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REPORT CIVIL
LIABILITY OF GOOD
SAMARITANS AND
VOLUNTEERS |
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(LRC 93 - 2009) © COPYRIGHT Law Reform Commission FIRST
PUBLISHED May 2009 ISSN 1393-3132 |
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LAW REFORM COMMISSION‟S ROLE |
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The Law
Reform Commission is an independent statutory body established by the Law
Reform Commission Act 1975. The Commission‟s principal role is to
keep the law under review and to make proposals for reform, in particular by
recommending the enactment of legislation to clarify and modernize the law.
Since it was established, the Commission has published over 140 documents
containing proposals for law reform and these are all available at www.lawreform.ie.
Most of these proposals have led to reforming legislation. The
Commission‟s role is carried out primarily under a Programme of Law
Reform. Its Third Programme of Law Reform 2008-2014 was prepared by
the Commission following broad consultation and discussion. In accordance
with the 1975 Act, it was approved by the Government in December 2007 and
placed before both Houses of the Oireachtas. The Commission also works on
specific matters referred to it by the Attorney General under the 1975 Act.
Since 2006, the Commission‟s role includes two other areas of activity,
Statute Law Restatement and the Legislation Directory. Statute
Law Restatement involves the administrative consolidation of all amendments
to an Act into a single text, making legislation more accessible. Under the Statute
Law (Restatement) Act 2002, where this text is certified by the Attorney
General it can be relied on as evidence of the law in question. The
Legislation Directory - previously called the Chronological Tables of the
Statutes - is a searchable annotated guide to legislative changes. After the
Commission took over responsibility for this important resource, it decided
to change the name to Legislation Directory to indicate its function more
clearly. |
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MEMBERSHIP |
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The Law Reform Commission consists
of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are: President: The Hon Mrs Justice Catherine
McGuinness Former Judge of the Supreme Court Full-time Commissioner: Patricia T. Rickard-Clarke,
Solicitor Part-time Commissioner: Professor Finbarr McAuley Part-time Commissioner: Marian Shanley, Solicitor Part-time Commissioner: Donal O‟Donnell, Senior
Counsel |
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LAW REFORM RESEARCH STAFF |
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Director of Research: Raymond Byrne BCL, LLM (NUI),
Barrister-at-Law Legal Researchers: Chris Campbell, B Corp, LLB Diop
Sa Gh (NUI) Frances Colclough BCL, LLM (NUI) Siobhan Drislane BCL, LLM (NUI) Claire Murray, BCL (NUI),
Barrister-at-Law Gemma Ní Chaoimh BCL, LLM (NUI) Bríd Nic Suibhne BA, LLB, LLM
(TCD), Diop sa Gh (NUI) Jane O„Grady BCL, LLB (NUI ), LPC
(College of Law) Gerard Sadlier BCL (NUI) Joseph Spooner, BCL (Law with
French Law) (NUI), Dip. French and European Law (Paris II), BCL
(Oxon) Ciara Staunton BCL, LLM (NUI),
Diop sa Gh (NUI) |
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STATUTE LAW RESTATEMENT |
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Project Manager for Restatement: Alma Clissmann, BA (Mod), LLB, Dip
Eur Law (Bruges), Solicitor Legal Researchers: John P Byrne BCL, LLM, PhD (NUI),
Barrister-at-Law Elizabeth Fitzgerald LLB, M.Sc.
(Criminology & Criminal Justice), Barrister-at-Law Catriona Moloney BCL (NUI), LLM
(Public Law) |
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LEGISLATION DIRECTORY |
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Project Manager for Legislation
Directory: Heather Mahon LLB (ling. Ger.),
M.Litt, Barrister-at-Law Legal Researchers: Margaret Devaney LLB, LLM (TCD) Rachel Kemp BCL (Law and German),
LLM (NUI) |
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ADMINISTRATION STAFF |
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Head of Administration and
Development: Brian Glynn Executive Officers: Deirdre Bell Simon Fallon Darina
Moran Peter Trainor Legal Information Manager: Conor Kennedy BA, H Dip LIS Cataloguer: Eithne Boland BA (Hons), HDip Ed,
HDip LIS Clerical Officers: Ann Browne Ann Byrne Liam Dargan
Sabrina Kelly |
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PRINCIPAL LEGAL RESEARCHERS FOR
THIS REPORT |
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Eleanor
Leane LLB, LLM (NUI) Tara Murphy BCL, LLM (Essex) |
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CONTACT DETAILS |
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Further information can be
obtained from: Head of Administration and
Development Law Reform Commission 35-39 Shelbourne Road Ballsbridge Dublin 4 Telephone: +353 1 637 7600 Fax: +353 1 637 7601 Email: Website: |
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ACKNOWLEDGEMENTS |
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The
Commission would like to thank the following people who provided valuable
assistance, and a number of whom attended the Commission‟s Seminar
on Good Samaritans and Volunteers on 20 May 2008: Ms Phil Corcoran, St John‟s
Ambulance Brigade Dr Ciaran Craven, School of Law,
Trinity College Dublin Croi, University Hospital Galway Ms Mary Davis, Chair, Taskforce on
Active Citizenship Dr Joe Galvin, Consultant
Cardiologist, Mater Hospital Cardiology Department Ms Jacinta Hastings, Chief
Executive Officer, Bodywhys Irish Mountain Rescue Association Mr Martin Kirwan, Civil Defence
Board Mr Patick Little, Chief Executive
Office, Migraine Association of Ireland Ms Cliona McCormack, Public
Affairs Executive, Rehab Group Dr Morgan McElligott Ms Sharon McElligott, Murphy
McElligott Ms Yvonne McKenna, Chief Executive
Officer, Volunteer Centres Ireland Muintir na Tire Ms Ellen O‟Malley-Dunlop,
Chief Executive Officer, Dublin Rape Crisis Centre Mr John O‟Neill, Civil
Defence Board Mr Frank Watters, Dundalk IT Full responsibility for this
publication lies, however, with the Commission. |
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TABLE OF CONTENTS |
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TABLE OF LEGISLATION |
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Alabama Code Arkansas Annotated Code California Business and
Professions Code Charities Act 2009 Civil Law (Wrongs) Act 2002 Civil Defence Act 2002 Civil Liability (Amendment) Act
2008 Civil Liability (Good Samaritan)
Amendment Bill 2007 Civil Liability Act 1936 Civil Liability Act 2002 Civil Liability Act 2002 Civil Liability Act 2002 Colorado Revised Statutes Companies Act s1963 to 2006 Delaware Annotated Code Emergency Medical Aid Act 1979 Emergency Medical Aid Act 2000 Fire Services Act 1981 Florida
Statutes 2008 Georgia Code Good Samaritan Act 1996 Good Samaritan Act 2001 Good Samaritan Bill 2005 Hawaii Revised Statutes Idaho Code Illinois Compiled Statutes Kansas Statutes 2005 |
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Law Reform (Miscellaneous
Provisions) Act 1995 Licensing of Indoor Events Act
2003 Maine Revised Statutes Maryland Annotated Code, Courts
and Judicial Proceedings Massachusetts General Laws 2007 Medical Act Medical Practitioners Act 1938 Michigan Compiled Laws Minnesota Statutes 2008 Missouri Revised Statutes 2008 New Jersey Statutes 2007 North Dakota Statutes Occupiers Liability Act 1995 Oklahoma Statutes 2006 Planning and Development Act 2000 Protection for Persons Reporting
Child Abuse Act 1998 Quebec Charter of Human Rights and
Freedoms 1975 Quebec Charter of Human Rights and
Freedoms 1975 Quebec Civil Code Revised Minnesota Statutes 2007 Rhode Island General Laws Road Traffic Act 1961 Safety, Health and Welfare at Work
(General Application) Regulations 2007 Safety, Health and Welfare at Work
Act 2005 Utah Code 2008 Virginia Code 2008 Voluntary Aid in Emergency Act
1973 Volunteer Services Act (Good
Samaritan) 1989 |
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xii |
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Volunteers Liability Act 1988 |
RSPEI 1988, c V-5 |
Can |
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Washington Revised Code
USA Wisconsin Statutes 2007-2008
USA Wrongs (Liability and Damages for
Personal Injuries) (SA)
Aus Amendment Act 2002 Wrongs Act 1936
(SA)
Aus Wrongs Act 1958
No 6420/1958
Aus (V) Wrongs and Other Acts (Public
Liability Insurance No 49/2002
(V) Aus Reform) Act 2002 |
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xiii |
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TABLE OF CASES |
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Alexandrou v Oxford Anns v Merton London Borough
Council Bankstown City Council v Alamdo
Holdings Pty Limited Barnes v Hampshire County Council Barnett v Chelsea and Kensington
Hospital Management Committee Blyth v Birmingham Waterworks
Company Board of Fire Commissioners v
Ardouin Boccasile et al v Cajun Music Ltd Buck v Greyhound Lines Inc Bulman v Furness Railway Company Burke v John Paul & Co Ltd Caparo Industries plc v Dickman Capital and Counties plc v
Hampshire County Council Central Estates (Belgravia) Ltd v
Woolgar Clements v Gill Condon v Basi Daborn v Bath Tramways Motor Co
Ltd |
[1978] AC 728
Eng [2005] HCA 46
Aus [1969] 1 WLR 1563
Eng [1969] QB 428
Eng (1856) 11 Ex 781
Eng (1961) 109 CLR 105
Aus 694 A2d 686, 1997 RI Lexis 153
(SC USA Rhode Island) |
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Dahl v Turner |
459 P2d 816 (NM Ct App 1969) |
USA |
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xv |
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Depue v Flateau Donoghue v Stevenson Duff v Highlands and Island Fire
Board Dunne v National Maternity
Hospital Egedebo v Windermere District
Hospital Association Fenton v Thorley & Co Ltd Fletcher v Commission for Public
Works Flynn v United States Gantret v Egerton Gautret v Egerton Gibson v Chief Constable of
Strathclyde Gilmour v Belfast Harbour
Commissioners Glencar Exploration plc v Mayo
County Council Governors of Peabody Donation Fund
v Sir Lindsay Parkinson & Co Ltd Hargrave v Goldman Heaven v Pender Hedley, Byrne & Co v Heller
& Partners Ltd Home Office v Dorset Yacht Co.
Ltd. Horsley v MacLaren Johnson v Rea Johnson v Thompson Motors of
Wykoff |
USA Eng Scot Irl Can |
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(1963) 110 CLR 40
Aus [1881-1885] All ER Rep 35
Eng [1964] AC 465
Eng [1970] AC 1004
Eng [1970] OR 487
Can [1961] 1 WLR 1400
Eng (No C1-99-666 2000 WL 136076) Minn USA Ct App 2 February 2000 |
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xvi |
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OLL Ltd v Secretary of State for
Transport Osterlind v Hill Overseas
Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No
1)) The People (Attorney General) v
Dunleavy Phillips v Durgan Purtill
v Athlone UDC Roche v Peilow Rohan Construction Ltd v Insurance
Corporation of Ireland Ltd Securities Trust Ltd v Hugh Moore
& Alexander Ltd |
[1997] 3 All ER 897 (1928) 263 Mass 73 [1961] AC 388 [1948] IR 95 [1991] ILRM 321 [1968] IR 205 [1986] ILRM 189 [1986] ILRM 373 [1964] IR 417 |
Eng USA Eng Irl Irl Irl Irl
Irl Irl |
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Smith v Lears Smith v Littlewoods Ltd Stovin v Wise Sullivan v Creed Surtees v Royal Borough of
Kingston upon Thames Sutherland Shire Council v Heyman Swenson v Waseca Mutual Insurance
Co. Turbeville v Mobile Light & R
Co Union Pacific Railway Company v
Cappier Velazquez v Jiminez Ward v McMaster Watt v Hertfordshire County
Council Woods v Lowns Yania
v Bigan |
(1945) 70 CLR 256
Aus [1987] AC 241
Eng [1904]
1 IR
488
Irl [1992] PIQR P101
Eng (1985) 157 CLR 424
Aus 653 NW2d 794 (Minn Ct App
2002) USA 221 Ala 91, 127 So 519 (SC
Alabama, USA 1930) 72 P 281 (Kan. 1903)
USA |
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INTRODUCTION |
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A
Request by the Attorney General 1.
