Neal v Ambulance Service of New South Wales

The plaintiff, Neal, appealed to the Court of Appeal of New South Wales against a decision dismissing his claim for damages for negligence against the Ambulance Service of New South Wales and the Commissioner of Police. The dispute arose from events where the plaintiff, who was intoxicated, resisted assistance from ambulance officers and was subsequently taken into police custody. The plaintiff alleged that both the Ambulance Service and the police owed him a duty of care, and that this duty was breached, leading to his injuries.

The court was required to determine several key legal issues. Firstly, it considered whether the Ambulance Service breached any duty of care owed to the plaintiff, particularly in relation to advising the police that the plaintiff might require hospitalisation. Secondly, the court examined whether the police breached their duty of care, specifically focusing on the actions of a custody manager in failing to comply with a police protocol concerning intoxicated persons. Central to this was the question of whether the police had a power to require an intoxicated person to undergo medical treatment and the status of any police protocol in this regard. Finally, the court had to assess causation, including whether the plaintiff would have accepted medical assessment and treatment had he been taken to hospital, and whether the police powers under the *Intoxicated Persons Act 1979* (NSW) extended to requiring such treatment.

In its reasoning, the court applied the principles of negligence, including the assessment of duty of care and causation. The court considered the provisions of the *Civil Liability Act 2002* (NSW), particularly section 5D(3), in determining factual causation, which requires a subjective assessment of what the plaintiff would have done. The court also analysed the *Intoxicated Persons Act 1979* (NSW), including the definition of a "responsible person" and the scope of police powers under sections 3 and 5 of that Act. The court found that the police protocol did not create a legal obligation to convey an intoxicated person to hospital, nor did it confer a power to compel medical treatment. The court concluded that the plaintiff had not established a breach of duty by either the Ambulance Service or the police, and that he had failed to demonstrate that any such breach caused his injuries, particularly given the subjective element of causation regarding his willingness to accept medical treatment.

The appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal.