Yesterday I would have said I was aware of two cases involving allegations of negligence by a paramedic and/or ambulance service (Ambulance Service of NSW v Worley  NSWCA 102 and Neal v Ambulance Service of New South Wales  NSWCA 346). Today we can add a third, Roane-Spray v State of Queensland  QDC 348 (21 December 2016). (This decision was brought to my attention by solicitor Bill Madden who operates a health law blog – see ‘Paramedic Negligence’ (December 22, 2016) on Bill Madden’s Medical and Health Law Blog).
The plaintiff, Mrs Roane-Spray was on Lamb Island, Moreton Bay when she developed symptoms ‘of possibly having a transient ischaemic attack, a mini stroke’ (). A call was made to triple zero requesting an ambulance. The nearest paramedic was at Russell Island. He was transported to Lamb Island by boat, collected an ambulance that was stored there, and responded to the call. It was agreed that Mrs Roane-Spray would be transported to hospital which involved driving her to the pier, loading her onto the ambulance boat, crossing to the mainland for transport by another ambulance to hospital. The incident the subject of this claim arose when the Lamb Island paramedic was unloading the stretcher, with Mrs Roane-Spray on it, in order to transfer her to the ambulance boat. The first set of wheels attached to the stretcher locked down, but the second set did not, so when the paramedic pulled the stretcher from the ambulance, it tipped and Mrs Roane-Spray slid off suffering head, back and neck injuries.
In this case the facts were contested, ie the plaintiff and the treating paramedic did not agree on what had happened so the judge had to listen to the evidence from everyone including independent witnesses and consider what version of events seemed most likely. There were discrepancies in the paramedic’s version. The accident occurred in 2012 and came on for trial on 6 June 2016. In that time, no doubt, the paramedic had attended many cases and may have had difficulties recalling all the details. The plaintiff patient had probably only been involved in only one emergency response and even if not, the fact that one had left her with injuries would have made it more memorable. There were other witnesses who gave evidence that was consistent with her version of events and she reported to treating doctors at the hospital that she had suffered injuries when being transported by ambulance and her injuries were consistent with her version of events. His Honour said (at -):
A consideration of the combined effect of all of these factors leads me to a conclusion that what actually happened is that, when the paramedic pulled the stretcher out and the second set of wheels did not properly deploy, the head of the stretcher fell to the ground before the paramedic was able to get control of the situation. That is, things happened essentially in the way described by the plaintiff. I therefore reject the paramedic’s evidence as unreliable…
The paramedic conceded that he should not have pulled the stretcher clear of the ambulance without confirming that the wheels near the head of the stretcher had locked into place. That is also what is required by the manufacturer’s instructions, and consistent with Mr Smyth’s evidence [Mr Smyth was the Director of Operations for the Metro South Local Ambulance Service Network]. There was no real dispute on behalf of the defendant that, if events occurred in the way described by the plaintiff, that is if the stretcher was pulled out and the head of the stretcher fell to the ground, this involved negligence on the part of the paramedic, for which the defendant is vicariously liable…
The damages awarded exceeded $550 000.
So far a rudimentary case of negligence. The paramedic owed a duty of care to his patient. A reasonable paramedic would ensure that all the wheels had locked down before finally pulling the stretcher clear of the ambulance as required by standard practice and the manufacturer. Failure to do that was a failure to act with reasonable care leading to liability. From that point of the view the case will be of interest to the readers of this blog, but not legally important. There are however two issues that were raised that warrant further consideration.
Application of an immunity clause
In many other posts, I have referred to ‘good Samaritan’ legislation. Queensland led the way in this field with the Voluntary Aid in Emergency Act 1973 (Qld). That Act was eventually repealed and the relevant provisions moved to Part 5 of the Law Reform Act 1995 (Qld). Section 16 is headed ‘Protection of medical practitioners and nurses and other prescribed persons’ and applies to registered doctors, nurses and or members of a class listed in the regulations. It provides that for those prescribed persons (not just anyone who offers to help) there is no liability if ‘the act is done or omitted in good faith and without gross negligence’ and ‘the services are performed without fee or reward or expectation of fee or reward’.
