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Air Ambulance Service Exonerated
Published in the December 2008 issue of Litigation Notes - View Article
Synopsis: Ontario Superior Court of Justice rules that there is no private law duty of care owed by a public air ambulance service to an injured citizen
In February of 2005 Patrick Heaslip was tobogganing on a ski hill north of Toronto when he was thrown from the toboggan and collided with a tree. He was transported to a local hospital where it was determined that his injuries were so serious that he needed to be transferred by air ambulance to Toronto. A call was placed to the air ambulance dispatcher, who advised that no air ambulance would be available for 2 hours. Consequently, the young man was placed in a land ambulance for transport to Toronto, a trip which would take about 1 hour. Unfortunately he died en route.
The Estate commenced a legal action against the ski hill, the regional hospital, various physicians, as well as the Ontario Ministry of Health, which operates the air ambulance service. On the evening of the accident there were three air ambulance helicopters on duty in Ontario. There were also two others which were out of service, one for maintenance and the other because the pilot has reached his duty hours.
One of the operating helicopters was close to the regional hospital and was carrying a patient with non-life threatening injuries. The ambulance dispatcher was aware that Mr. Heaslip required a higher priority response than one of the patients already on board a helicopter. The Statement of Claim alleged 26 heads of negligence against the Ministry of Health, alleging essentially that the air ambulance service was inadequately operated and staffed, that the aircraft were not properly maintained and that Patrick Heaslip’s case had not been properly prioritized.
The Ministry of Health moved to have the claim dismissed under Rule 21 of the Ontario Rules of Civil Procedure, which permits a claim to be struck where it is “plain and obvious” that it discloses no reasonable cause of action. The Ministry pleaded that there was no private law duty of care owed to Patrick Heaslip. The Court considered the test set out by the House of Lords in Anns v. Merton London Borough Council and later affirmed by the Supreme Court of Canada in the case of Cooper v. Hobart. That test requires firstly that the harm suffered be a foreseeable consequence of the defendant’s act. In this case the Crown conceded that the element of foreseeability of harm had been established.
The second part of the test requires that there be a sufficient degree of proximity between the parties to give rise to a duty of care. In this case the Court found that there was no private law duty of care as between the Crown and Patrick Heaslip: The Minister’s duties “xare owed to the public at large, not to any individual member. Accordingly, there does not exist the necessary proximate relationship. The Minister is invested with the duty and power to ensure the existence throughout Ontario, for the public as a whole, of a balanced and integrated system of ambulance services and communication services used in dispatching ambulances. The Minister has the discretion to use that power for the benefit of the public as a whole in fulfilling the Minister’s mandate. The overall scheme of the statute contemplates that the Minister’s duty of care is not owed to individual members of the public but rather to the public as a whole in respect to the provision of air ambulance services”.
The Court went on to say that in case it was wrong with respect to its conclusion with respect to the duty of care, it would consider whether or not there is a policy consideration which justifies denying liability. On this score as well, the Court concluded that the imposition of the duty of care could lead to potential indeterminate liability and that there are any number of scenarios which could be imagined where a person injured in Ontario could claim entitlement and priority to air ambulance services.
The Court went on to say that there would be a “potential chilling effect on the provision of air ambulance services if the Crown is held to owe a private law duty of care to individuals as opposed to the public as a whole. The imposition of such liability would place the Crown in conflict, not only between individuals themselves, but also in conflict as between individuals and the public as a whole”.
The action against the Ministry of Health was dismissed.
Heaslip Estate v. Mansfield Ski Club Inc., 2008 CanLII 63209