©The Star (Used by permission)
ARTICLES OF LAW By BHAG SINGH
When an ambulance is involved in an accident, can the injured passengers claim for liability?
ONE visualises an ambulance as a “rescue vehicle” that sends a sick person or someone who is involved in an accident, to the hospital to be attended to or treated expeditiously.
However, there have been several instances when an ambulance that was transporting a person to hospital, was involved in an accident, further injuring the said person and others accompanying him.
A recent report narrates how an ambulance which was sending a 47–year–old man who had suffered a heart attack to hospital, was involved in a crash. The patient was injured and six other persons who were in the ambulance, were hurt, too.
A reader asks whether the ambulance can be sued even though it has merely come to help the patient and assist in sending him to the hospital.
The fact that the ambulance was sending someone to the hospital and that there was a crash which resulted in injuries to the said person and others, are two separate matters. The episode has to be treated as an ordinary accident when it comes to making a claim by those who were injured.
Any claim for damages for injuries suffered and losses arising out of an accident would have to be based on negligence. If it was the negligence of the ambulance driver, then there would be a basis for a claim.
Our law is structured on the basis of fault liability. A right to make a claim only arises if there is any fault on the part of the person who drove the vehicle that caused the accident. So a successful claim against the ambulance requires the driver to be at fault.
If it was totally the fault of another party which resulted in the collision, any claim against the ambulance would not be successful. In such a case, it is the other party or vehicle that would have to bear liability.
Then there are situations in which the ambulance may only be partly to blame. The other party may also have contributed to the accident. In such cases, it is said that there is contributory negligence.
But how would the injured person know who is to blame? After all, they were in the ambulance and would likely not know how the collision came about. However, one thing is certain. The passengers in the ambulance could not have contributed to the collision. It would, in such case, be advisable to sue both the ambulance as well as other vehicle or vehicles.
Who to sue?
As the ambulance is a mere vehicle, whom should the injured party sue? Of course, the driver of the ambulance is the one who would be the person who was negligent unless it was someone else who was at fault.
However, in addition to the driver, the employer who would likely be the owner of the vehicle, would also be liable. This is because in negligence, the law also places responsibility on the employer. This is termed “vicarious liability”.
Those who employ drivers will know that should there be an accident, they would also be liable to pay damages even though they were not in the vehicle.
The employer may have stated expressly in the contract of employment that for all accidents and damage caused or arising in the course of his work, the driver will be personally liable.
This arrangement would only be effective between an employer and the employee. It cannot be relied upon in a claim by a third party. The third party can proceed against the owner as well. It would then be for the owner to institute action against the driver to be indemnified.
The next question that arises is: who is the owner? This is important because though the driver is most of the time known and can be sued, he may not have the ability to meet any judgment obtained. So it is necessary to bring in the owner.
If the ambulance belongs to a government hospital, then it must be noted that a government hospital is, by itself, not a legal entity. Nor is the hospital or health department or the Health Ministry a legal entity. The legal entity in such a case would be the Government of Malaysia. So it is the Government of Malaysia that will have to be sued unless it is a hospital under the state government.
Otherwise the ambulance may belong to a private hospital which is in all probability incorporated as a company. In consequence, the hospital that owns the ambulance will be the party to be sued. This will be on the basis of vicarious liability.
In other cases, an individual or company may be involved in the business of providing ambulance services. The ambulance service may have been contacted by the party requiring the service or arranged by a private hospital that received the call. However, the party that will be liable will be the owner of the ambulance service, whether an individual or a corporate body.
Other than the Government, it is often the case that the vehicle is insured. It is therefore the insurance company that will pay whatever is awarded. However, be that as it may, unless the matter is earlier settled, the action will be in the name of the owner and likely the driver.
Whilst on the subject of insurance claims, it should be noted that the insured party should promptly notify the insurance company about the accident within the specified period. If this is not done, the insurance company may well opt to repudiate liability. This can mean that the insurer may not pay at all or after paying, recover the amount from the insured.