Goodhue v Volunteer Marine Rescue Association Incorporated [2014] QDC 29

Judge McGinness decided in the defendant’s favour on factual matters, which were determinative of the type of anchor in place and consequences on causation. However, His Honour went on to provide guidance as to how s.39 of the Civil Liability Act 2003 (Qld) may be interpreted in Queensland in respect of volunteers.
Is the defendant vicariously liable for its individual volunteers?
[162] Sections 38 – 43 of the Civil Liability Act 2003 (Qld) (CLA) relevantly provide:
38 Interpretation
(1) In this division—

community organisation means any of the following that organises the doing of community work by volunteers—
(a) a corporation;
(b) a trustee acting in the capacity of trustee;
(c) a church or other religious group;
(d) a registered political party as defined under the Electoral Act 1992 or the Commonwealth Electoral Act 1918 (Cwlth);a public or other authority as defined under section 34;
(e) a parents and citizens association formed under the
Education (General Provisions) Act 2006, chapter 7;
(f) another entity prescribed under a regulation.

community work means work that is not for private financial gain and that is done for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose, and includes making donations of food if the donations are not for private financial gain and are done for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose.

food donor—
(a) means an entity that, in good faith for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose, donates or distributes food with the intention that the consumer of the food will not have to pay for the food; but
(b) does not include—
(i) an entity that directly distributes the food to the consumer of the food; or
(ii) a volunteer. organised includes directed or supervised. possession includes control.
volunteer means an individual who—
(a) does community work on a voluntary basis; or
(b) donates food in the circumstances mentioned in section 39(3).

work includes any activity.
(2) For the purposes of this division—
(a) community work done by a person under an order of a court is not to be regarded as work done on a voluntary basis; and
(b) community work for which a person receives remuneration by way of reimbursement of the person’s reasonable expenses in doing the work is to be regarded as work done on a voluntary basis.

39 Protection of volunteers

(1) A volunteer does not incur any personal civil liability in relation to any act or omission done or made by the volunteer in good faith when doing community work—
(a) organised by a community organisation; or
(b) as an office holder of a community organisation.

(2) A person does not incur any personal civil liability in relation to any act or omission done or made by the person, when donating food in the circumstances mentioned in subsection (3), giving rise to harm resulting from the consumption of the food.
(3) The circumstances are—
(a) that the person donated the food to a community organisation—
(i) in good faith for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose; and
(ii) with the intention that the consumer of the food would not have to pay for the food; and
(b) that the food was safe to consume at the time it left the person’s possession; and
(c) if the food was of a nature that required it to be handled in a particular way to remain safe to consume after it left the person’s possession—that the person informed the community organisation of the handling requirements; and
(d) if the food only remained safe to consume for a particular period of time after it left the person’s possession—that the person informed the community organisation of the time limit.

40 Liability not excluded for criminal acts

This subdivision does not confer protection from personal liability on a volunteer in relation to an act or omission of the volunteer if it is established (on the balance of probabilities) that at the time of the act or omission the volunteer was engaged in conduct that constitutes an offence.

41 Liability of intoxicated volunteer not excluded

The protection from personal liability conferred on a volunteer by this subdivision in connection with any community work does not apply if the volunteer—
(a) was intoxicated when doing the work; and
(b) failed to exercise due care and skill when doing the work.

42 Liability of volunteer not excluded if acting outside scope of activities or contrary to instructions

This subdivision does not confer protection on a volunteer from personal liability in relation to an act or omission of a volunteer if the volunteer knew or ought reasonably to have known that he or she was acting—
(a) outside the scope of the activities authorised by the community organisation concerned; or
(b) contrary to instructions given by the community organisation.

43 Liability not excluded if insurance required

This subdivision does not confer protection from personal liability on a volunteer if the liability is a liability that the volunteer is required under a written law of the State to be insured against.

