Metropolitan Ambulance Service v State of Victoria
[2002] VSC 222
•12 June 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5631 of 2000
| DAMIEN KELLER | Plaintiff |
| v | |
| METROPOLITAN AMBULANCE SERVICE OF VICTORIA | First defendant |
| STATE OF VICTORIA | Second defendant |
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JUDGE: | Mandie J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22-24, 29 April 2002 | |
DATE OF JUDGMENT: | 12 June 2002 | |
CASE MAY BE CITED AS: | Metropolitan Ambulance Service v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 222 | |
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Negligence—contribution between tortfeasors
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APPEARANCES: | Counsel | Solicitors |
For the First Defendant | Mr M. Wilson | Phillips Fox |
| For the Second Defendant | Mr M Tovey QC with Mr M Grinberg | Victorian Government Solicitor |
HIS HONOUR:
This is a contribution proceeding between two defendants. A compromise between the defendants and the plaintiff, a handicapped person, was approved by order of Master Wheeler on 27 September 2001. The defendants jointly agreed to pay $550,000 plus costs ("the settlement sum") in full settlement of the plaintiff’s claim, without prejudice to the position as between the defendants. Each defendant, by notice of contribution, claims contribution from the other defendant pursuant to s. 23B of the Wrongs Act 1958. The first defendant is Metropolitan Ambulance Service of Victoria (“the MAS”) and the second defendant is the State of Victoria (“the State”). The MAS was sued in respect of the alleged negligence of certain ambulance officers employed by it. The State was sued in respect of the alleged negligence of certain police officers, members of the Victoria Police.
The plaintiff’s amended statement of claim filed 28 July 2000 alleged as follows. On 21 September 1994, the plaintiff was struck on the head with a piece of wood on a number of occasions and struck with a fist a number of times by Sofe Misipalema Tuala (“Tuala”), who was acting in self defence. The incident occurred at Fromer Street, Moorabbin. At all relevant times, the plaintiff (who was born on 7 August 1971) was suffering from a psychiatric illness. As a result of the incident, the plaintiff was allegedly rendered unconscious and suffered intercranial bleeding. Shortly after the incident, ambulance officers attended the scene and examined the plaintiff. Police officers took the plaintiff into custody, placed him in a divisional van and then in the cells at the Moorabbin Police Station. After being in custody for several hours, the plaintiff was taken by ambulance to hospital where he received emergency treatment. As a consequence of the custody and the alleged failure to receive timely treatment, the plaintiff’s initial injury was severely aggravated and the plaintiff suffered further injury, loss and damage, including brain damage, loss of cognitive function, impairment of motor function, speech, memory and concentration, epilepsy, psychological suffering, anxiety, depression, nervous shock, a total loss of earning capacity and medical expenses.
The plaintiff alleged that, after his initial injury, the ambulance officers were negligent in their assessment and treatment of him including their failure to ascertain the circumstances and nature of his injury. The particulars of negligence alleged were:
“(a)Failing to ascertain that the Plaintiff had been hit over the head three times with a piece of wood and had been punched several times.
(b)Failing to ascertain that the Plaintiff had been rendered unconscious at the time of the incident.
(c)Failing to ascertain that the Plaintiff shortly prior to the incident did not have the appearance of being under the influence of alcohol or drugs.
(d)Advising the Police officers that the Plaintiff’s condition was such that he was fit to be taken into custody.
(e)Failing to transport the Plaintiff to hospital when they knew or ought to have known that the Plaintiff may have had a serious head injury.
(f)Failing to transport the Plaintiff to hospital when they knew or ought to have known that the Plaintiff had been rendered unconscious at the time of the incident.
(g)Failing to make proper inquiries at the scene of the incident.
(h)Failing to make any or any proper inquiries from the person who struck the Plaintiff about the Plaintiff’s condition prior to the incident and his condition following the incident.
(i)Failing to advise the Police officers to carefully observe the Plaintiff for signs of head injury.
(j)Failing to take reasonable care in making inquiries at the scene of the incident.
(k)Failing to take reasonable care in examining the Plaintiff.
(l)Failing to take reasonable care in advising the Police officers about the Plaintiff’s condition.
(m)Failing to take reasonable care for the safety of the Plaintiff in the circumstances.”