On 30 January 2006, the Attorney
General requested the Commission,
under section 4(2)(c) of the Law Reform Commission Act 1975, to make
such recommendations as the Commission considered appropriate for reform of
the law on the following matters: •
Whether the law should be
reformed, by statute, so as to impose a duty on citizens and members of the
caring professions and members of an Garda Síochána or the Defence Forces
(when not engaged in duties in the course of their employment) to intervene
for the purposes of assisting an injured person or a person who is at risk of
such an injury and the circumstances in which such a duty should arise and
the standard of care imposed by virtue of such a duty. •
Whether the law in relation
to those who intervene to assist and help an injured person (Good Samaritans)
should be altered in relation to the existence of a duty of care by such
persons to third parties and/or the standard of care to be imposed on such
persons towards third parties. •
Whether the law in relation
to the duty of care of voluntary rescuers should be altered, by statute, and
if so the nature of such change in that duty and/or standard of care owed by
voluntary rescuers to third parties. •
Whether the duty of care
and/or the standard of care of those providing voluntary services, for the
benefit of society, should be altered by statute and, in particular, whether
in what circumstances a duty of care should be owed by such persons to third
parties and the standard of such care. |
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B
General background and consultation process 2.
The
Attorney General‟s request arose against the immediate background of a Private Members
Bill, the Good Samaritan Bill 2005, which was debated in Dáil Éireann
on 6 and 7 December 2005.1 The 2005 Bill proposed to |
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1
See Vol.611
Dáil Éireann Debates cols.1139-1165 (6 December 2005) and Vol.611 Dáil Éireann Debates
cols.1455-1483 (7 December 2005). |
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provide an
exemption from civil liability for any injury caused by a person (other than
health care professionals acting in the course of their employment) who (a)
provided emergency first aid assistance to a person who is ill, injured or
unconscious as a result of an accident or other emergency; (b) provided
assistance at the immediate scene of the accident or emergency; and (c) had
acted voluntarily and without reasonable expectation of compensation or
reward for providing the services described. The 2005 Bill also proposed that
this exemption would apply unless it was established that the injuries were
caused by the gross negligence of the person. 3.
The 2005 Bill was presented with a view to providing a level of
protection from civil liability for those who volunteer or otherwise
intervene to assist injured persons,
including where defibrillators are used by community and voluntary groups who act as first responders
where cardiac arrest occurs. The debate on the 2005 Bill in Dáil Éireann also
included references to similar Good Samaritan legislation enacted, for
example, in the United States, Canada and Australia in recent years. Giving
the Government‟s response to the 2005 Bill the Minister for Justice,
Equality and Law Reform stated that the Government had decided to refer the legal issues raised to the Law Reform
Commission.2 4.
In November 2007, the
Commission published its Consultation Paper on the Civil
Liability of Good Samaritans and Volunteers,3
which set out its provisional
recommendations on the issues raised in the Attorney General‟s request.
In May 2008, the Commission held a seminar on the Consultation Paper and is
extremely grateful to the participants for their assistance in this respect. This Report sets out the Commission‟s
final recommendations on the issues raised in the Attorney General‟s
request, together with a draft Civil Liability (Good Samaritans and
Volunteers) Bill intended to implement those recommendations. |
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C
Outline of this Report 5.
Chapter 1 sets out the background
to and general policy setting against which the request of the Attorney
General was received. In this regard, the Commission examines the particular
issue of sudden cardiac death and the use of automated external
defibrillators (AEDs), and the more general issue of volunteering and active
citizenship. The chapter concludes by emphasising the importance generally of
active citizenship and volunteerism. 6.
In Chapter 2 the Commission
discusses the concept of a general legal duty to intervene to assist persons
in danger. The chapter examines the |
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2
See Vol.611 Dáil Éireann Debates cols.1158-1159
(6 December 2005) and Vol.611 Dáil Éireann Debates col.1475 (7 December
2005), available at www.oireachtas.ie 3
LRC CP 47-2007, available at www.lawreform.ie.
This is referred to as the Consultation Paper in the remainder of this
Report. Specific references to paragraphs in the Consultation Paper are
preceded by “LRC CP 47-2007.” |
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2 |
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extent
to which current law in Ireland recognises a duty to intervene in specific
circumstances. It also contains a discussion of the position in other States
where a duty to intervene exists. The chapter concludes by setting out the
Commission‟s final recommendations on whether the law should include a
positive duty to intervene in the context of rescue or voluntarism in
general. 7.
Chapter 3 examines the current common law duty of care as
applied to Good Samaritans, voluntary rescuers and voluntary service
providers. The Commission explores the extent to which a duty of care is
likely to arise depending on the category of person intervening and the type
of intervention made. It also examines the issues raised in relation to the
standard of care to be applied to Good Samaritans and volunteers. The
Commission concludes that it is appropriate to set out this duty and standard
of care in legislative form. 8.
Chapter 4 sets out the detail of the Commission‟s
proposed legislation on the civil liability of Good Samaritans and
volunteers, drawing on the content of
comparable legislation enacted in other States. The Commission discusses
the extent to which any proposed legislation in this State should
differentiate between the liability of individuals
as opposed to the liability of organised entities engaged in activities of
benefit to the community. 9.
Chapter
5 is a summary of the Commission‟s recommendations. 10.
The Appendix contains a draft Civil Liability (Good Samaritans and Volunteers) Bill 2009 to give effect to the Commission‟s
recommendations. |
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3 |
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CHAPTER 1
BACKGROUND AND POLICY SETTING |
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A
Introduction 1.01
In this Chapter the Commission
discusses the Attorney General‟s request and the background to
it in a wider policy setting. In Part B, the Commission notes the main features of the Private Member‟s
Bill, the Good Samaritan Bill 2005. In Part C, the
Commission discusses a specific aspect of the wider policy setting, the
prevalence of sudden cardiac death and the use of automated external
defibrillators as a response. In Part D the Commission discusses the wider
policy setting, the importance of volunteering and active citizenship in
Ireland and internationally. In Part E, the Commission draws conclusions on
the impact of this policy setting to its analysis of the Attorney General‟s
request. B
Good Samaritan Bill 2005 1.02
The Attorney General‟s request to
consider the civil liability of Good Samaritans and volunteers arose
following the publication of a Private Member‟s
Bill, the Good Samaritan Bill 2005,1 and the debate on the
Bill in Dáil Éireann in December 2005.2 The Long Title of
the 2005 Bill stated that it proposed “to protect from liability, persons who
act in good faith to provide assistance to a person who is ill or has been
injured as a result of an accident or emergency and for that purpose to alter
the position at common law.” 1.03
The Bill‟s Explanatory Memorandum
stated that, if enacted, it would ensure that those who intervene to give
assistance to others, and who offer this assistance in good faith, could not
be penalised or held liable as a result of their intervention. Health care
professionals acting in the course of their employment were exempted
from the terms of the 2005 Bill.3 Furthermore, any other person |
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1
Bill No. 17 of 2005, available at www.oireachtas.ie 2
See Vol.611 Dáil Éireann Debates cols.1139-1165
(6 December 2005) and Vol.611 Dáil Éireann Debates cols.1455-1483 (7 December
2005), available at www.oireachtas.ie 3
Explanatory Memorandum to the Good Samaritan
Bill 2005. |
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5 |
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who
may have had a “reasonable expectation of compensation or reward” were also
excluded. 1.04
Section 2 of the 2005 Bill proposed to provide an
exemption from civil liability for any injury caused as a result of
negligence in acting or failing to act by a person (other than health care
professionals acting in the course of their employment)4 who: (i)
provided emergency
first aid assistance to a person who was ill, injured or unconscious as a result
of an accident or other emergency; (ii)
provided assistance at
the immediate scene of the accident or emergency; and (iii)
had acted voluntarily and
without reasonable expectation of compensation
or reward for providing the services described. 1.05
The 2005 Bill stated that the exemption would
apply unless it was established that the injury was caused by the gross
negligence of the person. 1.06
It is worth noting that the Good Samaritan
Bill 2005 dealt solely with the question of whether individual Good
Samaritans could be found liable for negligence arising out of an
intervention. It did not consider issues such as the duty or standard of care
pertaining to individuals, whether they are Good Samaritans or volunteers, or
organisations providing assistance to a person in need of such assistance. 1.07
The purpose of the Good Samaritan Bill 2005 was
to protect any person - other than a health care professional - acting in the
course of his or her employment so long as that person had provided first aid
assistance at the immediate scene of the accident or emergency voluntarily
and without expectation of compensation or reward.5 Thus, to the
extent that such activities must be of a medical nature and urgent or
undertaken in the context of an emergency, while at the scene of the accident
or emergency, the proposed scope of the 2005 Bill was limited. In addition,
to the extent that first aid assistance is by nature usually reactive rather
than pre-emptive, the 2005 Bill considered only those situations where the
recipient of the assistance was already ill, injured or unconscious. Good
Samaritans who might render different types
of assistance including pre-emptive assistance and other types of |
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4
Section 2(2) of the 2005 Bill stated that a
health care professional is acting in the course of employment if he or she
is providing emergency health care services or first aid assistance to a
person who is ill, injured or unconscious as a result of an accident or other
emergency, having being summoned or called to provide services or assistances
for payment or reward. 5
Good Samaritan Bill 2005, section 2(1)(a) to (c). |
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6 |
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volunteers
would not have been able to avail of the protections contained in the 2005
Bill. In the Consultation Paper, the Commission also pointed to problems that
might arise with the use of the words “ill” and “injured” contained in
section 2(1)(a) of the 2005 Bill.6 The
Commission observed that it could not always be assumed that a person
described as “ill” or “injured” would require emergency first aid assistance
as opposed to other forms of assistance. 1.08
As was noted in the Consultation Paper,7 the 2005 Bill was presented with a view to
providing a level of protection from civil liability for those who volunteer
or otherwise intervene to assist injured persons, including where
defibrillators are used by community and voluntary groups who act as first
responders where cardiac arrest occurs. The debate on the 2005 Bill in Dáil
Éireann also included references to similar Good Samaritan legislation
enacted, for example, in the United States, Canada and Australia in recent
years. Giving the Government‟s response to the 2005 Bill the Minister
for Justice, Equality and Law Reform stated that the Government had decided
to refer the legal issues raised to the
Law Reform Commission.8 This was followed by
the Attorney General‟s request to the Commission in 2006, which has
already been set out in the Introduction to this Report. The Commission now
turns to examine the wider policy setting against which that request, which
concerns the civil liability of Good Samaritans and volunteers, should be
considered. In Part C, the Commission discusses a specific aspect of the
wider policy setting, the prevalence of sudden cardiac death and the use of
automated external defibrillators as a response. In Part D the Commission
discusses the wider policy setting, the importance of volunteering and active
citizenship in Ireland and internationally. C
The policy setting: (1) sudden cardiac death and
defibrillators 1.09
In terms of the wider policy setting, the Dáil Éireann
debate on the Good Samaritan Bill 2005 discussed in some depth that it
was intended to provide a level of protection from civil liability for those
who volunteer or otherwise intervene to assist injured persons, including
where defibrillators are used by community and voluntary groups who act as
first responders where cardiac arrest occurs. This reflects the increased
reported incidence of sudden cardiac death syndrome in recent years,
particularly among young people (notably those taking part in sports), and
the resulting increased use of automated external defibrillators (AEDs) as a
response to the problem. |
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6
LRC CP 47-2007 at paragraphs 1.26-1.29 7
LRC CP 47-200 at paragraph 3 of the introduction. 8
See Vol.611 Dáil Éireann Debates cols.1158-1159
(6 December 2005) and Vol.611 Dáil Éireann Debates col.1475 (7 December
2005), available at www.oireachtas.ie |
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7 |
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1.10
The 2006 Report of the National Task Force on
Sudden Cardiac Death Syndrome, Reducing the Risk: A Strategic Approach,9 noted that the incidence of sudden cardiac
death in Ireland is very high. The Report estimated that over 5,000 people
die of sudden cardiac death in Ireland each year, many of them young people.10 1.11
The Report recommended a strategy to reduce the
causes of sudden cardiac deaths. The Report emphasised the importance of
timely responses to improving the survival rate of those succumbing to
cardiac arrest and the incidental need for training in life support
techniques. The Report referred to the “golden hour”, that sudden cardiac
death most commonly occurs within one hour of the onset of symptoms. The
Report noted that survival rates following cardiac arrest are directly
related to the period of time that elapses before resuscitation and, in
particular, defibrillation and that the chances of successful defibrillation
decrease with each minute that passes.11 1.12
If a person who has suffered a sudden cardiac
arrest is defibrillated within 5 minutes, survival rates are approximately
50%, and potentially higher with younger patients. If time to defibrillation
is 10 minutes or more, virtually no one survives without cardiopulmonary
resuscitation (CPR). This increases to between 10% and 20% if CPR is used.
