5 June 1999, the deceased took up his appointment at Mungindi.  He was temporarily accommodated in the relief accommodation.  Neither the plaintiff nor their child went with the deceased to Mungindi.  They remained in Sydney.

6. The accommodation consisted of a single room, with three beds, a table and chairs etc, a separate bathroom and a small kitchen.  In the compound a few metres away was a building occupied by the senior ambulance officer, Mr Hobday, and his wife, Ms April Burnett.  Mungindi Hospital was a few minutes drive away. 

7. The medical services available at Mungindi consisted of one full time doctor, qualified as MB BS, who was a medical superintendent with the right to private practice, and an emergency service.  The Director of Nursing for Mungindi Health Service in a letter to the plaintiff’s solicitor dated 8 September 2000 stated that:  “the Health Service dealt with patients with asthmatic conditions as part of its service.  Patients would be sent to a referral hospital dependent on triage diagnosis at the time of arrival the Health Service.”

8. The communication facilities at the ambulance station consisted of one dedicated telephone service for incoming emergency services (000) with one handset.  In the bedroom of the relief quarters was another handset for the same dedicated telephone service.  There was a telephone/fax line in three locations, including the relief quarters.  In addition there was a UHF co-ordinated radio and a CB/UHF with access to Mungindi Hospital, the police station and the senior ambulance officer’s residence.

   Events of the night

9. On the night of 21 June 1999, Mr Hobday was away from Mungindi.  His wife was at home in the ambulance officer’s house.  She spoke to the deceased at 5 pm and found him in good spirits.  At 9.30 pm he called his mother asking for prescriptions to be sent “as he had run out”.  Thereafter he remained in the relief accommodation and at some point suffered an asthma attack.  At 1.30 am he telephoned 000 saying amongst other things “Help help help”.  The operator identified the source of the call and contacted Ms Burnett who investigated and called out to the deceased.  When he did not respond she rang the police.  Constable Nicholson of Mungindi arrived at about 2.05 am.  He found the deceased slumped dead over a table with the telephone hand piece in his hand.  Death was recorded as due to asthma.

   Decision

10. Judge Patten set out the particulars of negligence pleaded which were:

    “(a)Failing to devise, institute and maintain a safe system of work.

    (b)Failing to appreciate that, as an asthma sufferer, the Plaintiff would be at greater risk in a station without support staff.

    (c)Notwithstanding being advised that the Plaintiff had recently been hospitalised after an acute asthma attack, failing to arrange a medical examination to determine the Plaintiff’s suitability for a posting at a remote country area.

    (d)Failing to have regard to the appeal against the posting, which had been lodged by the Plaintiff.

    (e)Failing to ensure that all ambulance stations were staffed by two ambulance officers.

    (f)Failing to temporarily locate another probationary officer to Mungindi whilst the Plaintiff’s medical condition was investigated.

    (g)Failing to provide an efficient means of communication to Mungindi Ambulance Station.

    (h)Failing to speedily arrange for medical assistance for the Plaintiff after his call for help.

    (i)Failing to appreciate the need of the Plaintiff for family support in allocating a posting to a remote area with no family accommodation facilities.”

11. The trial Judge found that there were ample medical facilities available in Mungindi to deal with any emergency arising from the deceased’s asthma and that the communication facilities available at the ambulance station were more than adequate for all reasonable purposes.  The asserted inadequacies were not causally connected with the deceased’s death.

12. Judge Patten regarded the gravamen of the plaintiff’s allegations as being an assertion that the defendant should not, having regard to its knowledge of the deceased’s medical condition, have posted him to a town where accommodation was difficult to secure for his partner and child or, at least, should not have done so pending further medical investigation.  As to the difficulty with accommodation, the trial Judge said that the only evidence on that subject was that given by the plaintiff of her one visit to Mungindi.  No other evidence was called as to the availability of rental accommodation in, or around Mungindi.  Nor was it established that the relief accommodation would not have been made available to the deceased’s family while more suitable accommodation was secured.  The trial Judge said:

    “It is difficult to escape the conclusion that the plaintiff for personal reasons, no doubt of some validity, which emerged during her evidence, had simply decided that she would not go to Mungindi.”