The Law Reform Act 1995 (Qld) remains on the statute books but is complemented by the Civil Liability Act 2003 (Qld) s 27. That section says:
(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—
(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.
(2) Subsection (1) does not limit or affect the Law Reform Act 1995, part 5.
It can again be noted that the Queensland Act is unlike any other ‘good Samaritan’ Act as it doesn’t apply to everyone who might come to assist, only the entities, and the members of the entities, that are listed in the regulation (see Insurance for First Aiders (August 13, 2014)). Further, unlike the Law Reform Act 1995 and the legislation in other states and territories, the Civil Liability Act 2003 (Qld) does not require that the action is undertaken ‘without fee or reward or expectation of fee or reward’.
I have previously said that despite having had good Samaritan legislation since 1973, I could find no cases where the legislation had been tested or anyone had tried to rely on it. At  the judge also said “I was not told of any decisions on s 27, and I am not aware of any.” This case is now the first case, since 1973, that this provision, or any of the ones like it in the other Australian States and Territories, has been raised as a defence.
Protection under s 27 only applies to ‘…an entity, prescribed [or listed] under a regulation …’ One of the ‘prescribed entities’ for the purposes of s 27 is the “Queensland Ambulance Service established under the Ambulance Service Act 1991.” The problem here was that the Ambulance Service Act 1991 (Qld) s 3A says ‘The Queensland Ambulance Service is established’. Section 3B says:
The service consists of—
(a) the commissioner; and
(b) ambulance officers, medical officers and other staff members employed under section 13.
The Act does not say that the Ambulance service is a legal entity that can sue and be sued in its own name. The Queensland Ambulance Service does not appear to have a separate legal existence but is an administrative unit of government (Administrative Arrangements Order (No. 2) 2016 (Qld)). At  His honour said (emphasis added):
… for the present proceeding, it is common ground on the pleadings that the relevant paramedic was employed by the defendant [ie the State of Queensland… The defendant is therefore vicariously liable for the negligence of its employee. The defendant is an entity properly sued under the Crown Proceedings Act 1980: see s 8. The defendant [ie the State of Queensland] is not an entity listed in Schedule 2 to the Regulation. The short answer to the defence reliance on s 27 is that it does not apply to the liability of State of Queensland in the form of vicarious liability for its employee, the relevant paramedic, and therefore cannot provide a defence.
Had the defendant been ‘The Queensland Ambulance Service’ the result may have been different, but the Queensland Ambulance Service was not sued, and it would appear, cannot be sued.
I have in other posts made comment on the strict use that is made of these clauses in other contexts – see Board of Fire Commissioners v Ardouin (1961) 109 CLR 105; see also RFS Fatal Collision and S 128 of the Rural Fires Act (October 14, 2016). In that post I said:
As Gummow J said … these provisions protect ‘the interests of a statutory authority which is given privileges in the nature of a monopoly for provision of a public service, at the expense of what otherwise would be individual justiciable rights’. Denying the rights of a citizen is something that should only be done with care and clear words so liability exclusion clauses ‘should be strictly construed’
(See also Immunity Clauses, Power And Functions: Is There A Difference? (October 25, 2016) and the discussion that follows the post New Bushfire Legislation In The Northern Territory (December 5, 2016)).
Remember that in this case His Honour had found that Mrs Roane-Spray had been injured due to the negligence of a paramedic and that, as a result, she suffered injuries that were going to require over ½ million dollars of future care and medical treatment. (Only $21 850 was awarded for ‘general damages’ that is pain and suffering and non-economic losses, the balance was for past and future medical care and other expenses, not a windfall gain).