Therefore, a speedy and effective response is required if the chances of
survival are to be increased. As a result, the 2006 Report recommended the
roll out of a training programme for health care professionals, occupational
first-aiders and members of the public in Basic Life Support (BLS) and in the
operation of AEDs.12 Noting the importance of volunteer
organisations, the 2006 Report stated that further consideration should be given
to the role of voluntary organisations and the use of their ambulances
particularly in rural communities in order to improve the chances of survival.13 1.13
The 2006 Report therefore attached great
importance to the need for a significant proportion of the population to be
trained in the use of automated external defibrillators (AEDs). The
Commission notes that training in AEDs has |
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9
Department of Health and Children, Reducing
the Risk: A Strategic Approach (Report of the Task Force on Sudden
Cardiac Death, 2006), available at www.dohc.ie. 10
Ibid, at
19. 11
Ibid. 12
Ibid,
at 93-94. 13
Ibid,
at 96. 8 |
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|
been
incorporated into the 2008 FETAC-accredited occupational first aid training
qualification.14 1.14
The 2006 Report also recognised that some
organisations or communities who wished to purchase AEDs, and to develop
subsequent training programmes, had expressed concern over potential civil
liability concerning their use. The 2006 Report noted:15 “Ireland
has no „Good Samaritan‟ law to protect members of the public who go to
the aid of another person. Similarly there is no general legal requirement or
obligation for a lay person to go to the aid of another. Although credible
legal opinion has advised that the likelihood of successful litigation
arising from a „Good Samaritan‟ act is remote,16
the Task Force recommends that the legal situation be reviewed to protect
rescuers from any possible litigation.” 1.15
The Health Service Executive (HSE) has been
involved in implementing the recommendations in the 2006 Report. In its 2008
Report, Continuing to Reduce the Risk: First Progress Report,17 the HSE noted that a great
deal of progress had been made in improving first response to a cardiac
event. This has included the launch of the HSE‟s Cardiac First
Response Guide,18
which provides detailed guidance for local communities and groups who wish to establish a first response team,
including the use of defibrillators. |
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14
See paragraph 2.53, below, discussing the Health
and Safety Authority‟s 2008 Guidelines on First Aid at Places of
Work, available at www.hsa.ie.
See also Byrne, Safety, Health and Welfare at Work Law in Ireland, 2nd
ed (Nifast, 2008), at 554-556. 15
Department of Health and Children, Reducing the
Risk: A Strategic Approach (Report of
the Task Force on Sudden Cardiac Death, 2006), at 104-105, available at
www.dohc.ie. 16
See Craven, “Civil Liability and Pre-hospital
Emergency Care” PHECC Voice (Newsletter of the Pre-Hospital Emergency
Care Council) February 2004, p.5, available at www.phecit.ie. This is a Memorandum
prepared in 2003 by Dr Ciaran Craven BL for the Pre-Hospital Emergency Care
Council, which was also reproduced in: Health Service Executive, Cardiac
First Response Guide (2008), Appendix B, available at www.hse.ie 17
Health Service Executive, Implementation of Sudden
Cardiac Death (SCD) Task Force Report (2006) Recommendations, Continuing
to Reduce the Risk: First Progress Report (HSE, 2008), available at www.hse.ie 18
Health Service Executive, Cardiac First
Response Guide (2008), available at www.hse.ie |
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9 |
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|
Work had
also been done on planning a structure for coordinating first response and
improved resuscitation training around the country and a spatial analysis of
ambulance provision had been carried out resulting in clarity on priority
locations for development. The 2008 Report also noted that the Pre-Hospital
Emergency Care Council (PHECC), the statutory body with responsibility for
training in pre-hospital medical qualifications, had prepared a Guide to the
preparation of a Cardiac First Response Report (CFR Report),19
which would inform the Out of Hospital Cardiac Arrest Register (OHCAR),
instigated in 2007. 1.16
The HSE‟s
2008 Cardiac First Response Guide20 also
reiterated the view in the 2006 Task Force Report that “one of the main
stumbling blocks to communities purchasing AEDs and developing programmes has
been concern over legal indemnity.” The 2008 Guide also noted that
“Ireland has, as yet, no Good Samaritan Act but this is being addressed by
the Law Reform Commission,” pointing out that the Commission had, at that
time, published the Consultation Paper
on the Civil Liability of Good Samaritans and Volunteers21 and was preparing this Report.
Equally, the 2008 Guide reiterated the view expressed in the 2006 Task
Force Report that legal opinion it had obtained in 2003 had concluded that
“should a pre-hospital emergency care provider act in accordance wholly with
their training status and not act in a grossly negligently fashion then it is
unlikely that any litigious claim would be successful.” 1.17
The HSE‟s 2008 Guide also noted
that, while concern over possible civil liability was a real stumbling block
for some communities, the provision of insurance cover for any potential
claims had alleviated this to some extent. The Guide noted that “[a]
number of insurance companies now also offer insurance for trained first
responders involved in first responder programmes.”22 In this
respect, the Guide also pointed out that the Clinical Indemnity Scheme
(CIS) under the auspices of the State Claims Agency covers trained members of
the Emergency Medical Services (EMS) in their duty “and also indemnifies them
for „Good Samaritan‟ acts when in an off-duty capacity.” The Guide pointed
out that the CIS “does not apply to members of the public (including
uniformed personnel, such as fire fighters and the Gardaí) who receive CPR
training only.” |
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19
Pre-Hospital
Emergency Care Council, Cardiac First Response Report (CFR Report)
Completion Guide (2008), available at www.phecit.ie 20
Health Service Executive, Cardiac First
Response Guide (2008), p.31, available at www.hse.ie 21
LRC CP 47-2007. 22
Health Service Executive, Cardiac First
Response Guide (2008), p.31, available at www.hse.ie |
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10 |
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As to
general practitioners (GPs), the Guide noted that the CIS advises GPs
to seek their own cover under their medical malpractice policies. 1.18
The views expressed in the 2006 and 2008
Reports and in the HSE‟s 2008 Guide reflect the views and
comments received by the Commission prior to the publication of the
Consultation Paper and during the consultation period leading to this Report.