The plaintiff alleged that the police officers were negligent as follows:
“(a) Failing to carefully observe the Plaintiff whilst he was in Police custody.
(b)Failing to arrange for the Plaintiff to be taken to hospital when they knew or ought to have known that the Plaintiff:
(i)had been rendered unconscious during the incident;
(ii)was coherent prior to the incident;
(iii)was incoherent after the incident;
(iv)was bleeding from the nose after the incident;
(v)was incontinent of faeces after the incident;
(vi)had diminished consciousness after the incident;
(vii)had lost consciousness;
(viii)was deteriorating in his conscious state.
(c)Failing to take the Plaintiff to hospital when his condition deteriorated.
(d)Leaving the Plaintiff naked in a cell whilst unconscious and incontinent of faeces.
(e)Failing to examine the Plaintiff.
(f)Failing to obtain prompt medical attention for the Plaintiff.
(g)Failing to take reasonable care for the safety of the Plaintiff during the custody.”
The plaintiff alleged that the cause of the further injuries suffered by him was the said negligence of the defendants. Each defendant now contends that the plaintiff’s injuries were solely caused by the other defendant and that it is therefore entitled to a complete indemnity from the other defendant[1], alternatively each seeks contribution on the basis that the other bore the prime responsibility for the plaintiff’s further injuries.
[1]s.24(2) Wrongs Act 1958.
In addition to the particulars of negligence of the police officers alleged by the plaintiff (set out above), the MAS relied upon a number of additional grounds in seeking contribution, including failing to comply with the relevant Police Operating Procedures.
The State relied upon the following grounds in relation to the MAS:
“1.[the MAS] failed to communicate to Mr Harries [the ambulance officer] that a person at the scene was unconscious or, alternatively, Mr Harries failed properly to appreciate that the [MAS] had so informed him, or, alternatively, Mr Harries did understand that it had been reported that a person at the scene was unconscious.
2.There was a failure at the scene to make adequate enquiries as to:
¨ What blows [the plaintiff] had received;
¨ The effect of the blows upon him;
¨ His state of consciousness before and after he received blows to the heard.
3.There was a failure by the ambulance officers properly to assess and respond in accordance with information provided by police and/or D24 that the Plaintiff had been unconscious.
4.There was a failure by the ambulance officers properly to examine [the plaintiff] so as to exclude the possibility of significant head injury before confirming his fitness to remain in police custody.
5.There was a negligent failure by the ambulance officers to transport [the plaintiff] immediately to hospital.
6.The ambulance officers were negligent in advising the police that:
(i)[the plaintiff] did not require further medical treatment; and
(ii)[the plaintiff] was fit to remain in police custody –
when such advice was inappropriate and not justified.
7.The ambulance officers failed to advise police that [the plaintiff’s] symptoms were possibly those of head injury and that he should immediately be hospitalised in the event of a change to his level of consciousness.”
The basis for assessment of contribution
The amount of the contribution receivable from a person is such as is found by the Court “to be just and equitable having regard to the extent of that person’s responsibility for the damage[2]”.
[2]s.24(2) Wrongs Act 1958.
In Podrebersek v Australian Iron & Steel Pty Ltd[3], a case of contributory negligence, the High Court said:
“The making of an apportionment as between a plaintiff and a defendant of the respective shares in the responsibility for the damage involves a comparison of both culpability, ie. of the degree of departure from the standard of care of the reasonable man and the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”
[3](1985) 59 ALR 529, 532-3.
The same principles apply to contribution as between defendants. It is appropriate to consider both the relevant culpability or blameworthiness of the tortfeasors and the causal potency of their respective acts and omissions[4]. The relative responsibility of the tortfeasors may be a compound of these two factors which will often tend to be interrelated. In the end it is the whole of the relevant conduct of each tortfeasor which must be compared.
[4]See too Davies v Swan Motor Co. (Swansea) Ltd [1949] 2 KB 291; Stapley v Gypsum Mines Ltd [1953] AC 663.