[163] Section 39 is subject to a number of exceptions, none of which apply to this case.
[164] It is not in dispute between the parties that the VMR witnesses were volunteers for the defendant, and the defendant is a community organisation. The work undertaken by Mr Tune, Mr Pomas and the other volunteers was work done, not for private financial gain but for the purpose of providing safety and rescue services.
Plaintiff’s submissions
[165] The plaintiff submits the defendant is vicariously liable for the acts of its volunteers under s 39 of the CLA on the basis that the CLA is directed specifically at the individual volunteers and not the volunteer organisation. The plaintiff submits the legislature would have expressly made provision for the immunity to extend to community organisations if that was the legislature’s intention.
[166] The plaintiff submits that the court must determine whether the defendant is liable for an independent breach or whether it is only liable through the breach of its volunteers. The plaintiff submits there are two independent breaches by the defendant in the present case, one at the hand of the volunteers who committed the breach and a separate breach by of the defendant.
The defendant’s submissions
[167] The defendant submits that, in circumstances where liability of the volunteers of the defendant is protected under the s 39 of the CLA, then liability against the defendant (being vicariously liable for the acts of its volunteers) does not attach. The defendant notes that corresponding legislation in s 61 of the Civil Liability Act 2002 (NSW) is in essentially the same terms as s 39 of the CLA.
[168] The defendant relies on the decision of the New South Wales Court of Appeal in
Commonwealth of Australia v Griffiths119 where it was said:
“there is a long line of authority (in which I include the obiter comments of Fullagher J in Darling Islands Stevedoring and the statements made in Park v The Commonwealth) that a person who is vicariously liable for the tortious conduct of another is protected by any immunity that is available to the actual wrongdoer.”
[169] The defendant submits, in light of the above authority, immunity must extend to those organisations for which volunteers are protected to undertake such work.
[170] The defendant also refutes the plaintiff’s assertion that in this case there are two independent breaches by the defendant, “one at the hand of the volunteers who committed the breach and a separate responsibility of the defendant”.120 The defendant submits the plaintiff’s pleaded case is limited to allegations of negligence relating to the acts of the “authorized agents” of the defendant and vicarious liability as a result.
Consideration
[171] The CLA is silent as to whether the community organisation can be vicariously liable for an individual volunteer. There appears to be no case law in relation to the interpretation of ss 38 and 39 of the CLA.
[172] On its face the section only excludes liability for the defendant’s volunteers. There are two different ways to interpret the section. On one interpretation, it can be read to mean the immunity only applies to the volunteers, that, by implication, it leaves the incorporated associations liable in respect of any negligence of the volunteers. So, effectively, it makes the association liable, rather than the volunteer liable.
[173] The alternative interpretation is that, by excluding the liability of the volunteers, it excludes the vicarious liability of the association.
[174] In my view, the correct interpretation is governed by the New South Wales decision of Commonwealth of Australia v Griffiths121 because it is a decision on the New South Wales equivalent of s 39 of the CLA. The wording of s 61 of the NSW legislation is not sufficiently different from s 39 of the CLA. Because it is a decision of an intermediate court, I should follow it unless persuaded that it is wrong. I am not so persuaded; it seems to be plausibly correct.
[175] On the other hand, the Queensland decision, of Ringlestein v Redford Cattle Company Pty Ltd,122 relied upon by the defendant is concerned with vicarious liability under the former Motor Vehicle Insurance Act 1936 (Qld), and discusses issues of vicarious liability in that context. It decided the meaning of s 4F(3B) under that Act, and is technically obiter. The more recent New South Wales case has the benefit of following High Court decisions determined subsequent to the Queensland decision.
[176] Some of the plaintiff’s allegations against the defendant association seem to involve allegations of negligence in their policies and procedures, and allege the VMR is personally negligent. Negligence on this basis does not give rise to immunity under the Civil Liability Act 2003 (Qld). However, as the defendant correctly submits, the plaintiff did not plead negligence against the defendant on this basis. The plaintiff’s pleadings are limited to allegations of negligence at the hands of the defendant’s authorized agents. In any event, I am not satisfied on balance that the plaintiff has proved the defendant was itself negligent.

119 [2007] NSWCA 370 at [115].
120 Paragraph 125 Plaintiff’s written submissions.
121 [2007] NSWCA 370.
122 [1995] 1 Qd R 433.

David Cormack – Brisbane Barrister & Mediator

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