To have extended s 27 protection to the State of Queensland, even though the State was not a prescribed entity for the purposes of the Act, would have been ‘at the expense of what otherwise would be individual justiciable rights’. It would not have saved the paramedics livelihood or home (see the discussion that follows the post A Duty to Provide First Aid to Work Colleagues (December 21, 2016)) as they were never at risk. It would have saved the State of Queensland some money, cost Mrs Roane-Spray lots of money, and shifted at least some of the costs of her treatment and care onto her and her family, other parts of the Queensland Government and the Commonwealth through social security and Medicare. And the state of Queensland, the defendant, was simply not a prescribed entity for the purposes of s 27.
That discussion leads to the issue of vicarious liability which is often discussed here. There was no question that the State of Queensland was liable for the negligence of its paramedic employee. It has been suggested that employers are only vicariously liable if the employee follows every rule and procedure (see Paramedic Registration, Insurance and the Role of an Employer (December 10, 2016)). This case is a clear example to show that this is NOT the case. This paramedic failed to follow the procedures of the service or the instruction manual. That’s not to say he was malicious or deliberately careless or grossly negligent, he made a mistake, he was negligent. And vicarious liability means that it was his employer, the State of Queensland that was liable for the injuries caused. Note too that not only was the paramedic not named as a defendant, at no time in the judgement does His Honour Judge McGill SC mention his name.
This was not personal and there is no value in making claims (as people do) that he wasn’t negligent because he was working ‘one man out’ or he was trying his best. Mrs Roane-Spray was entitled to receive appropriate care from the ambulance service provided by the State of Queensland. No service is perfect so, if in this case, she did not receive the care that she was entitled to expect (not perfect care, just reasonable care) then it was incumbent upon the agency to make good the loss and damage, that was significant.
This is the third case that I’m aware of where a state has been sued over the alleged negligence of a paramedic. In each case the plaintiff won at first instance but in both Ambulance Service of NSW v Worley  NSWCA 102 and Neal v Ambulance Service of New South Wales  NSWCA 346 the decision of the trial judge was set aside by the Court of Appeal. It remains to be seen whether or not Queensland will seek to appeal this decision, perhaps to argue that the judge was wrong in his interpretation of s 27 of the Civil Liability Act.
It is still the case that actions against Australia’s ambulance services are very rare given the number of patients they see each year. This case does not set any special rules in relation to the duty owed by paramedics to their patients. In legal terms, it is significant because, if the judgement stands, it indicates that listing the Queensland Ambulance Service as a protected entity under the Civil Liability Act is meaningless because the Queensland Ambulance Service is not a legal entity that can sue and be sued. It may be that the State of Queensland will seek to challenge that decision or it may just rework the Civil Liability Act.
If I may, the ambulance service i worked for, has a policy of two paramedics attend to the stretcher in order to prevent the fall. When only one paramedic is available, it would not be possible to comply with those guide lines. The Ferno series had a common and well known problem of dropping, hence, a boot is to be placed in front of the wheel to confirm the lock. If two staff were not provided, surely the providing agency would be at some fault by not allowing the paramedic to complete this function as per the skill set number in”the skills book”
An ambulance service may want to send two paramedics but in remote areas that may not be possible. Whether Queensland ambulance had a policy to ensure that ‘a boot is to be placed in front of the wheel to confirm the lock’ we do not know from the judgement. The evidence (at -) was
Let us assume that there was some procedure in place that couldn’t be completed by a single officer so that one might say the QAS was negligent in not providing two officers. The question is what difference would that make? And the answer is none at all. We have to remember that the role of the judge is not to investigate the matter, identify the root cause and make recommendations to avoid future repetition of the event. The judge is there to rule on the issues that are brought to the court by the parties.
In a negligence case it is up to the plaintiff to first define the issues by making an allegation of negligence. The defendant can either admit or deny those allegations. If they allegations are admitted then the case settles or the judge only has to determine the amount of damages. If the allegations are denied (as they were here) then the judge has to determine what happened and whether the facts support the allegations and the legal conclusions. So in this case the plaintiff alleges the paramedic was negligence in the way he handled the stretcher. That becomes the issue for the judge to determine. No-one was going to raise an alternative argument, ie that the negligence fell to QAS for not sending two paramedics. The plaintiff wouldn’t do that because you can’t actually ask a court to review those sort of resourcing decisions, a government agency has the resources it has, so that argument would be very hard for the plaintiff.