In that respect, the Commission is aware that the potential risk of liability presents an obstacle to some community
and voluntary groups who are involved in establishing first responder
programmes, but that the Commission agrees that this is probably a remote
risk and has not represented an insurmountable obstacle. Indeed, the
Commission is also aware from its discussions that the presence of public
sector indemnity provision - such as the Clinical Indemnity Scheme (CIS)
under the auspices of the State Claims Agency - and arrangements for private
insurance cover has greatly assisted in ensuring that there has, in reality,
been fairly widespread development of first responder teams in the State. D
Volunteering and Active Citizenship 1.19
The development of first responder teams - trained in the use of
defibrillators - in response to sudden cardiac death provides a specific
policy setting against which the Attorney
General‟s request must be considered. The Commission is
conscious that a wider policy setting should also be considered in this
respect, the value of volunteering and active citizenship in the State. 1.20
The Commission recognises the importance of volunteering both in Ireland and
internationally. Ireland has a long, rich and diverse history of voluntary work and there is a strong culture of
volunteering among Irish citizens. Similarly, internationally, there
is huge recognition of the role volunteering has to play in the fulfilment of
international obligations. UN General Assembly Resolution 52/17 proclaimed
2001 the International Year of Volunteers. This resolution also underlines the value of volunteerism in many
different fields such as those covered by the Millennium Development
Goals. The UN General Assembly also recognised the responsibility of
governments to develop strategies and programmes to support volunteering at a
national level.23 In 2008, the European Union proposed the launch
of an initiative to create more opportunities
for younger people to volunteer across Europe. 24 |
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23
UN General Assembly Document of 24th Special
Session World Summit for Social Development and Beyond: Achieving Social
Development for All in a Globalising World – UN General Assembly Resolution
s-24/2, annex. 24
See
http://ec.europa.eu/youth/youth-policies/doc30_en.htm |
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11 |
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1.21
The Irish
Government‟s 2000 White Paper on Voluntary Activity25
defines volunteering as “the commitment of time and energy, for the
benefit of society, local communities, individuals
outside the immediate family, the environment and other causes.” The White
Paper emphasised that “voluntary” in this context means activities undertaken
without payment, except for reimbursement of out-of-pocket expenses. 1.22
The Commission notes that volunteering – and the
voluntary sector – involves much more than a handful of individuals engaged
in small activities in the State. Research carried out by the National
College of Ireland indicates that 33% of the adult population volunteered in
some capacity in 199926 and, based on this, the total amount of
time given to voluntary work per year would be equivalent to approximately
96,450 full-time workers.27 The Special Olympics World Summer
Games, held in Ireland in June 2003, involved the recruitment and training of
around 30,000 volunteers in preparation for this event alone. The 2006 Census28
indicated that over 553,000 persons, representing 16.4% of the population
aged 15 and over, were involved in voluntary activity. The 2007 Report of the Taskforce on Active Citizenship29
supported the Census indications that volunteering had not declined in the
period of the Celtic Tiger economy, but that the pattern of participation
might have involved relatively short
activity-specific involvement, such as the Special Olympics.30 In
early |
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25
Department of Social, Community and Family Affairs
White Paper on a Framework for Supporting Voluntary Activity and for
Developing the Relationship between the State and the Community and Voluntary
Sector (2000), available at www.welfare.ie 26
Out of a total population of about 4 million, this
indicates that approximately 1.3 million people volunteered. See
http://www.eu2004.ie/templates/standard.asp?sNavlocator=7,98,113. 27
“Reaching out: charitable giving and volunteering
in the Republic of Ireland”, Ruddle, Helen & Mulvihill, 1999, National
College of Ireland. 28
See Census 2006, Volume 11 – Disability, Carers
and Voluntary Activities available at www.cso.ie 29
Report of the Taskforce on Active Citizenship (2007),
available at www.activecitzen.ie 30
The Report noted that although most people thought
volunteering was declining, when asked about their own organisation only one
half said that it had become more
difficult to recruit new volunteers. The Survey of
Civic Engagement commissioned by the Taskforce showed an apparent increase in
both volunteering and community involvement in the four years since the last
such survey had been conducted in Ireland. |
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12 |
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|
2009, a
102% increase in volunteers registering in Volunteer Centres across the
country was reported, which was attributed to the economic downturn and the rising rates of unemployment affecting Ireland
and most other countries in the world.31 1.23
Volunteering and voluntary activity involve the
provision of essential services in the State, and includes the provision of
social care, childcare, care of older persons, health services, education,
environmental, sport, cultural, advocacy, artistic and other activities. In
that respect, volunteering constitutes a major pillar of Irish society, which
requires high standards of management – and of funding. In recent years,
Government support for the community and voluntary sector has been in excess
of €5 billion per annum.32 This is in addition to the taxation
arrangements concerning contributions to charitable organisations, many of
which are engaged in volunteering activities.33 1.24
Given this importance, it is not surprising that
the Government‟s 2000 White Paper aimed to clarify the
relationship between the Government and the voluntary and community sector
and examined how the Government could provide an enabling framework to help
volunteer activities. The White Paper noted that: “The Irish
Constitution recognises the right to associate. Overall, however, there is an
underdeveloped legal and policy framework in Ireland for the support of
voluntary work and the contexts in which it takes place.”34 1.25
This commitment to support volunteer activity in
Ireland was further strengthened by the establishment of the National
Committee on Volunteering (NCV), which was given responsibility for the task
of developing a long term strategy to promote and expand volunteering in
Ireland. 1.26
In 2002, the NCV published Tipping the
Balance: Report and Recommendations to Government on Supporting and
Developing Volunteering in Ireland”,35
which analysed the voluntary
sector in Ireland and made |
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31
See www.volunteer.ie/news_Increaseinvolunteers2009.htm 32
Speech by Mr John Curran T.D., Minister of State,
for “Give it A Swirl Day,” the National Day of Volunteering, 25 September
2008, available at www.volunteer.ie 33
The Charities Act 2009 sets out the first
comprehensive regulatory framework for the charity sector. 34
Ibid at 13. 35
Report of the National Committee on Volunteering, Tipping
the Balance: Report and Recommendations to Government on Supporting and
Developing Volunteering in Ireland (2002), available at www.volunteer.ie |
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13 |
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|
recommendations
to the Government on how to support and develop volunteering in Ireland. The
2002 Report called for the development of a national policy on volunteering
that would be integrated with other social policies. Protection of volunteers
and financial support should be provided by the State, as well as active
promotion of, and removal of barriers to, volunteering. While the Report
commended the work of individual organisations in developing policies and
procedures, it noted that the development of norms at a national level may be
a more appropriate means of providing guidance to both volunteers and
organisations involving volunteers. 1.27
These Reports recognised the importance of
developing a clear policy framework on volunteering. Other important
developments include the establishment of Volunteering Ireland, the National
Volunteer Development Agency, which promotes volunteering in Ireland,36 and Volunteer Centres Ireland (VCI),37
the national umbrella organisation for volunteer centres. Both Volunteering
Ireland and VCI are funded by the Department of Community, Rural and
Gaeltacht Affairs to ensure that this advice and support would continue. 1.28
In 2005, the European Volunteering Centre (EVC)
published a Country Report on the Legal Status of Volunteers in Ireland,38 in conjunction with the European-wide
Association of Voluntary Service Organisations (AVSO). The 2005 Report observed
that, while policies are in place to support the development of volunteerism,
no volunteer-specific legislation exists in Ireland. In
particular, the Country Report remarked on the absence of legislative norms
relating to the reimbursement of out-of-pocket expenses and the insurance of
volunteers. The Report referred to the recommendation of Volunteering Ireland
that volunteer organisations should draft policies stating, amongst other
things, that volunteers are insured against risks of illness, accident and
third party liability.39 |
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36
See www.volunteeringireland.ie 37
See www.volunteer.ie. The website
explains that volunteer centres act as „brokers‟ between individuals
who wish to undertake voluntary activity and organisations that seek to
involve volunteers. Their primary function is, therefore, to match
individuals and groups interested in volunteering with appropriate volunteering
opportunities and to offer advice and support to volunteers and organisations
through a range of services. 38
Association of
Voluntary Service Organisations & Centre Européen du Voluntariat Country
Report on the Legal Status of Volunteers in Ireland 2005, available at www.cev.be/Legal%20Status%20Ireland%202005.pdf. 39
Ibid, at 5. |
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14 |
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1.29
The Government‟s ongoing commitment to the concept of volunteering, and
its connection with active citizenship (which encompasses formal and non-formal, political, cultural,
inter-personal and caring activities),40
was illustrated by the establishment in 2006 of the Taskforce on
Active Citizenship. The 2007 Report of
the Taskforce on Active Citizenship41 accepted that a wide range of initiatives were required
to encourage active participation in community and society activities,
and recommended the establishment of an Active Citizenship Office. On foot of
this, the Active Citizenship Office was established in the Department of the
Taoiseach and a Steering Group was established in 2008 to oversee
implementation of the Taskforce‟s recommendations.42
Echoing the comments in the 2006 Report of the National Task Force on
Sudden Cardiac Death Syndrome, Reducing the Risk: A Strategic Approach,43
the 2007 Report of the Taskforce on Active Citizenship noted that
the increasing availability of insurance cover had overcome some obstacles to volunteering activity in what it
described as an increasingly litigious society. However, the Taskforce
also points out that there is little evidence of a decline in the quantity of
voluntary activity. It also “welcome[d] the Law Reform Commission‟s current examination of a
number of aspects of the legal duty of care and the associated
standard of care imposed on those who provide voluntary services, and has
made an input to its work.”44 1.30
The comments by the Taskforce on Active Citizenship were supported in
the views expressed to the Commission by a number of organisations in the
volunteering sector during the consultation process leading to this Report.
It is clear that the wide availability of insurance cover has removed the
most significant block to individual participation in organised volunteering
activity in the State. Nonetheless, the potential for civil liability, which the Commission accepts is likely to be a
relatively remote risk (and which the Commission discusses in detail in
Chapter 3), remains a real worry for some potential volunteers. In that
respect, voluntary organisations expressed the view |
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40
Taskforce on Active Citizenship, The Concept of
Active Citizenship (2007), p.2, available at www.activecitizen.ie 41
Report of the Taskforce on Active Citizenship (2007),
available at www.activecitzen.ie 42
See www.activecitizen.ie (homepage,
accessed 7 May 2009). 43
Department of Health and Children, Reducing the
Risk: A Strategic Approach (Report of the Task Force on Sudden Cardiac
Death, 2006), available at www.dohc.ie, discussed at paragraphs
1.10ff, above. 44
Report of the Taskforce on Active Citizenship (2007),
p.18, available at www.activecitzen.ie |
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15 |
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that
the enactment of legislation setting out clearly the scope and extent of the
civil liability of Good Samaritans and volunteers would have the value of
clarifying the law for potential volunteers and voluntary organisations. It
was also suggested that such legislation might have some implications on the
level of insurance premiums payable by such bodies. E
Conclusions 1.31
The Commission fully appreciates the policy of encouraging individuals
to give assistance that is of benefit to society, whether as Good Samaritans