    Moreover, his Honour said

    “if the deceased’s partner and child were living in Mungindi, when he was on duty, as he was on the night of his death, he would have been obliged to remain in the Relief Accommodation.  There he would have been but a few metres away from the Ambulance Officer’s House where Mr Hobday and Ms Burnett lived.  Although Mr Hobday was away, Ms Burnett was at home.”

13. His Honour accepted the submission of Mr Bridge SC, for the defendant, that the defendant was obliged to take reasonable care to avoid exposing the deceased to unnecessary risk of injury.  The trial Judge said:

    “In considering whether the act of posting the plaintiff to Mungindi was sufficiently unreasonable as to constitute a breach of its duty, it is first, I think, appropriate to consider whether the tragic death of the deceased was foreseeable.  Despite the undemanding nature of that enquiry, I am inclined to think the question should be answered in the negative.  Although the facts and circumstances of the death of the deceased are not entirely apparent, there seems to have been a very unlikely concordance of circumstances, largely, or wholly (and I mean him no criticism) related to the deceased’s own conduct.  They include his likely failure to recognise the seriousness of his symptoms early enough;  his failure, perhaps, to monitor himself and have on hand appropriate medication as set forth in Dr Rimmer’s letter of 20 May 1999;  his failure to seek timely medical attention at Mungindi Hospital;  his failure to enlist the assistance of Ms Burnett and his, somewhat futile act, far too late, of ringing 000 on the telephone line dedicated to incoming 000 calls.  Possibly, if his partner had been resident elsewhere in the town, things would have been different but one cannot be confident of this.”

14. As far as the defendant was concerned, the trial Judge said that given its knowledge that the deceased was asthmatic and, of course, of the life threatening propensities of asthma, it merely posted him to a town where there were adequate medical facilities, where he would live temporarily, at least, in a compound containing the house of a permanent ambulance officer and his wife and where there was ample means of communication.  His Honour did not think that the defendant, in those circumstances, could reasonably have foreseen the tragedy which was to occur in the early hours of 22 June 1999.  However the trial Judge added:

    “But even if what happened was reasonably foreseeable, in my opinion, the risk was so slight that a reasonable person, in the position of the defendant, was not required to respond to the risk by posting the deceased elsewhere.”

    Accordingly, in the trial Judge’s opinion, the plaintiff had failed to establish any breach of duty by the defendant.

    Appeal

1. The appellant relied upon amended grounds of appeal as follows:

   “1.His Honour’s finding that there were ample medical facilities available in Mungindi to deal with any emergency arising from the deceased’s asthma was against the evidence and the weight of evidence.

   2.His Honour’s finding that the communication facilities available at the Mungindi Ambulance Centre were more than adequate for all reasonable purposes was against the evidence and the weight of evidence.

   2A.His Honour was in error in finding that the allegations of the inadequacy of the medical and communication facilities were not causally connected to the death of the deceased.  His Honour failed to provide reasons for such a finding.

   3.His Honour having found that there were ample medical facilities available in Mungindi and that the communication facilities available in Mungindi were more than adequate, was in error in proceeding to find that such findings reduced the gravamen of the plaintiff’s allegation to an assertion that ‘the defendant should not, having regard to its knowledge of the deceased’s medical conditions, have posted him to a town where accommodation was difficult to secure for his partner and child, or at least, should not have done so pending further medical investigation.’

   4.His Honour was in error in finding that the death of the deceased was not reasonably foreseeable.

   5.His Honour was in error in finding that there was no breach of the duty of care owed by the defendant to the deceased.

   6.His Honour was in error in finding that the risk of harm to the deceased was so slight that a reasonable person, in the position of the defendant, was not required to respond to the risk by posting the deceased elsewhere.”

2. The appellant sought to have the verdict and judgment against her set aside and in lieu thereof a verdict and judgment entered for the plaintiff in relation to the issue of liability and an order that the matter be remitted to the District Court for the assessment of damages.