Facts
On 21 September 1994, in the early evening, Tuala, a taxi driver then aged about 43, picked up the plaintiff in Braybrook. The plaintiff said that he wanted to go to Moorabbin. The plaintiff smelled of alcohol, appeared to be drunk and fell asleep in the taxi. It is unnecessary to recount all the details of the journey. Eventually the plaintiff awoke and gave coherent directions to Tuala and the taxi arrived in Fromer Street, Moorabbin. The plaintiff asked Tuala to stop.
The plaintiff then produced a knife and demanded money and the keys to the taxi. Tuala jumped out of the taxi, grabbing the car keys and taking them with him. Tuala ran into the front garden of one of the houses in Fromer Street and the plaintiff followed him. The plaintiff, still holding a knife, directly confronted Tuala and demanded the keys.
Tuala saw nearby a metre-length “stick” which I am satisfied was a piece of wooden fence paling or something similar. He picked up the “stick” in his right-hand and hit the plaintiff once on the head with it (probably on the left side of his head). Tuala testified that he hit the plaintiff “very hard” and that the “stick” broke. Tuala is a very solidly-built man who boxed and played rugby in his younger days. In the witness box he appeared to be a strong individual.
Tuala said that he continued to hit the plaintiff “very hard” (but perhaps not on the head) with the broken half of the “stick”, another three times or so. Then Tuala threw the “stick” away and punched the plaintiff once on the jaw with his right fist. The plaintiff immediately fell to the ground (probably onto the front lawn) and became unconscious. Tuala picked up the unconscious body of the plaintiff by the belt and carried him out of the property and into the street, where he deposited him on the roadway behind the taxi.
One Robertson testified that he drove his car into Fromer Street that evening and immediately saw a car (the taxi) parked on the left-hand side out from the kerb. He saw a man (Tuala) standing behind the taxi. Robertson saw another person (the plaintiff) lying motionless on the road parallel to the gutter. Robertson parked his car, walked over and asked Tuala whether he was okay. Tuala was agitated but gave some account of what had happened and indicated that he had not yet called the police.
Robertson at that stage went off to speak to a man (Pascoe) coming out of a nearby house and may have asked him to call the police. Pascoe came over to look, spoke to Tuala, and then went back into the house and spoke to one Azlin, his housemate. According to Robertson, the plaintiff had still not moved. Azlin then came out of the house and Robertson explained the situation to Azlin, who also to spoke to Tuala.
Tuala then called back to his base and asked them to send the police. At about this point, the plaintiff sat up and said something, according to Tuala, who also testified that the plaintiff had been unconscious for “maybe two minutes”. However Robertson’s evidence was that the plaintiff was unconscious, or at least motionless, for some five to eight minutes and that the plaintiff began moving and struggling to get up while Robertson was talking to Azlin. Robertson’s evidence was to some extent corroborated by Azlin who said that, when he first arrived, he saw the plaintiff groaning and yelling out for help but still lying in the road.
The plaintiff then tried to stand up but he could not do so and eventually he dragged himself by his hands towards the nature strip and into a sitting position but supported by his arms. The plaintiff had also begun to talk, mainly incoherently, but saying something like: “where’s my friends?”.
On 21 September 1994 Senior Constable Toogood was on duty at Moorabbin Police Station. He was in the Moorabbin divisional van with Constable Brooks. At about 7.25 pm he answered a call on the direct line from D24. A police despatch card, kept by D24, records that Pascoe had telephoned D24, informing them that a taxi driver and another person were having a blue and the other person was now unconscious on the ground. A second police despatch card records that Silver Top Taxis had also telephoned D24, informing them that a taxi driver had been attacked by a fare, the fare had produced a knife and the driver was holding the offender. Toogood (now a Detective Senior Constable) testified that he was told by D24 that a taxi driver had been assaulted by a male in Fromer Road, Moorabbin, there was a knife involved “and the person had been unconscious” and the ambulance had also been notified.
The reverse of one of the despatch cards shows that D24 also called an ambulance at 7.25 pm.
Toogood and Brooks arrived at the scene (at about 7.29 pm) and saw Tuala standing behind his taxi and the plaintiff seated in the gutter. By then it was dark but the street was well lit. When the police arrived Tuala, the plaintiff, Robertson, Pascoe and Azlin were present. I am not satisfied that there were any other bystanders who had been there long enough to witness anything of relevance. Robertson spoke briefly to Brooks, gave him his card and then left. As he left, he heard but did not see what he believed to be an ambulance on its way. Azlin gave the police his name and left the scene very shortly after Robertson -- the ambulance had still not arrived. Pascoe (who was not available to give evidence) gave his name to Brooks but his subsequent movements are unclear.
