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.