   Ground 1

3. The appellant acknowledged the trial Judge’s quotation in his reasons for judgment from the 12 June 2001 report of Dr I H Young, Clinical Associate Professor of Medicine and Head of the Department of Respiratory Medicine at Prince Alfred Hospital, in answer to questions directed to him by the plaintiff’s solicitor and Dr Rimmer’s understanding that the medical facilities at Mungindi were adequate.  The appellant made the point that the availability of medical services assumed that the patient was delivered to the hospital.  It was said that the very means by which an asthmatic suffering a severe incapacitating attack, could be transported to hospital was rendered inoperable by the foreseeable incapacity of the deceased.  The absence of an ambulance service caused by the deceased’s own incapacity meant that the medical facilities were not available to the deceased.  It was asserted that the trial Judge failed to acknowledge that an integral part of medical services being available was an effective local ambulance.  There was no effective ambulance once the deceased’s attack of asthma began or at least once it had reached the critical stage.

4. As the defendant pointed out in its submission there was medical evidence before the trial Judge that the deceased would have first suffered symptoms several hours before the 1.35 am 000 phone call.  The deceased would have had symptoms of worsening asthma for at least three hours prior to 1.35 am when the asthma clearly became severely critical.  There was nothing to suggest that the deceased was incapable of taking himself to hospital or seeking such other assistance as he deemed appropriate, at any time, during that three-hour period.  The deceased was a trained ambulance officer who, according to the defendant’s education manual, was trained to recognise the signs and symptoms of an impending asthma attack.

5. Coming to the kernel of this ground of appeal, the defendant argued that no evidence was led, nor was it ever suggested by the appellant, that the medical facilities were inadequate for the Mungindi area in which some residents were undoubtedly asthmatic.  The trial Judge had identified five aspects of the deceased’s conduct which were relevant to his death:

• The deceased’s failure to recognise the seriousness of his symptoms early enough, despite evidence to the effect that he was on notice of his condition for some hours.

• His failure, perhaps, to monitor himself and to have on hand appropriate medication set forth in Dr Rimmer’s letter of 20 May 1999.

• The failure of the deceased to seek timely medical attention at Mungindi Hospital.

• His failure to enlist the assistance of Ms Burnett.

• His somewhat futile act, far too late, of ringing 000 on the telephone dedicated to incoming 000 calls.

1. The defendant submitted that the appellant’s submissions should be rejected.  They suggested that the defendant could only discharge its duty by having the deceased, who was a trained ambulance officer, with knowledge of the symptoms of an impending asthma attack, posted with a permanent observer.  This was unreasonable.

2. The defendant was entitled to assume that the deceased was able to monitor his own condition.  In his evidence, Dr Young said that even in Sydney the result would have been no different given the circumstances of the deceased’s attack, unless there was somebody else actually living with the deceased.  In my opinion, there was nothing to support the proposition that after the appearance of the signs and symptoms of an impending asthma attack the deceased himself was incapable of treating himself, obtaining treatment or arranging his transportation to hospital.  The evidence suggested that he had significant warning of matters which would, or ought to have, put him on actual notice of the risk he was facing before it was too late, especially as his training as an ambulance officer included the recognition of, and identification of the steps to be taken with respect to, the risks associated with severe asthma attacks.  Ground 1 should be rejected.

   Ground 2

3. The appellant submitted that the communication facilities should be regarded in light of the circumstances of their need.  It was said that on the night in question, when 000 was dialled by the deceased, the call was directed to Dubbo Ambulance Radio Room.  The communication system, it was said, failed because an integral part of that system was the victim of a severe asthma attack and there was no alternative communication system in place to deal with an event that the defendant had been alerted to before sending the deceased to Mungindi.  It was said that the trial Judge failed to consider that one of the links in the communication line was the risk of the person who was an essential link in that line being incapacitated.

4. The defendant, in my opinion, correctly submitted that this ground of appeal was without substance.  No matter how many communication devices were available there was always the chance that the deceased would pick the wrong one, namely, the dedicated incoming 000 call line.  If he did so, what occurred would have occurred in any event.  No evidence was put before the court, nor could it be, of an alternative communication system which might have been put in place to deal with the event of the person seeking to communicate being himself incapacitated.  It was incorrect to say that there was no alternative communication system in place.  There was available a two-way radio communication directly to the hospital and the senior ambulance officer’s residence as well as another telephone/fax line.  Ground 2 should therefore be rejected.