Toogood first had a conversation with Tuala who told him the story of what had happened. Among other things, according to Toogood, Tuala told Toogood that he had struck the plaintiff over the head with a piece of wood which had rendered the plaintiff unconscious for a short time.
Toogood testified that he next went over to the offender (the plaintiff) and informed him that he was under arrest and “gave him his caution and his rights”. The plaintiff was then handcuffed. Toogood said that he observed that the plaintiff's speech was slurred and he smelled of intoxicating liquor. He said that the plaintiff appeared alert but “on some occasions it took a few attempts at asking the question to elicit a correct response”. The plaintiff gave him his name and address, his age (21) and then said that “nothing” had happened. Toogood observed that the plaintiff “had some grazes to his head”, was “coherent” and “alert” but nevertheless appeared to be heavily under the influence of alcohol or a drug.
At about 7.29 pm an ambulance was despatched to the scene from its Moorabbin base. The attending officer was a trainee MICA (Mobile Intensive Care Ambulance) paramedic, Ralf Harries, a person at that time with some 10 years’ general experience as an ambulance officer and 12 months as a trainee paramedic. He was called as a witness. The driver was officer Mitchell. He was not available to give evidence.
Apparently the only information about the case received by Harries from the ambulance despatcher prior to departure and recorded by him on the patient care record was “? stabbing”.
At about 7.36 pm the ambulance arrived at the scene. According to Toogood (who was corroborated in this respect by Brooks):
“When the ambulance arrived I approached them and detailed my observations to them, what I had been informed, that this person had been hit over the head with a piece of wood and had been rendered unconscious and also that he was currently under arrest and in police custody.”
Harries did not have a good recollection of what he was told by the police. He testified:
“... I have some recollection of being given a quick brief by a police officer at the scene as to what actually had occurred prior to us being called.”
Harries also testified that he “had been informed prior to examining the patient that he had been hit about the head by …the taxi driver“.
Harries recorded the following “history” on the patient care record (in substance): “male in his 20s arrested by police re attack on cab driver; cab driver repelled attacker with old piece of fence paling; attacker was then seen to lay on road moving about but unable to arise; witnessed by passer-by who did not believe loss of consciousness occurred.”
Harries did not record that the plaintiff had been hit about the head. His record is also inconsistent with evidence from others in a number of significant respects. For example, it is inconsistent with Toogood’s evidence as to what he told Harries about the plaintiff being rendered unconscious.
The following passage of cross-examination shows the unsatisfactory nature of Harries’ evidence on this aspect:
“Constable Toogood will indicate that he will give evidence that he explained the – or detailed the incident to you – told you that Mr Keller had been hit over the head with a piece of wood and that at some stage prior to the arrival of the police, had been for a short time, unconscious. That’s what he told you, I suggest?---I don’t recall that having been said to me, however I don’t discount it.
Did you discount it at the time?---I can’t say whether I did or did not.
You have made no note of being told that the person had, for some time, been unconscious?---The fact that I made no note indicates to me that either I did not hear the police officer say that or that possibly it wasn’t said. My notes in the PCR specifically say that the attacker was then seen to lay on the road moving about but unable to rise.
That was information you obtained from the passer-by?---I’m not sure where I obtained that from because I mentioned that – the statement by a passer-by, in another sentence.
When you say witnessed by a passer-by, you say that that doesn’t mean that what was witnessed by the passer-by was the man lying on the ground?---I’ve written here, ‘Witnessed by passer-by’.
What you have there is, ‘Attacker was then seen to lay on the road moving about but unable to arise. Witnessed by passer-by who did not believe LOC occurred’. Aren’t you saying there that the passer-by witnessed the attacker lying on the ground unable to move?---No, that sentence starting with, ‘Attacker was then seen to lay on the road’ may be attributed to the comments I attributed to the police earlier on.
What did the passer-by witness?---The passer-by witnessed that he believed in the period of time he had seen the patient, that no loss of consciousness had occurred.
