St Vincent's Hospital Toowoomba Ltd v Hardy

[1997] QCA 364

[1997] QCA 364

URT OF APPEAL

NCUS JA
YNIHAN J

BROSE J

peal No 7477 of 1997

VINCENT'S HOSPITAL TOOWOOMBA LTD Appellant/Defendant

d

TTE HARDY	Respondent/Plaintiff
ISBANE DATE 22/09/97

DGMENT
NCUS JA: This is an application for leave to appeal
ainst a judgment of the District Court being one given by
s Honour Judge McGill. The Judge was confronted with an
tion based upon common law negligence and breach of
atutory duty for damages for injuries suffered when a lady
s climbing steps in a hospital and fell.
e judgment was in the vicinity of $20,000 and that amount
es not entitle the applicant to an appeal. Under the
e-existing law it would have been necessary to establish

rtain conditions before leave could be given but that has

en altered by the Courts Reform Amendment Act 1997. That

serts the new section 118 into the District Courts Act

67 and it is unnecessary, as it seems to me, to read it

t in full. The relevant part of it gives this Court power

give leave to appeal in a discretionary way, not being

und by the necessity of finding that there is any

portant question of law or justice involved.

question arose as to whether the new provision applies

re. That seems to be answered by section 138 of the

strict Courts Act, which was inserted by section 50 of the

97 Act. The new section 138 has the effect that in
lation to matters in which an application for leave to
peal was made before the commencement of the 1997 Act the
d law applies. The 1997 Act came into force on 1 August
97 and this application was made on 22 August 1997,
erefore the transitional provision does not catch this.
e implication is, as it seems to me, that the new
ovision applies, giving this Court a general discretion to
ant leave under section 118(3) and the Court is not
hibited by the test which would have been previously
plicable.

the reasons of the primary judge which, in my respectful

inion, are commendable for their care and
mprehensiveness, His Honour, as I understand the matter,
ve judgment for the plaintiff on the basis of common law
gligence and breach of statutory duty. The breach of

atutory duty relied on was a breach of section 9 of the

rkplace Health and Safety Act 1989 which provides that "an

ployer who fails to ensure the health and safety at work

all his employees, save where it is not practicable for

m to do so, commits an offence against this Act". That
ovision has been held by this Court (on a concession,
tually) to impose a duty in respect of which a civil

tion could be brought. The 1989 Act has, in fact, been

pealed by the Workplace Health and Safety Act 1995. No

ubt there may well be actions still to be heard or appeals

ill to be heard, relating to the old law.

e criticisms which Mr Campbell, who appeared for the
plicant before us, has made of the judgment are two, so
r as the application for leave is concerned. Mr Campbell
ntended that on its proper construction the learned
imary judge's judgment adopted the view that if there were
o reasonably safe systems at work and the employer put
to effect the less safe one, that, in itself, was
gligent. The basis of that submission was that the judge
s confronted with a case in which the plaintiff, now
spondent, was injured while moving up some stairs, the
jury was of a kind which would not have been sustained if
e had used a lift and there was a policy which, to put it
oadly, discouraged use of the lift in the circumstances in
ich the plaintiff was then placed. It seems to me to be
guable that the judgment given by Judge McGill does raise
e point which Mr Campbell relies on with respect to common
w negligence. It may be, however, that Mr Campbell has
ther overstated the effect of the judgment. That is a
tter which is not necessary to decide here.

th respect to the question of breach of statutory duty, e only criticism which Mr Campbell advanced was that in termining whether section 9, to which I have referred, had

y application, the judge should have focused his attention

the question of whether or not an injury of the kind

ich was sustained was reasonably foreseeable. If that is
ght, then there was an error because what His Honour

oked at was whether or not there was some identified act

omission on the part of the defendant which would have

oided the injury.

is unnecessary for me to determine whether or not there

much in the criticism which Mr Campbell has advanced and

fficient to say that the matter may be arguable. The case

one which is rather troubling, because the amount

volved is not large and neither of the contentions which

made by Mr Campbell, seems to me overwhelmingly powerful,

though both are arguable.

conclusion, however, is that leave should be granted, on

o bases. One of them is the actual result of the case;
ile doing something which was done every day by many
ople, climbing reasonably safe stairs, the plaintiff
ffered injury. The result of the case is that she has
en compensated for that, which is, to put the matter
utrally, a little unusual; that in itself suggests that
ere may be questions of principle lurking in the suit.
e second reason why I would be inclined to grant leave is

at there is very little authority about the effect of

ction 9 of the Workplace Health and Safety Act 1989 and it

ght well be that there are a number of cases which are
fected by the question which Mr Campbell would agitate in

e appeal.

erefore, on balance, my inclination would be to grant
ave to appeal. That is, I would, for myself, order that
e application for leave to appeal be granted and that the

sts of the application be costs in the appeal.

YNIHAN J: I agree.

BROSE J: I agree.

NCUS JA: Those will be the orders.

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