   Ground 2A

5. This proceeds on the assumption, which in my opinion is quite unfounded, that the medical facilities were inadequate and that the deceased’s severe asthmatic attack was foreseeable.  The point advanced was that the deceased had no means of communicating to a medical service that could transport him to appropriate facilities or provide those facilities.  That, it was said, was the cause of death.  Placing the deceased in the ambulance quarters for a significant period of time, when the defendant knew of his condition, effectively prevented him from communicating should he have a severe attack affecting his speech.  Such isolation contributed to his death.

6. Unfortunately, the deceased did not seek help until 1.35 am by which time he was barely able to speak and chose to communicate on a telephone dedicated to incoming 000 calls.  There was equipment available by which he could have communicated immediately with the hospital or with Ms Burnett, who was only a few metres away.  The state of medical facilities in Mungindi and the nature of the communication facilities at the ambulance station had nothing to do with the deceased’s death.  Ground 2A should be rejected.

   Ground 3

7. As appears from the appellant’s particulars of negligence, she claimed that the trial Judge should have found the respondent negligent in sending the deceased to Mungindi with knowledge of the danger of doing so because of the deceased’s susceptibility to severe asthma attacks.  Reference was made to the disclosure to the defendant of the deceased’s asthmatic condition, the presence of cotton dust in the atmosphere and the high casualty incident rate of asthma in the Mungindi community and the deceased’s recent treatment at St Vincent’s Hospital for a severe asthma attack.  These matters were brought home to the respondent as evidenced by the letters of Dr Ng and from Denny Groth, the draft letter to Dr Adelstein and the meeting with Superintendent McIlvanie.  The appellant claimed that the respondent, although aware that it might be dangerous because of the deceased’s severe asthma to post him permanently to Mungindi and awaiting a medical report intended to enable the respondent to make a fully informed decision, temporarily posted the deceased to Mungindi in an isolated situation where the deceased could be working alone at night, as he was when he died. 

8. The appellant’s submission emphasised the fact that the deceased was left alone in the relief accommodation.  However, the submission ignored the presence of Ms Burnett a few metres away and ignored what might be regarded as the unexpected and unforeseeable fact that the deceased apparently failed before 1.35 am to take any steps to seek assistance when he would have been expected to have known that an attack was pending.  Further, apparently, he did not have available to him the medication that he had been advised to have available and to use in the case of a severe asthma attack.

9. There was no evidence that cotton or any residue thereof, or any other form of dust, played any part in the asthma attack which led to his death;  see the report of Dr Young.  In short, there was no evidence that the perceived danger of exposure in Mungindi to cotton dust or what was described as his isolation prior to the time of his death were causally connected to his death.  Sadly, his death was explained by the five aspects of his conduct which the trial Judge identified.  This ground of appeal also fails.

   Grounds 4 and 5

10. Reference was made to what Mason J said in The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 at 47-48, namely that a statement that a risk of injury is foreseeable is not a statement as to its probability or improbability but simply that it is not far-fetched or fanciful. A risk of injury extremely unlikely to occur may nevertheless constitute a foreseeable risk. To my mind, in this case, the argument about foreseeability does little to assist the resolution of the plaintiff’s claim. The question is whether, with its knowledge of the deceased’s state of health, the respondent acted unreasonably in response to the risk that the deceased might have an asthma attack. The deceased, although alone in the relief accommodation, had available adequate communication to the hospital and was only a few metres away from the accommodation occupied, at the time, by the wife of the senior ambulance officer. A health centre or hospital capable of dealing with an asthma attack was only a few minutes away. It was clearly open to, and in my opinion correct for, the trial Judge to find that the respondent’s response to the risk of the deceased suffering from an asthma attack was a reasonable response. The appellant failed to demonstrate any breach of the respondent’s duty of care to the deceased.

11. No further argument was run under ground 6.

    Orders

12. In my opinion, the appeal should be dismissed with costs.

13. IPP JA:  I agree with Sheller JA.

14. TOBIAS JA:  I agree with Sheller JA.

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LAST UPDATED:               07/04/2004