Queensland lawyers defending public authorities and their insurers have been advised to test using s36 of the Queensland Civil Liability Act as a defence.

Barrister Guy Hampson told an AILA meeting in Brisbane s36 was untested, but invited lawyers to “think about running a s36 defence”.

A similar clause in the NSW legislation had been used effectively in that state, putting NSW public authorities in “a far better position” that those in Queensland. S36 says an act or omission is not “wrongful” unless, in the circumstances, it was “so unreasonable” no similar public authority would consider it reasonable.

Mr Hampson said the adverse decision against the Queensland Government in Kelly “could have gone the other way if it were litigated differently or in NSW”.

“Do Queensland public authorities have a higher duty of care than in NSW or has Queensland law not yet developed to the same extent it has in NSW?”

Irish backpacker Evan Joseph Kelly was seriously injured after diving into a shallow lake on Fraser Island. Queensland Supreme Court Justice Duncan McMeekin found warning signs were inadequate and Kelly was not alerted to the particular danger of running down the dunes and jumping into the water.

Mr Hampson said it was a “tenuous” argument Kelly would have changed his actions had a sign been there, because others were doing the same thing without injuring themselves. “The herd mentality may have played a part.”

He said it was “not clear why s36 was not argued and the same applies in some other Queensland cases”. “It’s got to be worth considering in light of the appellate authority in NSW. It may be a matter for the High Court or legislative intervention.”

Mr Hampson said the High Court decision in Woolworths v Strong showed the ‘but for’ test was still relevant, despite its failings.

Kathryn Strong, who had a below-the-knee amputation and used crutches, was injured when the tip of her crutch slid on a chip on the floor inside a Taree shopping centre in an area occupied by Woolworths. She successfully sued Woolworths but the retailer won on appeal.

The NSW Appeal Court found it could not be concluded that, had there been a proper cleaning system, it was more likely than not the chip would have been removed and Strong would not have slipped. Woolworths had agreed cleaning every 15 minutes would have been appropriate. The Appeal Court said despite the retailer breaching its duty of care, there was “no sufficient causal link between that breach and the fall”.

But a High Court majority overturned that decision, finding the evidence did not permit a finding about when the chip was dropped so the Appeal Court erred in finding the chip had not been on the ground long enough for it to have been detected and removed during a “reasonable” cleaning system, despite the slip occurring at 12.30pm.

Using the ‘but for’ test, it was “more probably than not that Woolworth’s negligence” was responsible for Strong’s fall. Mr Hampson said the High Court determined no reasonable court could decide when the chip was deposited and there was no evidence to back the Appeal Court’s reasoning. “Plaintiffs don’t have to prove when a hazard presented itself,” he said.

With causation, “good old-fashioned evidence will win the day”. The High Court had demonstrated that lawyers and the courts could not “postulate some other theory”.
(Kelly v State of Qld [2013] QSC 106, 30/04/2013)

 

Qld proposes new legislation

Subsequent to Mr Hampson’s AILA presentation, the Queensland Government, on August 20, 2013, introduced into parliament the Nature Conservation and Other Legislation Amendment Bill (No 2) 2013.

AILA Queensland chair and Carter Newell partner Rebecca Stevens and solicitor Jessica Schaffer, in a commentary, said the Bill amended several Acts with a view to limiting the State's exposure to liability in Queensland Parks and Wildlife Service (QPWS) managed areas. “While the Bill is unlikely to operate retrospectively and therefore will not have any impact on the Kelly appeal, the first reading speech indicates the Bill was introduced in direct response to court decisions such as Kelly and the State Government's concerns regarding its growing exposure to more frequent, costly and vexatious personal injury claims,” they said.

The Bill is currently before a parliamentary committee. It proposes a suite of amendments to existing legislation to provide civil liability protection to the State, the minister, the chief executive or any employee or volunteer undertaking their responsibilities for managing QPWS land in any proceeding for damages based on liability for personal injury (including death), damage to property or any resulting economic loss.

Ms Stevens and Ms Schaffer said the proposed amendments provided that State and nominated officials would not be civilly liable in a proceeding for any act or omission, “in relation to the functions of those entities under the relevant Act. This includes acts or omissions which constitute negligence”.

“Parliament, in introducing the Bill, has justified the further protections based on a reported commitment to increase and improve access to national parks and other public lands for recreational and commercial purposes. The first reading speech …acknowledged the government's concern its exposure to large personal injury claims will continue to escalate as a consequence of its commitment to extend access to public land.”

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