Do you say that the passer-by didn’t give you that information?---No, a passer-by gave me information - - -
No, do you say the passer-by didn’t give you the information a man was laying on the ground but unable to arise?---I cannot be sure who gave me that information.
What did the passer-by look like?---I have no idea, or should I say I have no recall.
Was there more than one passer-by present?---I have no recall.”
It is most unlikely if Harries had heard it said that the plaintiff had lost consciousness, that he would not have recorded that important piece of information and remembered being so informed. I find that Harries did not actually hear either of the policemen (or anyone else) say that the plaintiff had lost consciousness. That does not mean that Toogood did not say something appropriate to Harries about the plaintiff having lost consciousness for a period. He most probably did, although I doubt that the information that Toogood received from an excited Tuala in the short period (approximately seven minutes) before the ambulance arrived and then conveyed to Harries, was in terms as clear or as specific as those which he and Brooks recalled in their evidence.
After speaking to Toogood, Harries turned his attention to the plaintiff who was seated on the kerb and handcuffed. Harries asked the plaintiff for his name but was unable to ascertain his surname. On the patient care record, in the block for surname, Harries subsequently wrote “Unknown male” and for given name he recorded “?Damian”. His examination of the plaintiff was recorded at 7.38 pm (approximately only 2 minutes after the arrival of the ambulance) and the patient care record shows that the call was completed and the ambulance became available for other calls at 7.42 pm – only 4 minutes later. Thus the total time spent by the ambulance crew on this call was a mere 6 minutes (approximately) from arrival to departure.
Harries recorded the plaintiff’s pulse as 68; blood pressure as not taken; his respiratory rate, respiratory effort, skin temperature and skin colour as normal and his best verbal response as inappropriate. Harries further subsequently recorded the following (in substance) in relation to the examination: conscious – making inappropriate comments; pupils equal and reacting; smell of alcohol on breath; nil pain; nil injuries detected apart from a small abrasion on the right temporal scalp; patient made no complaint of any injuries; left to police for transfer to police station.
The final assessment was recorded as: services not required; no emergency care required.
Harries testified that he had especially examined the plaintiff’s head for any injury and concluded that he had not suffered a significant head injury. Harries said that he had also taken into account that a piece of fence picket shown to him by Mitchell was broken and in a poor condition or rotten. Brooks gave evidence that the pieces of the paling were not moved from the crime scene. I do not accept Harries’ evidence that he saw a piece of fence picket. It may be that Mitchell saw it and told Harries that it was in a poor condition or rotten although the evidence that it was in fact in a poor condition or rotten is scant.
It is fair to say that Harries had only a slight recollection of anything apart from, or in addition to, what he had recorded. This is very understandable because the occasion was over seven years ago and lasted only a few minutes. However, in relation to the examination, Harries was prepared to state that the questions which he normally asked of a person in those circumstances were where was he, what time was it and why was he there and that the plaintiff did not give answers indicating that he knew the answers to those questions. Harries testified that not all of the plaintiff’s answers were those that he “would have expected from a person who was completely conscious and with it.” Harries also said that, based on his patient care record, the plaintiff scored 13 out of 15 on the “Glasgow coma score”.
After examining the plaintiff, Harries told the police that it was okay to take the plaintiff into custody and that he did not require any further medical treatment and was fit to remain in custody. The ambulance then left.
All of the police officers that testified emphasised that they had relied upon the advice of the ambulance officer that the plaintiff did not need medical treatment and was fit to remain in police custody.
As the ambulance left, Toogood and Brooks assisted the plaintiff to walk to the divisional van, as he was unsteady on his feet. He was seated and remained waiting in the van. Additional police arrived (including Detective Senior Constable Steendam) and police investigations continued. At about 8.47 pm, about an hour after the ambulance had left, the plaintiff was conveyed in the van to the Moorabbin Police Station. Steendam returned in another police vehicle. The plaintiff was unsteady and could not walk unsupported. He was observed to have defecated in his trousers. He appeared to be alcohol or drug affected. He was escorted to the holding cell. His handcuffs were removed. He was asked to remove his clothes but he looked blankly at Toogood and another policeman who then removed his clothes for him. They offered him a pair of paper overalls which he declined with a wave of the hand. He was left naked on the floor of the cell (which was well heated). The cell was fitted with a camera and the plaintiff could be observed by the police on one of a number of monitors in the control room area.