And the defendant is not going to raise it because it makes no difference. The defendant was the State of Queensland. The State was going to be liable regardless of whether it was the paramedic or QAS that was found to be negligent. Given the defendant (and more appropriately the defendant’s insurer) would wear the liability in either event trying to allocate responsibility between the paramedic and QAS would make no difference to the outcome.
So even if you’re correct and ‘the providing agency would be at some fault’, that was not a question that the judge was asked to rule on and there was no-one who would be interested in running that argument.
I find this case very interesting as I too have had a stretcher collapse on 2 occasions. Both times the legs appeared to be fully extended and there was an audible ‘click’ as the mechanism engaged. On both occasions I insisted the stretcher was inspected fully and they were both found to be faulty. Colleagues I have worked with have also had such incidents going back many years since the introduction of this particular design of stretcher (I left QAS in early 2014). Not all Paramedics will insist on an inspection as they will assume they have made some error of judgement and in some cases the QAS has insisted it is the Paramedic who is at fault. Perhaps there is more to this and it may not be a simple case of negligence by the Paramedic and sole responsibility of QAS.
In the introduction to this post I said “Yesterday I would have said I was aware of two cases involving allegations of negligence by a paramedic and/or ambulance service (Ambulance Service of NSW v Worley  NSWCA 102 and Neal v Ambulance Service of New South Wales  NSWCA 346)…” When I wrote that I forgot about Metropolitan Ambulance Service v State of Victoria  VSC 222 (12 June 2002) so that makes a total of four cases, not three.
What about the case of neglect against a paramedic working in Alice Springs in 1985 (Crown v Smart) when the paramedic failed to attempt resuscitation of a newborn who was found head first in a toilet after delivery and who also failed to adequately manage the mother?
Mal, thanks for bringing this to my attention, I was not previously familiar with this case. I note that this matter did make its way to the NT Court of Appeal as Peter Raymond Smart, Geoffrey Robert Whatley, Anna Marie Flynn and St. John Ambulance Australia (N.T.) Inc. v Dulcie Stuart (as personal representative of the estate of Jennifer May Shillingworth) (1992) 83 NTR 1 but that decision was all about procedure and how Ms Stuart was identified on the court documents. The judgment has nothing to do with the allegation against the paramedics or the ambulance service so I can’t make any comment on the case. But it does confirm, as Mal suggests, another case where an ambulance service has been sued so we can add one more to the list.
I see a Notice of Appeal was filed on 11 January 2017
Hi. I advise a church group who run public assemblies and as part of the function have a ‘first aid’ area where people can go and get items that are in commercial first aid kits. They also sometimes have members who are paramedics on hand in an off-duty volunteer capacity. What liability would there be for the church or the volunteer paramedic if the volunteer paramedic administered morphine or adrenalin in an emergency situation and the situation go worse? The question was asked for application in QLD. Would your answer be different if it were NSW for example? I was considering suggesting to the church that it would be up to the volunteer paramedic to choose if he wanted to have his own supply of morphine on hand. In my mind I think it would be best if he did not and simply provided whatever help he could until on-call ambulance/paramedics arrived on the scene. Look forward to your reply.
I have responded to this as a separate post – see Restricted drugs in the church first aid kit? (August 22, 2017).
Thank you for your excellent in-depth reply although I hasten to add that at no times are restricted drugs or otherwise available as my client is very much aware of the legal position as respects such drugs. The question was raised by a volunteer and my client wanted to make sure their policy and understanding was correct. Their policy is only what is in a commercial first aid kit is ever present. Nothing beyond that is available.
Again thank you for your assistance.
Daniel Scott. Solicitor for Peake Legal.