State of Queensland v Roane-Spray [2017] QCA 245

Fraser and Philippides JJA and Bowskill J

The respondent was injured in 2012 when, while being transported on a stretcher by a paramedic, one end collapsed. The respondent successfully brought a claim in the District Court for damages for negligence against the State of Queensland as the employer of the paramedic, on the basis of vicarious liability.

At trial, the appellant contended that it was not liable because of the operation of s 27 of the Civil Liability Act 2003 (Qld). However, the trial judge found that the appellant was not a prescribed entity for the purposes of that section and therefore s 27 did not apply.

The appellant appealed against that finding.

Civil Liability Act

Section 27 of the Civil Liability Act 2003 (Qld) relevantly provides:

(1) Civil liability does not attach to an entity, prescribed under a regulation, that provides services to enhance public safety in relation to an act done or omitted in the course of rendering first aid or other aid or assistance to a person in distress if –

  • the first aid or other aid or assistance is given by the entity while performing duties to enhance public safety; and
  • the first aid or other aid or assistance is given in circumstances of emergency; and (c) the act is done or omitted in good faith and without reckless disregard for the safety of the person in distress or someone else.

Status of the Queensland Ambulance Service

As originally enacted, the Ambulance Act 1991 (Qld) characterised the Queensland Ambulance Service (“QAS”) an unincorporated entity but was amended in 1997 which relevantly characterised the QAS as a body corporate. However, the legislation was further amended in 2001 which reverted the status to the QAS to its original unincorporated form. Bowskill J went on to state:

[12] Significantly, the Queensland Ambulance Service, in its present form (as it was at the time of Ms Roane-Spray’s injury) is not a body corporate, and does not represent the State. It is an unincorporated body, an entity within the meaning of that term in schedule 1 to the Acts Interpretation Act 1954 (Qld), which consists of the commissioner, ambulance officers, medical officers and other staff members employed under s 13, from time to time. It is in that respect similar to an unincorporated club or association, which is comprised of its members from time to time.

[15] On this appeal, the State argues that it is entitled to the protection of s 27 because, in essence, the Queensland Ambulance Service is an emanation of the Crown in right of the State of Queensland.

[16] The State argues that s 27, and schedule 2 to the Civil Liability Regulation, must be construed to read the reference to “Queensland Ambulance Service” in schedule 2 as a reference to the State of Queensland, because it is not possible for a plaintiff in the position of Ms Roane-Spray to sue the “Queensland Ambulance Service”. The State submitted that where “Queensland Ambulance Service” is referred to in schedule 2 that can only be a reference to the “Queensland Ambulance Service in right of the State”.

[19] … in the case of the Queensland Ambulance Service, as the statute under which it is established presently provides, that is an entity, within the meaning of the Acts Interpretation Act, being an unincorporated body comprising the persons identified in s 3B, as they may be from time to time. It does not represent the State, and is not an emanation of the State.

[20] There is no basis that I can discern for reading “Queensland Ambulance Service”, where it appears in schedule 2 to the Civil Liability Regulation, as “State of Queensland”.

Bowskill J stated that the inclusion of the QAS in the list of prescribed services was a matter of public policy while there would need to be very clear language used before s 27 could be construed to remove the vicarious liability of the appellant, for negligent acts of its employees. Her Honour concluded:

[22] The State’s argument that s 27 would lack utility otherwise is unfounded. There are plainly circumstances in which an unincorporated body such as the Queensland Ambulance Service may be sued, arising from the performance of its functions articulated in s 3D of the Act. It would be a matter for the rules of court to determine how that would be styled in a formal sense. Whether the protection of s 27 would be available, in any such hypothetical scenario, would be a question of law (as to the construction of the prerequisites in s 27) and fact, as to whether the prerequisites, as construed, were met. It may be correct to say that, in the present case, there was no cause of action against the Queensland Ambulance Service itself, but that is explicable by the fact that the claim was brought against the negligent paramedic’s employer, the State, on the basis of vicarious liability. The Queensland Ambulance Service is not the employer, therefore has no vicarious liability.

Bowskill J dismissed the appeal, Fraser and Philippides JJA agreeing with the reasons and orders proposed by her Honour.

David Cormack – Brisbane Barrister & Mediator

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