Steendam, who was responsible for any questioning of the plaintiff at the police station, observed the plaintiff’s transferral to the holding cell and formed the view that it was not appropriate to interview him. She then telephoned D24 asking that the police medical officer, Dr O’Dell, contact her. This was at about 9.06 pm. Dr O’Dell shortly thereafter telephoned Steendam and she told the doctor generally of the circumstances in which the plaintiff had been arrested, that he had been attended by an ambulance at the scene, that they thought he might be intoxicated and they wanted him assessed to see if he was fit to be interviewed. Dr O’Dell said that he had an urgent matter to attend to at the City Watchhouse and that, after he was clear of those duties, he would attend at Moorabbin. Dr O’Dell said that if the plaintiff deteriorated before he arrived, he should be taken to the hospital.
Constable Street was rostered to perform Watch-house duties that evening. He saw the plaintiff assisted to the cell. He recorded in the Register of Prisoners, in relation to the plaintiff, that he was “very drunk/drugged” and that his apparent injury or illness was “Head injuries suffered after attempting to rob the taxi driver… blood nose.”
Street was told that the police surgeon had been called in relation to the plaintiff’s injuries and he was instructed by Acting Inspector Gallagher to check him regularly. At 9.30 pm Street observed that the plaintiff was in a “coma position” lying on the floor. At 9.40 pm Street opened the door to the cell and talked to the plaintiff. The plaintiff did not reply. He was in the same position. His arms moved. Street observed that he had again defecated.
Street checked the plaintiff again at 9.50 pm, 10 pm, 10.10 pm, 10.15 pm, 10.25 pm (with Gallagher), 10.35 pm, 10.40 pm and 10.45 pm. On each occasion he noted and recorded that the plaintiff was “asleep” and breathing loudly. Nor had the plaintiff moved his position.
About an hour after she had first spoken to Dr O’Dell, Steendam telephoned him and asked him how much longer he was likely to be and that the man had soiled his pants. Either expressly or by the tone of her call, Steendam conveyed to Dr O’Dell some degree of concern concerning the plaintiff.
At about 10.10 pm, Acting Inspector Gallagher, who was responsible for the police district during his shift, entered the plaintiff’s cell. He found the plaintiff “asleep” and “snoring” very loudly and that he had again defecated. Gallagher cleaned him up. The plaintiff did not awake. He appeared to Gallagher to be in a drunken stupor and Gallagher testified that he was not alarmed.
Dr O’Dell arrived at the Moorabbin police station at about 11 pm. He entered the holding cell accompanied by Gallagher and Steendam. The plaintiff appeared to be asleep on the floor and was making a snoring noise. Dr O’Dell found him to be deeply unconscious (ie. unrousable) with slow breathing and pulse and a large area of swelling on one side of his face (in fact, it was the left side). His eyes were of real concern: one eye was fixed and dilated and the other one was a pinpoint, indicating to the doctor some disturbance in the head, such as a blood clot, exerting pressure – he was in a very serious condition. Dr O’Dell ordered an ambulance as soon as possible.
At 11.20 pm the same ambulance arrived. In due course the plaintiff was taken in the ambulance to the Alfred Hospital. At the hospital the plaintiff was found to be suffering from a fractured skull on the left side and, on the same side, an acute extradural haematoma, which caused the brain damage and injuries in respect of which he subsequently sued.
Mr Brazenor's evidence
The MAS called Mr Brazenor, an experienced neurosurgeon and an expert in relation to trauma and head injuries. He expressed the opinion that Harries’ examination of the plaintiff was adequate and that Harries had made a fair decision that it was appropriate for the plaintiff to remain in police custody. He was of the view that a number of matters supported the decision by Harries not to take the plaintiff to hospital, which may be summarised as follows:
(1)Matters relevant to the magnitude of energy imparted to the head:-
· no evidence of a heavy blow to the plaintiff’s head from an examination of his head – no swelling, no large lacerations, no evidence of depressed fracture, no blood from the nose or ear;
· no massive weapon – just a ‘small thing like a rotten fence paling.’
