State of Queensland v Roane-Spray

This recent decision of the Court of Appeal considered whether the State of Queensland could avoid vicarious liability for the negligence of a paramedic who was employed by the State (while working for the Queensland Ambulance Service) on the basis that the Queensland Ambulance Service was a “prescribed entity” for the purposes of s 27 of the Civil Liability Act 2003. The court held that clear language would be required to construe s 27 as removing the vicarious liability of the State, as an employer, for the negligent acts of its employees, and that on a proper construction s 27 does not apply to the vicarious liability of the State for its employee.

Fraser and Philippides JJA and Bowskill J

20 October 2017

Here, following the respondent’s success at trial in a negligence action brought after she sustained injuries sliding off the collapsed end of an ambulance stretcher, the State appealed the trial judge’s finding that it was not a prescribed entity for the purposes of s 27 of the Civil Liability Act 2003, and accordingly s 27 did not exempt it from liability for the paramedic. [4]–[5]. Section 27(1) of the Act provides:

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–

(a)     the first aid or other aid or assistance is given by the entity while performing duties to enhance public safety; and

(b)     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.

The crux of the State’s argument was that it was entitled to rely upon the statutory defence provided for by the provision since the Queensland Ambulance Service (QAS) is “an emanation of the Crown in right of the State of Queensland”. [16]. Accordingly, it contended that s 27, and sch 2 to the Civil Liability Regulation, must be construed to read the reference to “QAS” (as a prescribed entity) as a reference to the State of Queensland (given it is technically impossible for a plaintiff to sue the “QAS”). [15], [16].

In considering the matter the court noted that the QAS, despite being a prescribed entity under the Civil Liability Regulation 2003, [8] is an unincorporated entity which does not represent the State. [11], [12]. Complicating matters, at the time of the incident the employer of the paramedic was the State, not the QAS. [14]. Relevantly noting “there is no such concept as “Queensland Ambulance Service in right of the State” [17], the court found that the Queensland Ambulance Service, as provided by its current statute, does not represent the State. [19].

Observing that there would need to be very clear language used in order that s 27 might properly be interpreted as removing the vicarious liability of the State, as an employer, for the negligent acts of its employees (see Sargood Bros v The Commonwealth (1910) 11 CLR 258, 279 per O’Connor J; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 341 per Mason ACJ, Wilson and Dawson JJ; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, [30] per Gleeson CJ), it was ordered that the appeal be dismissed with costs. [25].

A de Jersey