I have previously reported on the decision in Roane-Spray v State of Queensland  QDC 348 – State of Queensland liable for paramedic negligence (December 22, 2016)). In that case the plaintiff was successful in a claim against the state of Queensland based on negligence of a Queensland Ambulance paramedic. The case has now progressed to the Queensland Court of Appeal – State of Queensland v Roane-Spray  QCA 245 (20 October 2017).
The issue was the application of s 27(1) of the Civil Liability Act 2003 (Qld). That section says:
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 Civil Liability Regulation 2014 (Qld) cl 5 and Schedule 2 listed ‘Queensland Ambulance Service established under the Ambulance Service Act 1991’ as a prescribed entity for the purposes of s 27(1). On that basis, the State had sought to rely on s 27(1) to argue that it was not liable given the paramedics conduct was done ‘in good faith and without reckless disregard for the safety of the person in distress or someone else.’
The problem for the State is that the Ambulance Service Act 1991 (Qld) did (in 1991) create a separate legal entity, that is an entity that can sue and be sued, known as Queensland Ambulance Service, but amendments in 2001 removed that separate legal entity. Justice Bowskill (with whom Justices Fraser and Philippides agreed) said (at ):
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.
Further provisions provide that Queensland ambulance officers are employed by the State of Queensland, not by the (non-existent) Queensland Ambulance Service (see ). Because the Queensland Ambulance Service does not exist as a legal entity, the State argued that references to the Queensland Ambulance Service in the Civil Liability Regulations had to mean 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 Court did not agree. Bowskill J said (at -):
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”.
As a matter of policy, it may be accepted as being in the public interest to protect an entity such as the Queensland Ambulance Service, comprising as that does the commissioner and ambulance and medical officers, from litigation and liability where it is performing services to enhance public safety. That is the plain effect of s 27, and the inclusion of the Queensland Ambulance Service in the list of prescribed entities. There would need to be very clear language used before s 27 could appropriately be construed as removing the vicarious liability of the State, as an employer, for the negligent acts of its employees. The device of reading “Queensland Ambulance Service” in schedule 2 to the Civil Liability Regulation as a reference to the State of Queensland is not open on a proper construction of the provisions.
In essence even if it is possible to sue the unincorporated Queensland Ambulance Service and even if the Service in those circumstances could rely on s 27, it still does not mean that the employer of Queensland paramedics – the State of Queensland – could rely on that section when it is being sued on the basis that it is vicariously liable for the conduct of employed paramedics (see the discussion on vicarious liability in Vicarious liability for the actions of fire wardens (March 5, 2016)). As Bowskill J said (at ):
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… Whether the protection of s 27 would be available, in any such hypothetical scenario, would be a question of law… 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.
- The paramedic was negligent.
- The state, not the Queensland Ambulance Service, was the paramedic’s employer and was therefore vicariously liable for that negligence.
- The Queensland Ambulance Service is an entity prescribed for the purposes of s 27(1) of the Civil Liability Act 2003 (Qld) but the Queensland Ambulance Service does not exist as a legal entity and is not the employer or Queensland paramedics so that section provided no defence where the case was against the State of Queensland on the basis that it was vicariously liable for the negligence of an employed paramedic.
- The State of Queensland is not an entity prescribed for the purposes of s 27(1) of the Civil Liability Act 2003 (Qld) so that section provided no defence. The State remained liable and the plaintiff was entitled to the verdict in her favour.