(2) Matters relevant to the patient’s clinical state:-
· no disturbed conscious state, no paralysis of limbs or inability to speak;
· no history of a significant loss of consciousness – relevant because ‘more than a minute or two loss of consciousness gets you to hospital’ (after trauma).
Mr Brazenor said that it was most unlikely that Harries’ inspection of the head would have missed something in the left temporal region that had produced such a large swelling “two” hours later. All of the foregoing factors led Mr Brazenor to express the view that the plaintiff had suffered a further injury to the head, self-inflicted or inflicted by others, in the police cell or at some time after the ambulance had left. The injury was more consistent with a precipitate fall to the ground, or being thrown again a wall, than with a blow from a rotten fence paling.
The cause of the plaintiff's initial injuries
I am satisfied that the probable cause of the plaintiff's fractured skull and haematoma was the first heavy blow to the left side of his head by the fence paling wielded by Tuala, which broke the paling. Other less likely but possible candidates as causes, or contributory factors, are the further blows with the paling, the punch to the jaw and the consequent collapse to the ground that was followed by a loss of consciousness. Mr Brazenor agreed, when the evidence as to Tuala's attack was put to him in cross-examination, that such an attack could cause an intracranial haematoma. These findings are also supported by evidence given by Mr Rosenfeld, the Professor of Neurosurgery at Monash University and Director of Neurosurgery at the Alfred Hospital. I am satisfied that it is more probable than not that the plaintiff's initial injuries occurred as a result of Tuala's actions and at no other time. The suggestion that the injuries occurred later is mere speculation unsupported by the evidence.
Negligence of the MAS
Mr Brazenor's opinion as to the adequacy of Harries' conduct and advice was based on the factual material with which he was supplied and his approach to it. Without intending to be in any way critical of him, it seems to me that the evidence before the Court shows that there were a number of material matters which, when taken into account, lead to a different assessment of Harries' conduct.
The very short time during which the ambulance officers were present has already been mentioned. As I have said, the total time spent by them at the scene was about six minutes. They arrived to find an alleged offender in police custody and quite possibly under the influence of alcohol or drugs. I consider that Harries approached the task with undue haste and with the presumption, provided no serious head injury was found, that the handcuffed offender should remain in police custody.
Harries may have failed to pay sufficient attention to what he was being told by Toogood. More significantly, having been told that the plaintiff had been hit about the head, I find that Harries negligently failed to make adequate or sufficient inquiries of the police or of Tuala about the plaintiff's conscious state immediately after the blow or blows to the head. Instead it appears that he negligently relied on a report from some unidentified bystander. If Harries had ascertained, as he should have, that the plaintiff had lost consciousness for a short time, it is clear that the only appropriate decision would have been to take him to hospital.
However even given his assumption that the plaintiff had not lost consciousness, there were factors present which, I am satisfied, ought to have led Harries to decide that the plaintiff had to go to hospital. In the context of having been struck on the head, the plaintiff's inability to answer simple questions and his unresponsive answers (together with his inability to stand up) raised a real question of impaired consciousness, as Harries conceded in his evidence. In my opinion, Harries was negligent in all the circumstances when he decided that the plaintiff did not need to go to hospital and when he advised the police that the plaintiff was fit to remain in police custody.
Negligence of the police officers
At the outset it is appropriate to mention the Police Operating Procedures which applied at that time to prisoners. They contained general requirements referring to the care and welfare of prisoners and to ensuring that they were safe and well. Of particular relevance were the following requirements in the section on care of prisoners:
“Special Categories of Prisoners
…
Intoxicated prisoners – must, where practicable, be kept apart from other prisoners. Particular care must be exercised when detaining a person who appears intoxicated. Where a person is found in an impaired conscious state or there is the slightest doubt about his or her condition, medical attention must be sought without delay and the Duty Officer notified. See also ‘Welfare’ below.
Injury and Illness
Welfare – the physical well-being of all prisoners must be assessed. The Prisoner Medical Check-list must be referred to in all cases. Particular care must be exercised when detaining a person who appears intoxicated or in an impaired conscious state to establish that the person is not suffering an illness or injury which has symptoms similar to intoxication or drugs. Where a person is found in an impaired conscious state or there is any doubt about their condition medical attention must be sought without delay. For the policy on the transportation of such persons in police vehicles see section 1.3.6, Operating Procedures.