or as volunteers in an organised setting. In this light, the Commission
accepts that any recommendations it makes should, where possible, be
consistent with supporting rather than discouraging volunteering generally as
well as participation in additional activities of benefit to society. 1.32
At the same time, the Commission notes that there remains an important
competing policy, namely that those who are injured through the carelessness
of others are entitled to expect suitable recompense. It is clear to the
Commission that this second policy objective has been recognised in the 2006
Report of the National Task Force on Sudden Cardiac Death Syndrome, Reducing
the Risk: A Strategic Approach, and in the 2007 Report of the Taskforce on Active Citizenship, both of which support the availability of suitable
indemnity or insurance arrangements. Indeed, the organisations with whom the Commission
consulted in the preparation of this Report all accepted the importance of this policy objective. Whether
the introduction of any legislation in this area will actually affect
the cost of insurance remains outside the scope of the Attorney General‟s
request to the Commission. 1.33
In the remainder of the Report, therefore, the Commission fully bears in mind
this policy context while focusing on the specific legal issues on which the
Attorney General requested the Commission‟s views. |
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16 |
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CHAPTER 2
A DUTY TO INTERVENE AND RESCUE |
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A
Introduction 2.01
In Chapter 1 the Commission discussed the
background to and policy setting in which the Attorney General‟s
request to examine the civil liability of Good Samaritans and volunteers
arises. The Commission concluded that any recommendations it makes should, where
possible, be consistent with supporting rather than discouraging volunteering
generally as well as participation in additional activities of benefit to
society. In this Chapter the Commission discusses one of the issues on which
the Attorney General sought the Commission‟s views, whether the law
should require individuals to intervene to assist an injured person or a
person who is at risk of an injury. As noted in the Consultation Paper,1 the Commission approaches this matter in two
parts: to what extent the law currently recognises a positive duty to
intervene and, whether the law should be amended to recognise a general duty
to intervene. The Attorney General‟s request is limited to an
examination of this in terms of civil liability.2 2.02
In Part B the Commission discusses the absence of
a general legal duty to intervene and rescue in Irish law. In Part C the
Commission discusses the specific situations in which Irish law currently
imposes a duty to rescue and intervene in specific situations. In Part D the
Commission discusses whether a general duty to intervene and rescue should be
imposed, including whether such a duty could or should be confined to “easy”
rescue situations. B
No general duty to intervene and rescue in Irish law 2.03
In this Part, the Commission discusses the
absence of a general legal duty to intervene and rescue in Irish law. The
Commission begins with a discussion of the moral dimension to this duty,
derived from the biblical parable or story of the “Good Samaritan.” The
Commission then notes that Irish law does not impose a general duty to
intervene but goes on to describe the specific |
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1
LRC CP 47-2007 at paragraph 2.01. 2
For discussion of criminal liability for
omissions and failure to rescue see Glanville Williams, Textbook of
Criminal Law 2nd ed (London, Stevens, 1983), p.149. |
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17 |
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circumstances
in which a duty to intervene and rescue have been imposed by decisions of the
courts and in specific legislation. (1)
The Good Samaritan and the moral duty to intervene 2.04
The concept of a person being under an obligation
to rescue or care for another person, or in other words to volunteer to help
a person who is in need, has its origins in the biblical parable of the Good
Samaritan that one should love one‟s neighbour as he or she would love
themselves.3 This parable sets out the religious and moral
doctrine which teaches that in order to love “thy neighbour as thyself” one
must show compassion towards all other people. The parable of the Good
Samaritan, then, supports a moral obligation on all persons to rescue another
person in need. One should feel morally compelled as a bystander who can
swim, to dive into a river to save a drowning person. Similarly, persons who
are medically qualified or trained in first aid should render treatment to
someone in distress. 2.05
In the biblical telling of the parable of the
Good Samaritan, in answering the lawyer‟s question of “who is my
neighbour?” Jesus told the story of a man - presumed to be Jewish - who was
travelling between Jerusalem and Jericho, who fell among thieves, who
stripped and wounded him and departed, leaving him half dead. Both a priest
and a Levite (who might be described as pillars of the Jewish community at
that time) passed him by. But a man from Samaria (the original “Good
Samaritan”), and who would at that time have been on unfriendly terms with
the Jewish community, saw him and had compassion on him. He went to him and
bound up his wounds and carried him to an inn and took care of him. On the
following morning when he departed, he gave some money to the innkeeper, and
asked him to take care of the injured man. Jesus stated that the neighbour
was the person who showed mercy to the injured man and that we are morally
obliged to do likewise. The Commission notes that the parable, in effect,
therefore, places a moral demand on all persons to help a neighbour who is in
need of help.4 |
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3
The Bible, New Testament, Gospel of St Luke
10:25-37. 4
In New York in December 2007, a 20 year old
Muslim Bangladeshi accountancy student, Hassan
Askari, was hailed as a modern-day “Good Samaritan” when he came to
the aid of three Jewish people who were attacked by a group of 10 men on a
train. It appeared that the group of 10 men – presumed to be Christian – had
been yelling “Merry Christmas” on the train and that the Jewish people wished
them a “Happy Chanukah.” The group of 10 then violently attacked the three
Jewish people and, at this stage, Mr Askari intervened to assist, allowing
one of the people being attacked to pull the emergency cord and alert the
police. Mr Askari was reported to have received “two black eyes and a sore
nose - but no regrets.” He was
subsequently conferred with awards by representatives of the |
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18 |
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2.06
In determining whether the moral duty to
intervene to assist another person in danger should be translated into a legal
duty to rescue, courts in different countries have often referred to the
biblical story of the “Good Samaritan.”5 Indeed, legislation to
deal with the civil liability, if any, of those who intervene to assist
others in danger is often given the title “Good Samaritan Act,” and this was
used in the 2005 Private Members Bill that preceded the Attorney General‟s
request to the Commission.6 (2)
The Good Samaritan and a general legal duty to intervene 2.07
Many moral principles can, of course, be
translated into broadly comparable legal prohibitions so that, for example,
the moral perspectives concerning killing and stealing largely translate into
comparable legal prohibitions on homicide and theft. Equally, not all moral
principles can be translated into legal principles. In that respect, the
majority of common law States (the family of legal systems derived from the
British legal system), including Ireland, do not impose a general legal duty
to intervene, whether as a “Good Samaritan”, to rescue somebody who might be
in trouble or to intervene as a volunteer of any kind. Common law States
have, in general, limited the law to stating that, if the person
decides to rescue or assist (to be a Good Samaritan or volunteer in that
sense), the rescuer must do so with all due care and that, if he or she
causes injury arising from carelessness (negligence), civil liability could
be imposed in that context.7 2.08
By contrast, many civil law States (the family of
legal systems derived from the Code-based systems of Continental Europe) and
other States (for example, those based on Sharia law) have imposed positive
legal duties to intervene to rescue. A positive duty to intervene is included
in the legislative codes of Belgium,
France, Germany, Greece, Italy, the Netherlands, Poland, |
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|
Jewish
community and by
the mayor of
New York. See http://news.bbc.co.uk/2/hi/south_asia/7149916.stm. This individual story of assistance of those in danger is
replicated many times in Ireland, many of which are publicly recognised
through, for example, Rehab‟s “People of the Year” awards. 5
For example, Buch v Amory Manufacturing Co,
69 NH 257 (1897) (United States: New Hampshire Supreme Court) and Donoghue
v Stevenson [1932] AC 562 (United Kingdom: House of
Lords). 6
It is even notable that one of the proprietary
brands of automated external defibrillators (AEDs) in regular use in Ireland
is called the “Samaritan® Pad
defibrillator.” 7
The duty of care that arises where the individual
chooses to intervene or volunteer is discussed in Chapter 3, below. |
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19 |
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|
Russia,
Switzerland and a number of countries of the Middle East.
For example,
the French Civil Code requires an individual to rescue another in situations
where “he can give his assistance without risk for himself or other persons,
either by his personal action or by prompting the rescue.” (3)
The reluctance of common law States to impose a general
legal duty to intervene 2.09
The Commission turns now to discuss in detail the
reluctance of the common law States (including Ireland), in contrast to civil
law States to imposing a general duty to intervene and rescue.8
McMahon and Binchy note that the common law has historically been completely
opposed to the imposition of affirmative duties and, in particular, to the
imposition of a positive duty to intervene to protect or to come to the aid
of another in peril.9 Similarly, it has been pointed out that “the
common law, first for historical reasons and later on philosophical grounds,
has taken a hostile view towards imposing tortious liability for pure
omissions”.10 The Commission agrees with the view expressed in a
Canadian case that the position that there is no general legal duty to
intervene is “deeply rooted in the common law”.11 2.10
An example of this traditional reluctance to
impose a general duty can be seen in the 19th century English
decision Gantret v Egerton.12 Here the defendants owned
land, which was intersected by a canal, cuttings and bridges leading to “certain docks of the defendants.”13
Mr. Gantret, who was lawfully |
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8
For a discussion of the position in civil law
jurisdictions see LRC CP 47-2007 at paragraphs 2.17 – 2.24. See also McMahon
and Binchy Irish Law of Torts 3rd ed (Butterworths, 2000)
at 169, who cite the following: Anon, “Failure to Rescue: A Comparative
Study” (1952) 52 Colum LR 631; Dawson „Negotiorum Gestio: The Altruistic
Intermeddler‟ (1961) 74 Harv LR 1073; Ratcliffe (ed), The Good
Samaritan and the Law (Chicago: Anchor Books, 1966); and von Bar, The
Common European Law of Torts (Oxford University Press, 2000), Vol 2, pp.
208-232. The Commission has also had the benefit of the analysis in Kortmann,
Altruism in Private Law (Oxford University Press, 2005), chapter 4. 9
See McMahon and Binchy Irish Law of Torts (3rd
ed Butterworths 2000) at 169. 10
Markesinis “Negligence, Nuisance and Affirmative
Duties of Action” (1989) 105 LQR 104 at 104. 11
Horsley v MacLaren [1970] O.R. 487 at 499 (Ont
C.A.). 12
(1867) 16 LT 17, reported as Gautret v Egerton (1867)
LR 2 CP 371. The case is cited in Kortmann, Altruism in Private Law (Oxford
University Press, 2005), p.53. 13
Gantret v. Egerton (1867) 16 LT 17 at 17,
cited in Kortmann, Altruism in Private Law (Oxford University Press,
2005), p.53. |
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20 |
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passing
over and using this land and these bridges, fell into one of the cuttings and drowned. His wife claimed that the defendants had wrongfully
and improperly
kept and maintained their land, canal, cuttings and bridges. She claimed that
the defendants had allowed them to continue to be in a condition that
rendered them unsafe for persons lawfully passing along. The plaintiff argued
that the defendants would have to prove that they did not owe a duty of care
towards the plaintiff. Willes J stated, however, that “[t]here is no duty to
do anything, but there is a duty to abstain from doing anything that would
injure.”14 Kortmann notes that, in another reported version of the
case in the Law Reports, Willes J is recorded as also stating that “[n]o
action will lie against a spiteful man who, seeing another running into a
position of danger, merely omits the warning.”15 As the plaintiff‟s
declaration did not reveal the breach of a specific affirmative duty, Willes
J held that the plaintiff had no cause of action.16 2.11
The courts also explicitly noted their hesitance
to transform moral duties into legal duties. In 1903, in Union Pacific
Railway. Co. v Cappier, the Supreme Court of Kansas stated: “For
withholding relief from the suffering, for failure to respond to the calls of
worthy charity, or for faltering in the bestowment of brotherly love on the
unfortunate, penalties are found not in the laws of men, but in that higher
law...”17 2.12
