St Vincent's Hospital Toowoomba Ltd v Hardy
[1997] QCA 364
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- St Vincent's Hospital Toowoomba Ltd v Hardy[1997] QCA 364
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St Vincent's Hospital Toowoomba Ltd v Hardy[1997] QCA 364
St Vincent's Hospital Toowoomba Ltd v Hardy[1997] QCA 364
COURT OF APPEAL
PINCUS JA
MOYNIHAN J
AMBROSE J
Appeal No 7477 of 1997
ST VINCENT'S HOSPITAL TOOWOOMBA LTD Appellant/Defendant
and
BETTE HARDY Respondent/Plaintiff
BRISBANE
DATE 22/09/97
JUDGMENT
PINCUS JA: This is an application for leave to appeal against a judgment of the District Court being one given by His Honour Judge McGill. The Judge was confronted with an action based upon common law negligence and breach of statutory duty for damages for injuries suffered when a lady was climbing steps in a hospital and fell.
The judgment was in the vicinity of $20,000 and that amount does not entitle the applicant to an appeal. Under the pre-existing law it would have been necessary to establish certain conditions before leave could be given but that has been altered by the Courts Reform Amendment Act 1997. That inserts the new section 118 into the District Courts Act 1967 and it is unnecessary, as it seems to me, to read it out in full. The relevant part of it gives this Court power to give leave to appeal in a discretionary way, not being bound by the necessity of finding that there is any important question of law or justice involved.
A question arose as to whether the new provision applies here. That seems to be answered by section 138 of the District Courts Act, which was inserted by section 50 of the 1997 Act. The new section 138 has the effect that in relation to matters in which an application for leave to appeal was made before the commencement of the 1997 Act the old law applies. The 1997 Act came into force on 1 August 1997 and this application was made on 22 August 1997, therefore the transitional provision does not catch this. The implication is, as it seems to me, that the new provision applies, giving this Court a general discretion to grant leave under section 118(3) and the Court is not inhibited by the test which would have been previously applicable.
In the reasons of the primary judge which, in my respectful opinion, are commendable for their care and comprehensiveness, His Honour, as I understand the matter, gave judgment for the plaintiff on the basis of common law negligence and breach of statutory duty. The breach of statutory duty relied on was a breach of section 9 of the Workplace Health and Safety Act 1989 which provides that "an employer who fails to ensure the health and safety at work of all his employees, save where it is not practicable for him to do so, commits an offence against this Act". That provision has been held by this Court (on a concession, actually) to impose a duty in respect of which a civil action could be brought. The 1989 Act has, in fact, been repealed by the Workplace Health and Safety Act 1995. No doubt there may well be actions still to be heard or appeals still to be heard, relating to the old law.
The criticisms which Mr Campbell, who appeared for the applicant before us, has made of the judgment are two, so far as the application for leave is concerned. Mr Campbell contended that on its proper construction the learned primary judge's judgment adopted the view that if there were two reasonably safe systems at work and the employer put into effect the less safe one, that, in itself, was negligent. The basis of that submission was that the judge was confronted with a case in which the plaintiff, now respondent, was injured while moving up some stairs, the injury was of a kind which would not have been sustained if she had used a lift and there was a policy which, to put it broadly, discouraged use of the lift in the circumstances in which the plaintiff was then placed. It seems to me to be arguable that the judgment given by Judge McGill does raise the point which Mr Campbell relies on with respect to common law negligence. It may be, however, that Mr Campbell has rather overstated the effect of the judgment. That is a matter which is not necessary to decide here.
With respect to the question of breach of statutory duty, the only criticism which Mr Campbell advanced was that in determining whether section 9, to which I have referred, had any application, the judge should have focused his attention on the question of whether or not an injury of the kind which was sustained was reasonably foreseeable. If that is right, then there was an error because what His Honour looked at was whether or not there was some identified act or omission on the part of the defendant which would have avoided the injury.
It is unnecessary for me to determine whether or not there is much in the criticism which Mr Campbell has advanced and sufficient to say that the matter may be arguable. The case is one which is rather troubling, because the amount involved is not large and neither of the contentions which is made by Mr Campbell, seems to me overwhelmingly powerful, although both are arguable.
My conclusion, however, is that leave should be granted, on two bases. One of them is the actual result of the case; while doing something which was done every day by many people, climbing reasonably safe stairs, the plaintiff suffered injury. The result of the case is that she has been compensated for that, which is, to put the matter neutrally, a little unusual; that in itself suggests that there may be questions of principle lurking in the suit. The second reason why I would be inclined to grant leave is that there is very little authority about the effect of section 9 of the Workplace Health and Safety Act 1989 and it might well be that there are a number of cases which are affected by the question which Mr Campbell would agitate in the appeal.
Therefore, on balance, my inclination would be to grant leave to appeal. That is, I would, for myself, order that the application for leave to appeal be granted and that the costs of the application be costs in the appeal.
MOYNIHAN J: I agree.
AMBROSE J: I agree.
PINCUS JA: Those will be the orders.