‘Impaired conscious state’ can be defined as an inability to give appropriate verbal responses to questions.
…
Checking of Prisoners
Requirements – all prisoners must be checked at least every four hours including at change of shifts.
Intoxicated and drug affected prisoners – intoxicated or drug affected prisoners and those believed to have other health problems must be checked as often as possible, but at least half hourly during the first four hours of custody. Where a prisoner is awake the check should involve conversation with the prisoner. Where the prisoner is sleeping the member should awaken the prisoner and obtain a verbal response. If the prisoner can not provide a verbal response, medical attention must be sought immediately.
Recording checks – the date, time and identity of a member checking a prisoner or removing a prisoner from the cell areas must be recorded in the Register of Prisoners.
Responsibilities of Watch-house Keeper – during the time that the Watch-house Keeper is on duty, he or she is responsible for checking on prisoners and ensuring that they are safe and well.”
Clearly there were continuing breaches of the Police Operating Procedures in relation to the plaintiff while he was seemingly asleep in the holding cell. As a result of the ambulance officer's advice, the police did not consider that the plaintiff had any serious head injury, but they did believe that the plaintiff was quite possibly intoxicated or drug affected. In those circumstances, the Police Operating Procedures required the responsible police officers to awaken the plaintiff and obtain a verbal response and if he could not provide a verbal response, medical attention had to be sought immediately. In my opinion, it was negligent of the police on each of the occasions when the plaintiff was noted as being "asleep" in the holding cell not to attempt to rouse the plaintiff and obtain a verbal response. The negligence is accentuated by other features which were present and known to police: the fact that the plaintiff had been hit around the head; the plaintiff's earlier loss of consciousness; his nose bleeds; his loss of bowel control on two occasions; and his inability to stand or walk without assistance. Further, I think that it was particularly negligent of Gallagher to make no attempt to rouse the plaintiff when he cleaned him up at about 10.10 pm.
Assessment of contribution
It seems to me that the culpability or blameworthiness of the MAS is perhaps a little greater than that of the police. The ambulance officer, Harries, acted with undue haste, made insufficient inquiries and, in any event, made an inappropriate and imprudent decision on the basis of such observations as were made by him. The police officers were initially reliant upon Harries’ advice. However the police were later involved in a continuous course of negligent conduct, by failing to attempt to rouse the “sleeping” plaintiff, over a period in excess of one hour.
Turning to causation, the medical evidence showed, and indeed it was common ground, that the delay in diagnosis most probably contributed to the plaintiff’s bad outcome because the greater the build-up of pressure on the brain, the greater the injury to the brain.
The evidence was that if the plaintiff had been taken directly to hospital by the ambulance, he may or may not have been scanned immediately. If scanned immediately, his injuries would have been discovered earlier. On the other hand, he may simply have been placed under observation – in that event, his deterioration might still have been picked up earlier than if he had been hospitalised after being found to be unconscious by the police, say at 9.40 pm or later.
Had the police attempted to rouse the plaintiff at each of the inspections from 9.30 pm onwards, there must have been an increasing likelihood with each successive inspection that the plaintiff would not have been rousable or would have failed to make any verbal response, with the result that an ambulance would, or should, have immediately been called.
The question as to when, in various possible circumstances, the plaintiff’s injuries would have been discovered in the absence of negligence of one or other defendant is thus somewhat speculative. It is totally speculative, so far as the evidence goes, to estimate the time by which the plaintiff’s initial injuries needed to be discovered by hospital staff in order to avoid or mitigate the brain damage which he suffered.
It is thus difficult to analyse with any precision the relative causal potency of the negligence of the defendants. However I think that it is relevant to take into account that the police officers would not have had any involvement at all but for the prior negligence of the MAS.
Looking at the conduct of each defendant as a whole and in all the circumstances, I have concluded that, to the extent following, the MAS bears a greater responsibility than the State for the plaintiff's ultimate injuries. I find that it is just and equitable that the contribution of the MAS should be sixty percent of the settlement sum (and of the State, forty percent) and I assess the amounts of contribution accordingly.
I will hear submissions as to the precise orders to be made and as to costs.
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