It remains the case in the early 21st
century that, in the majority of common law States, there is no general legal
duty to go to the aid of another person who is in danger.18 McMahon
and Binchy note that this appears to extend even to situations where the
injured person‟s life might depend on intervention
and where to give assistance would involve no danger or real |
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14
Gantret v Egerton (1867) 16 LT 17 at 18. As
Kortmann notes, p.53, this quote does not appear in the report of the case,
under the name Gautret v Egerton, in (1867) LR 2 CP 371. 15
Gautret v Egerton (1867) LR 2 CP 371 at
375. Conversely, as Kortmann also notes, p.53, this quote does not appear in
the report of the case, under the name Gantret v Egerton, in (1867) 16
LT 17. 16
Kortmann Altruism in Private Law (Oxford
University Press 2005), p.53. 17
6 Kan 649, 72 Pac. 281, 282 (1903). See also
section 312 of the American Law Institute‟s Restatement (Second) of
Torts: “The fact that the actor realizes or should realize that action on
his part is necessary for another's aid or protection does not of itself
impose upon him a duty to take such action.” 18
See McMahon and Binchy Irish Law of Torts 3rd
ed (Butterworths 2000) at 169, in particular the references in footnote 3. 21 |
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inconvenience
to the would-be-rescuer. They refer to examples of cases where doctors have
passed road accidents without stopping to help, even though the assistance of
a doctor may have been urgently required19 and where adults have
let toddlers drown in shallow waters without making an effort to help them.20
McMahon and Binchy note, however, that where the adult is also the parent of
a child, a duty to rescue arises and the Commission discusses this below in
the context of other specific examples of a legal duty to rescue. 2.13
Smith and Burns note that the courts have
established that “there is a basic difference between doing something and
merely letting something happen”.21 It would therefore appear that
no matter how cold-blooded and repulsive it would be to stand by idly and
watch the person drown there are no legal repercussions for such immoral
conduct. 2.14
This position has not, however, always been
certain and since the early development of the legal concept of negligence
(in essence, a duty of care, a failure in the duty of care and an injury
caused by this failure) it was understood to cover both acts (feasance) and
omissions (nonfeasance). In Blyth v Birmingham Waterworks Company,22
Alderson B defined negligence as follows: “Negligence
is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would
do, or doing something which a prudent and reasonable man would not do”.23 2.15
On the face of it, this definition did not
indicate that there was any difference in the law‟s approach to acts
(feasance) and omissions (nonfeasance) and that both types of behaviour were
measured against the standard of the reasonable man. However, as Pollock
pointed out,24 Alderson B‟s
definition must have been based on the presumption that the party whose
conduct was in question was already under a „duty of taking care‟. It
was at this |
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19
Smith v Rae 46 OLR 518 (CA, 1919); Hurley
v Eddingfield (1901) 156 Ind 416, 59 NE 1058, cited in McMahon and Binchy
at p.170. 20
Osterlind v Hill (1928) 263 Mass 73, 160 NE
301; Yania v Bigan (1959) 397 Pa 316, 155 A 2d 343, cited in McMahon
and Binchy at p.170. 21
Smith and Burns, „Donoghue v Stevenson - The Not so Golden
Anniversary‟, (1983) 46 MLR 147, at 154. 22
(1856) 11 Ex. 781. 23
(1856) 11 Ex. 781 at 784. 24
Pollock, The Law of Torts (1887), p.355,
cited in Kortmann, Altruism in Private Law (Oxford University Press,
2005) at 52. |
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22 |
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„duty‟ stage of the trial that the judicial approach
in cases of omissions (nonfeasance)
differed from cases of acts (feasance). For acts and their results,
Pollock explained, the actor was generally held answerable. For mere omission
he was not, unless he was under some specific duty.25 2.16
In the UK decision Donoghue v Stevenson,26 in which a general legal duty of care in
negligence was developed, the leading opinion delivered in the case by Lord
Atkin drew directly on the biblical parable of the Good Samaritan. For this
reason, the duty of care developed in the case is commonly known as the “neighbour
principle.” The duty of care developed in Donoghue v Stevenson has
been applied many times in Irish courts27 and has acted as a
“general road sign” for the development of this area of civil liability.28
The Commission notes two aspects of Lord Atkin‟s opinion for the
purpose of this Report. First, he discussed the connection between moral
principles and legal principles. Second, he referred to omissions in setting
out the legal duty of care of a manufacturer (the defendant) whose defective product (ginger beer) caused injury
(gastroenteritis) to a consumer (the plaintiff). 2.17
As to the connection between law and morality,
Lord Atkin pointed out in Donoghue v Stevenson that there are many
legal principles which have a moral basis but that it was not possible to
impose legal sanctions for failing to meet private moral principles to which
others might subscribe. He stated: “The
liability for negligence, whether you style it such or treat it as in other
systems as a species of „culpa‟, is no doubt based upon a general
public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure
cannot in a practical world be treated so as to give a right to every person
injured by them to demand relief. In this way rules of law arise which limit
the range of complainants and the extent of their remedy”.29 |
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25
Kortmann Altruism on Private Law (Oxford
University Press, 2005) at 53 also refers
to Bulman v Furness Railway Company (1875) 32 LT 430 at 432, where a distinction
is made between „active‟ and „passive‟ negligence, and Piggott, Principles of the Law of Torts (1885), p.208, who distinguishes „positive‟
and „negative‟ duties. 26
[1932] AC 562. 27
See McMahon
and Binchy Irish Law of Torts 3rd ed (Butterworths, 2000),
p. 118, fn20. 28
McMahon and
Binchy, p. 119. 29
[1932] AC 562 at 580. |
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23 |
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2.18
Lord Atkin then went on to explain that civil
liability in negligence might specify that one had a duty of care to a
“neighbour” but that the “neighbour” of whom he spoke is a more restricted
category than the neighbour referred to in the Christian parable of the Good
Samaritan. Lord Atkin explained this distinction in the following passage,
which has been cited many times since: “The rule
that you are to love your neighbour becomes in law: You must not injure your
neighbour, and the lawyer‟s question: Who is my neighbour? receives a restricted reply. You must take reasonable care
to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour. Who, then, in law is my neighbour? The
answer seems to be – persons who are so closely and directly affected by my
act that I ought reasonably to have them in contemplation as being so
affected when I am directing my mind to the acts or omissions which
are called in question.”30 2.19
There is little doubt that Lord Atkin did not
intend the legal rule of civil liability in negligence to equate to the moral
rule set out in the biblical parable of the Good Samaritan, though equally it
can be said that the legal rule clearly contains elements derived from moral
principle.31 The moral principle that we are to love our
neighbour becomes in law the duty not to injure our neighbour, and the
scope of “neighbour” also appears to be less extensive than the biblical
concept, which appear to be potentially global in scope. 2.20
Given that Lord Atkin drew this distinction
between moral principles and legal duties, and that he specifically narrowed
the scope of the concept of “neighbour” in framing the legal duty of care, it
could be concluded that individuals have no legal duty to intervene – to act
as a Good Samaritan or, indeed, as a volunteer. 2.21
There is one obstacle to this conclusion, the
inclusion by Lord Atkin of the word “omissions” twice in this passage setting
out the duty of care. Later judicial comments on this part of Lord Atkin‟s
opinion take the view that the use of “omissions” is either too broad or that
it must be seen as being limited to situations where a person who has already
taken some active step – such as manufacturing a product, and who thus has a
duty to be careful – omits to do something which lead to them to injuring the
“neighbour.” In that respect, it has been said that the neighbour principle
was never intended to cover „pure‟ omissions.32
In the 1970 UK House of Lords decision Home Office v Dorset |
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30
[1932] AC 562 at 580 (emphasis added). 31
See Byrne and Binchy, Annual Review of Irish Law 2007 (Round
Hall, 2008), p.391. 32
Smith and Burns, „Donoghue v. Stevenson - The Not So Golden
Anniversary‟ (1983) 46 MLR 147 at 155-156 suggest that the neighbor
principle was never |
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24 |
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|
Yacht Co. Ltd.33
Lord Diplock stated clearly that omissions give rise to no legal liability: “The very
parable of the Good Samaritan which was evoked by Lord Atkin in Donoghue v
Stevenson illustrates, in the conduct of the priest and of the Levite who
passed by on the other side, an omission which was likely to have as its
reasonable and probable consequence damage to the health of the victim of the
thieves, but for which the priest and the Levite would have incurred no civil
liability in English law.34 2.22
This approach was followed in the
1987 House of Lords decision Smith v Littlewoods Ltd,35 in
which Lord Goff stated: “Why does
the law not recognise a general duty of care to prevent others from suffering
loss or damage caused by the deliberate wrongdoing of third parties? The
fundamental reason is that the common law
does not impose liability for what are called pure omissions.”36 2.23
In the 1996 decision Stovin v
Wise,37 the UK House of Lords again confirmed
this approach. Lord Nicholls noted: “The recognised
legal position is that the bystander does not owe the drowning child or the
heedless pedestrian a duty to take steps to save him. Something more is
required than being a bystander. There must be some additional reason why it
is fair and reasonable that one person should be regarded as his brother‟s
keeper and have legal obligations in that regard. When this additional reason
exists, there is said to be sufficient proximity. 38 2.24
In conclusion, the Commission reiterates that there is a long-standing
reluctance in common law States, including Ireland, to impose a general duty
to |
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|
intended
to cover „pure‟ omissions. Kortmann Altruism on Private Law (Oxford
University Press, 2005) notes, of course, that Lord Atkin drew directly on
the biblical parable of the Good Samaritan, itself unquestionably a case of
„pure‟ omissions. 33
[1970] AC 1004. 34
[1970] AC 1004 at 1060. 35
[1987] AC 241. 36
[1987] AC 241 at 271. 37
[1996] AC 923. 38
[1996] 3 All ER 801 at 806. |
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25 |
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|
intervene
and rescue.39 This has been supported by the comments made by many
courts since the decision in Donoghue v Stevenson, in particular
through the emphasis on the requirement of proximity. The Commission notes in
this respect that the Irish Supreme Court has affirmed, in cases such as Glencar
Exploration plc v Mayo County Council,40 that the duty of care
in negligence in Irish law is, equally, limited by the requirement that there
be proximity between the parties, in other words, that there is a
sufficiently close relationship between the parties that it would be
reasonably foreseeable that the careless person‟s actions (or
inactions) would be likely to cause injury to the “neighbour”. In that
respect also, if mere moral wrongdoing was all that was required, the
proximity test would not be required and liability could be imposed on the
wrongdoer in respect of persons who were in no way connected to the
wrongdoer. It is thus clear that there is no general legal duty to intervene
and rescue. C
A duty to intervene and rescue in
Irish law in specific instances 2.25
While there is currently no general duty to
intervene and rescue in Irish law, a number of specific instances to do so
have been established both in common law (judge made law) and legislation. (1)
Relationships of dependency 2.26
A clear example of where the law recognises a
duty to intervene and rescue is that of the parent and child. The basis for
this is that the law recognises a special dependency, allied to the creation
of a duty arising from the fact of being a parent. A similar rationale lies
behind the recognition of a specific duty to intervene in the following
relationships: occupier of land and visitor;41 transport carrier
and passenger; hotel proprietor and guest; and prison authorities and
prisoner.42 2.27
It has been suggested that the duty to protect
another in a special relationship arises only where the relationship exists
and the harm develops in the course of that relationship.43 In the
absence of a special relationship or the |
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39
See paragraph 2.09, above. 40
[2002] 1 IR 84. 41
Occupiers Liability Act 1995, replacing
similar common law rules. 42
Nowlin “Don‟t just stand there: Help me!”
(2003-2004) 30 Wm Mitchell L Rev 1001 at 1004-1005; Kortmann Altruism in
Private Law (Oxford University Press 2005) at 68-69. See also Newnham “To
assist or not to assist: The Legal Liability of Midwives acting as Good
Samaritans” (2006) 19 Women and Birth 61 at 61. 43
Nowlin “Don‟t just stand there: Help me!”
(2003-2004) 30 Wm Mitchell L Rev 1001 at 1004-1005 |
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26 |
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|
termination
of an existing special relationship, a party is under no duty to protect or
aid the other. Thus, a transport carrier would owe no duty to an individual
who has left the vehicle and ceased to be a passenger and a hotel proprietor
would owe no duty to a guest who is injured or endangered while he or she is
away from the hotel premises. 2.28
Other commentators have also supported this view,
noting that the position at common law is such that “except when the person
endangered and the potential rescuer are linked in a special relationship,
there is no such duty [to intervene]”.44 The Commission agrees
that it is more likely that liability for omissions (nonfeasance) would be
imposed where a special relationship exists between the parties. This is
particularly so where the relationship may be described as one of dependency,
such as between a parent and a child, an employer and an employee, a
shopkeeper and a customer, spouses, and a physician
and a patient.45 This “special
relationship” argument has been employed to deny that parties are really
“strangers”. In this respect, Gregory notes: “For it is
clear at common law that nobody has to lift a finger… to help a stranger in
peril or distress. I say “stranger” because there are relationships which
require people to help others or avert danger toward them.”46 2.29
The Commission has already noted that it is
generally accepted that the parent and child relationship may give rise to a
duty to protect one‟s children.47 Furthermore, a special
relationship of this type may also give rise to |
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44
Weinrib “The Case for a Duty to Rescue” (1980) 90
Yale LJ 247, quoting Prosser The Law of Torts § 56 at 338-43 (4th
ed. 1971) (special relationships include husband-wife, shipmaster-crew,
proprietor-customer, carrier-passenger,
educator-pupil, and employer-employee). 45
Weinrib notes
the relationships of
landlord/trespasser and boat
operator/passenger have given rise to duties. See Weinrib “The Case for a
Duty to Rescue” (1980) 90 Yale LJ 247 at 248. 46
Gregory “The Good Samaritan and the Bad: The
Anglo-American Law” in Ratcliffe (ed) The Good Samaritan and the Law (Chicago:
Anchor Books, 1966) at 24. 47
McMahon and Binchy Law of Torts (3rd
ed Butterworths 2000) at 170, fn6. In Surtees v Royal Borough of Kingston
upon Thames [1992] PIQR 101 at 111, it was held that a foster parent owed
a duty to her foster child. |
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27 |
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|
a
duty to control the conduct of others. As was stated in the Australian case Smith
v Lears:48 “… it is incumbent upon a parent who maintains control over a
young child to take reasonable care to exercise that control as to avoid
conduct on his part, exposing the person or property of others to
unreasonable danger.” 2.30
A school may be liable for releasing students
before it is expected to close,49 or, more generally, for failing
to take reasonable care in ensuring the safety
each student‟s person and property.50
Likewise, an employer is responsible for ensuring safety and health in
the workplace and looking after an employee who becomes injured or ill in the
workplace.51 In the United Kingdom, it has been held that prison
authorities owe a common law duty to provide medical care to prisoners.52 (2)
Creation of risk and duty to minimise risk 2.31
If a person creates a situation or risk of
danger, however blamelessly, the law requires him or her to prevent the
danger from culminating in harm.53 In such circumstances the
courts will usually classify the case as one of act (feasance) as opposed to
omission (nonfeasance). A pertinent example of this relates to the situation
where a car driver fails to brake and injures a pedestrian. Such a failure
will be regarded by the courts in most cases as active conduct or as Fleming
explains it, “the element that makes his active conduct – driving –
negligent”.54 This allows the courts to impose liability without
having to consider the more difficult issue of liability for nonfeasance. 2.32
However, in the English case Johnson v Rea55
the defendants were found liable for their failure to clean a floor on
which slippery material had fallen, and the plaintiff as a result fell and
suffered injury. The court stated that: “if any
person creates a danger, it his duty to do something more than to warn people
coming on to the premises or coming within the |
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48
(1945) 70 CLR 256 at 262. 49
Barnes v Hampshire County Council [1969] 1
WLR 1563. 50
See Kortmann Altruism in Private Law (Oxford
University Press, 2005). 51
See the discussion of safety and health at work,
paragraphs 2.50ff, below. 52
Knight v Home Office [1990] 2 All ER 237 at
243. 53
See Kortmann, Altruism in Private Law (Oxford
University Press, 2005), at 55-58. 54
Fleming The Law of Torts (9th
edn 1998) p.163. 55
[1961] 1 WLR 1400. 28 |
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|
ambit
of the danger that it exists. He must take reasonable steps, if such steps
can be taken, to obviate the danger to people likely to encounter it.”56 2.33
The Commission notes that in Union Pacific
Railway Co. v Cappier57 the Supreme Court of Kansas refused to
impose liability on a railway company for failing to render aid to an injured
trespasser.58 However, during the 20th century, this ruling and similar rulings came
under strong criticism.59 The Commission notes
that it is now generally recognised that a duty to act arises where the
defendant‟s prior conduct, though blameless, has caused an injury.60
In such cases the defendant is not merely one of a large number of
possible people who can intervene but an easily identifiable party. In
addition, the Commission notes that there is a stronger causal connection
between the defendant‟s actions and the harm which has occurred than in
other cases of nonfeasance. (3)
Professional rescuers 2.34
In the Consultation Paper, the Commission
pointed out that for those professional rescuers governed by statute, there
is a distinction between a statutory power of discretion and a statutory
duty.61 The Commission noted that a duty to intervene will not
usually arise in the case of a statutory power of discretion, while a duty
may be owed to the public at large rather than to a particular individual in
the case of a statutory duty. 2.35
Where an intervention occurs in an accident or
emergency situation, the Commission notes
that the rescue body is not generally held to have |
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|
56
[1961] 1 WLR 1400 at 1405. See also the US case Montgomery
v National C. & T. Co 195 SE 247 (1937), in which it was held that
two truck drivers whose trucks had stalled were liable for an accident
resulting from their failure to post a warning: cited in Gregory “The Good
Samaritan and the Bad: The Anglo-American Law” in Ratcliffe (ed). The Good
Samaritan and the Law (Chicago: Anchor Books, 1966), at 27. 57
66 Kan. 649, 72 Pac. 281 (Sup. Ct. of Kansas,
1903). 58
See also Turbeville v Mobile Light & R. Co.
221 Ala. 91, 127 So. 519 at 521 (Supreme Court of Alabama, 1930), with
further references. 59
Gregory “The Good Samaritan and the Bad” in
Ratcliffe, (ed.) The Good Samaritan and the Law (Chicago: Anchor
Books, 1966) at 26-27. 60
See Honoré “Are Omissions Less Culpable?” in Cane
and Stapleton Essays for Patrick Atiyah (1991) at.43-45. 61
LRC CP 47-2007 at paragraph 2.27. See McMahon and
Binchy Law of Torts (3rd ed Butterworths 2000) at 534. |
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29 |
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|
voluntarily
assumed responsibility for the rescue. Therefore, even where the rescue is
performed carelessly or negligently, the body will not be held liable. In
this regard, the Commission notes that a number of cases in the 1990s in the
United Kingdom held that certain emergency services were not duty bound to go
to the aid of persons in peril, for example, the fire services,62
the police63 and the coastguard.64 In Capital and
Counties plc v Hampshire County Council65, for instance, it
was held that by taking control of the operations at the scene of a fire, the
senior fire officer was not held to have voluntarily assumed responsibility,
regardless of whether there was reliance on the fire service on the part of
the owner. As a result, no liability attached to the fire service unless they
made the situation worse than it already was. This can be contrasted with the
decision in Barnett v Chelsea and Kensington Hospital Management
Committee,66 where it was held that a doctor-patient
relationship was effectively created when a person, who was ill, managed to
present himself at an open hospital accident and emergency unit. He was,
therefore, entitled to reasonably careful treatment. 2.36
The Commission notes that the position in
Scotland appears to be different. In one case, it was held that fire
services, which have been found to have been negligent, do not enjoy immunity
from liability.67 In another case, the police force was found
liable when it assumed responsibility to warn motorists of a collapsed bridge
and abandoned the task before the risk was alleviated.68 2.37
In Kent v Griffiths,69 which
involved consideration of whether there was a duty on an ambulance service
when summoned to an emergency, the English Court of Appeal held that an
unreasonably delayed response could amount to actionable negligence, and in
that case, the defendants were held liable for damages that would not have
occurred but for the delay. Delivering the leading judgment in the case, Lord
Woolf MR equated the ambulance services with hospitals and other health
service providers who do owe duties of care. It was held that proximity was
established as soon as the GP had phoned |
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|
62
Capital and Counties plc v Hampshire County
Council [1997] Q.B. 1004. 63
Alexandrou v Oxford [1993] 4 All ER 328. 64
OLL Ltd. v Secretary of State for Transport [1997]
3 All E.R. 897. 65
[1997] Q.B. 1004 at 1035. 66
[1969] Q.B. 428. 67
Duff v Highlands and Island Fire Board [1995]
S.L.T. 1362. 68
Gibson v Chief Constable of Strathclyde 1999 S.C. 420. 69
[2001] Q.B. 36. 30 |
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|
the
emergency services, giving the ambulance services notice of the emergency
status of the call. 2.38
The Commission acknowledges that the reasons set
out for the no-duty rule are unconvincing when applied to certain
professional and equipped emergency and rescue services such as health
services and ambulance services.70 Such services are paid from
public funds to save persons in difficult circumstances. Thus,
they are distinct from altruists who happen upon a situation unexpectedly and
without adequate resources. In this regard, it has been convincingly asserted
that: “[A]rguably
the sacrifice of individual liberty, implicit in affirmative duties on
private individuals, has no counterpart in the case of public authorities
specifically entrusted with powers and resources for the sake of public
health and safety….”71 2.39
Until recently the position pertaining to the
emergency services seemed to apply to healthcare professionals as well. With
regard to the two categories, it appeared that there was no obligation to
provide emergency medical care unless the person seeking medical attention
was already a patient of the practitioner in question: “A doctor may flout
his Hippocratic Oath and deny aid to a stranger.” 72 2.40
The decision of the New South Wales Court of
Appeal in Lowns v Woods73 appears to mark a departure from
this position. In that case, the Australian court found a doctor liable in
negligence for refusing to attend and treat a boy who was having an epileptic
fit, even though there was no pre-existing doctor-patient relationship. The
Court found that, in the particular circumstances of the case, there was
“physical”, “circumstantial” and “causal” proximity which justified the
imposition of a duty on the doctor and the doctor breached this duty by refusing to attend. Dr. Lowns was nearby, had
the |
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|
70
Williams “Litigation against English NHS Ambulance
Services and the Rule in Kent v Griffiths” (2007) 15 Med Law Rev 153 71
Fleming The
Law of Torts 8th ed (Law Book Company Ltd. 1992) at 211 fn.
485. 72
Ibid at 147. In the Irish case O’Doherty
v Whelan, High Court, 18 January 1993 (discussed
in McMahon and Binchy, Irish Law of Torts (3rd ed
Butterworths 2000), at 371) O‟Hanlon J held that a doctor has a
duty to make a visit to the home of a person who was already their patient. 73
[1996] Aust. Torts Reports 81-376 (NSW C.A.). |
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31 |
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|
competence
and ability to treat the child and had no other commitments at the particular
time. 74 2.41
The Commission notes, however, that no general
duty to assist appears to have been created in Lowns v Woods. The
Commission considers that the comments of the judge at the original trial,
reported as Woods v Lowns, are of interest.75 The
judge explained negligence and foreseeability in terms of assisting strangers
in an emergency as follows: “In
general terms, the common law does not impose a duty to assist a person in
peril even when it is foreseeable that the consequence of a failure to assist
will be the injury or death of the person imperilled… It has been held in
other common law jurisdictions that a doctor is under no duty to attend upon
a person who is sick, even in emergency, if that person is one to whom the
doctor has not and never has been in a professional relationship of doctor
and patient … Although there is no Australian authority in which the general
proposition has been specifically applied in respect of a medical
practitioner the general principle is clear, and there is certainly no Australian
case in which a doctor has been held liable for damages because of a failure
to attend upon and treat someone who was not already his patient.” 2.42
Furthermore, Crowley-Smith suggests that the duty
in Lowns v Woods is restricted to doctors only, by virtue of the
specific provisions in the NSW Medical Practitioners Act 1938 (since
replaced) and the specific facts of the case.76 The
decision of the Court of Appeal in the case does not, according to Abadee,
“do violence to the general principle that a medical practitioner is under no
legal duty to attend upon and treat someone who was not already his or her
patient.” 77 The finding was based on the particular circumstances
of the case which established a duty of care by the defendant to the plaintiff. 2.43
In 1997, a year after the Australian decision,
the English Court of Appeal, in Capital and Counties plc v Hampshire
County Council,78 and without |
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74
Cf Egedebo v. Windermere District Hospital
Association (1993) 78 BCLR. (2d) 63 where a Canadian off-duty doctor was
held liable when he failed to arrange treatment. 75
[1995] 36 NSWLR 344 at 354. 76
Crowley-Smith “The Duty to Rescue unveiled a Need
to indemnify the Good Samaritan Health Care Professionals in Australia?
(1997) 4 J Law Med 352 77
Abadee “A Medical Duty to Attend?” (1997) 3 J
Law Med 306 at 308. 78
Capital and Counties plc v Hampshire County
Council [1997] QB 1004, 1035. |
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32 |
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referring
to Lowns v Woods reasserted the view that mere physical proximity
between a doctor and a sick person, of itself, does not creates a duty to
treat. On this view, doctors who happen upon road accidents are not bound to
help and, if they do stop, can be liable only if they make the casualty‟s
condition worse. Williams notes that this denial of a patient-status (and the
consequent “worsening” rule) probably results from a desire to encourage
rescues and to protect Samaritans who inadvertently botch them.79
Williams argues, however, that the risk of facing a writ is more theoretical
than real. If an action were to be brought, it is likely that the courts
would be sensitive to the fact that the treatment had been provided in
“battle conditions” and would, thus, be reluctant to hold that there had been
a breach of the duty of care.80 2.44
In this regard, the Commission acknowledges that
the specific setting, including any relevant statutory duties, have played a
significant role in determining whether any liability arises in these kind of
cases. As has been pointed out, certain statutory functions are essential for
the effective functioning of society. Therefore, it is reasonable for society
to insist that those functions be discharged properly, under sanction of
damages where this is appropriate.81 (4)
Road traffic accidents 2.45
The Commission pointed out in the Consultation
Paper that Irish law does not impose a duty to intervene in situations
involving road traffic accidents.82 This may be contrasted with
the approach taken in other common law jurisdictions such as the United
States, where many States impose a duty on drivers to assist persons involved
in road traffic accidents. Similarly, in Canada the majority of Provinces
have enacted legislation requiring a driver involved in a road traffic
accident to render assistance to those who are injured in the accident. 2.46
The closest to such as duty in Irish law is the
obligation, under section 106 of the Road Traffic Act 1961, to report
a road traffic accident involving personal injury or injury to property to
the Garda Síochána.83 Section 106(1)(d) of the 1961 Act84
provides that, where injury is caused to a person or |
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79
Williams,
“Medical Samaritans: Is There a Duty to Treat?” (2001) 21 Oxford Journal
of Legal Studies 393 80
Williams,
“Medical Samaritans: Is There a Duty to Treat?” (2001) 21 Oxford Journal
of Legal Studies 393 81
McMahon and Binchy Law of Torts (3rd ed
Butterworths 2000) at 534. 82
LRC CP 47-2007 at paragraph 2.30. 83
See Pierse Road Traffic Law 3rd
ed (First Law, 2008). 84
As amended by the Road Traffic Act 1986. |
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33 |
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property
in a public place and a vehicle is involved in the occurrence of the injury
(whether or not it is the cause): “the
driver of the vehicle, or, if he is killed or incapacitated, the person then
in charge of the vehicle shall report the occurrence as soon as possible to a
member of the Garda Síochána and, if necessary, shall go for that purpose to
the nearest convenient Garda Síochána station and also shall give on demand
the appropriate information to the member.” 2.47
It has been held that this duty means remaining
at the scene of an accident long enough to allow information to be noted.85
The report must be made officially to a member of the Garda Síochána.86
Where the driver stops and gives information to an entitled person on the
scene, then, except in the case where there is an injured person, there is no
duty to report to a member of the Garda Síochána. Where there is a delay in
reporting and no proper explanation is given, the defendant should be
convicted.87 The duty to report arises where there is a connection
between the presence of the vehicle and the accident.88 2.48
The English case R v Kingston upon Thames
County Council ex parte Scarll89 shows the importance of
reporting an accident involving injury to the Gardaí. A superintendent police
officer gave assistance to a girl who had been hit by his car through no
fault of his own. While he had spoken to the girl‟s father, who was a
friend, it was held that this was not sufficient. 2.49
The duty in section 106 of the 1961 Act is
limited in scope to a duty to report certain types of accidents. The
Commission notes in this respect that this duty to report has been extended
in a number of other common law jurisdictions, such as the United States and
Canada, to include a duty to intervene and assist an injured person at the
scene of the accident. The Oireachtas has not, to date, chosen to do so. (5)
Safety and health at work legislation, including first
aid 2.50
The Safety, Health and Welfare at Work Act
2005 imposes significant duties on employers which extend beyond a duty
to act in a reasonably careful |
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85
Temelling v Martin [1971] RTR 196. 86
Mutton v Bates [1984] RTR 256. 87
Balman v Larkin [1981] RTR 1. In Vigus
v. Mann [1961] WAR 1, it was held that a lapse of 3 hours was not “as
soon as practicable”. 88
Quelch v Phipps [1955] 2 QB 107, where a
passenger fell off a bus platform. 89
[1990] Crim LR 429. |
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34 |
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manner
towards employees.90
Section 8(1) of the 2005 Act
requires every employer
to ensure, so far as is reasonably practicable, the safety, health and
welfare at work of all of his or her employees. Section 8(2) sets out a
non-exhaustive list of duties under this general provision, which includes a
duty to provide for the welfare of employees, and this encompasses the
positive duty to provide first-aid assistance to employees who are injured at
work. This clearly involves a statutory duty to assist and rescue. 2.51
These duties, therefore, clearly extend to the
obligation to avoid omissions which are likely to cause injury both to
employees who may be affected by the employer‟s activities. In
addition, sections 18 to 20 of the 2005 Act require that certain precautions
and preventative measures must be taken by the employer in order to ensure
safety and health of employees, which must be set out in writing in a safety
management document called the Safety Statement. 2.52
As regards first aid in particular, Part 7,
Chapter 2 of the Safety, Health and Welfare at Work (General Application)
Regulations 200791 (the First Aid Regulations 2007),
made under the 2005 Act, sets out a specific duty on employers to make
first-aid equipment and qualified occupational first aiders available to
assist injured employees. The 2007 Regulations define “first-aid” as
“treatment for the purpose of preserving life or minimising the consequences
of injury or illness.” While the 2007 Regulations do not define first aid
specifically to include, for example, the use of automated external defibrillators
(AEDs), the authoritative Guide to the 2007 Regulations published by
the Health and Safety Authority (HAS, the key regulator in this area) states
that: “The
provision of automated external defibrillators (AEDs) in workplaces to
prevent sudden cardiac death should be considered, and early defibrillation
using an AED is one of the vital links in the “chain of survival”. Ideally,
wherever there is an occupational first aider(s) in a workplace, provision of
an AED should be considered. The training of other employees who are not
occupational first-aider(s) in the use of AEDs is also encouraged. Whereas
it may be practicable and desirable to have an AED in every workplace, due to
cost considerations it would be unreasonable to expect all employers (especially
small and medium size enterprises (SMEs)) to have one on their premises, even
if there |
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90
See generally Byrne, Safety, Health and Welfare
at Work Law in Ireland 2nd ed (Nifast, 2008) and Shannon, Health
and Safety: Law and Practice 2nd ed (Round Hall, 2008). 91
SI No 299 of 2007. |
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35 |
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is
an occupational first-aider present. These costs not only include the
purchase price but also the cost of maintenance of the equipment and
refresher training for those trained in how to use AEDs. However,
different employers at the same location, such as in shopping centres, small
business enterprise centres etc., where relatively large numbers of employees
or other persons are likely to be habitually present, might find it feasible
to co-operate in the provision of shared AED equipment, training and assistance.”
92 2.53
It is also notable that, in 2008, the FETAC93
qualification in occupational first aid includes a mandatory module in the
use of automated external defibrillators (AEDs).94 This
development is linked to the increased use of AEDs in response to sudden
cardiac death (SCD), including the 2006 Report of the Task Force on Sudden
Cardiac Death,95
which forms part of the wider policy context against which the Attorney
General‟s request is to be considered. The Commission considers that the
specific reference in the HSAs‟ 2007 Guide to the First Aid
Regulations 2007 to the prevention of sudden cardiac death indicates
that, in specific instances, a duty to rescue and assist may be appropriate. (6)
Safety of Children: A Duty to Notify? 2.54
In Ireland there is no statutory provision for
the mandatory reporting of child abuse in general,
and child sexual abuse in particular. This remains the position although in
recent years there have been numerous revelations involving not only
instances of abuse but also systematic cover-up. Concern about the apparent
impunity with which the perpetrators had acted and the immunity which seemed
to attach to those who had failed to intervene led to the establishment of a
number of public inquiries and the publication of several reports. This has
led to the renewed vigour of those who advocate for mandatory reporting. |
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92
Guide to the Safety, Health and Welfare at Work
(General Application) Regulations 2007 Chapter 2 of Part 7: First-Aid (HSA,
2007) p.7, available at www.hsa.ie 93
FETAC is the Further Education and Training Awards
Council, established under the Qualifications (Education and Training) Act
1999. 94
See Byrne, Safety, Health and Welfare at Work
Law in Ireland 2nd ed (Nifast, 2008), p.556; and Health and
Safety Review, June 2008, available at www.healthandsafetyreview.ie 95
See the discussion in Part C of Chapter 1, above. |
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36 |
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2.55
The issue of whether to impose a duty on persons
to report instances of child abuse has attracted much public debate. However,
the Oireachtas has not moved to impose such a positive duty. The approach
taken to date has been to protect those persons who do, in fact, report their
concerns. This protection is enshrined in the Protection for Persons
Reporting Child Abuse Act 1998. In the Commission‟s view, the
absence of further legislative developments in this particular area indicates
the difficulty of developing a general rule in this respect. (7)
Conclusions 2.56
The Commission considers that the specific duties
to intervene discussed in this Part have developed by reference to quite
distinct rationales, each of which have validity. It is clear that their
precise scope is fairly settled but that they are also capable of further
development, as the comparative analysis makes clear in connection with those
developed through judicial case law. In the case of legislative duties
requiring an obligation to assist and rescue, it is clearly a matter for the
Oireachtas to determine their scope and development. The Commission considers
that it is appropriate that the courts and the Oireachtas should be left to
decide these matters in connection with these specific instances. This can be
achieved without prejudice to whether a more general duty to intervene and
rescue is developed. 2.57
The Commission does not, therefore, propose to
make any recommendation on these existing specific duties, and turns now to
consider whether, as the Attorney General requested, a general duty to
intervene should be put in place. D
Consideration of a general duty to intervene and rescue 2.58
As the Commission has already noted, most common
law States have maintained the view that there should be no general legal
duty to intervene, subject to a number of specific exceptions. The Commission
notes, however, that some States have enacted legislation providing for
positive duties in certain circumstances. The Commission now turns to
consider these and then to discuss whether such an approach should be taken
in Ireland. (1)
States that have imposed a duty to intervene (a)
Canada 2.59
Quebec is unique in Canada in imposing a duty on
everyone to help a person in peril.96 The duty to take action
stems from the Quebec Charter of Human Rights and Freedoms 1975.
Article 2 of the Charter states that “every |
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96
LRC CP 47-2007 at paragraph 2.16. |
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37 |
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human
being whose life is in peril has a right to assistance”. This imposes an
obligation on all persons to render aid if it can be accomplished without
serious risk to that person or a third person or if there is no other valid
reason for not rendering it.
Aid can be rendered
personally by giving necessary and immediate
physical assistance or by calling for assistance. (b)
United States97 2.60
Chapter 604A.01, subdivision 1, of the Revised
Minnesota Statutes 2007, which imposes an affirmative duty to assist in
an emergency (at the scene of an emergency), is an exception to the general
rule that there is no duty to intervene. Minnesota has thus created a
statutory duty to render assistance at the scene of an emergency where a
person knows that another person is exposed to or has suffered grave physical
harm. He or she must only render reasonable assistance if they can do so
without danger or peril to themselves or others. A person who violates this
rule will be guilty of a petty misdemeanour. The meaning of “reasonable
assistance” and the immunity associated with the statutory duty was
challenged in Swenson v Waseca Mutual Insurance Co..98 The interpretation of the
term “reasonable assistance”, the case and its findings will be discussed
further in Chapter 3. (c)
Australia 2.61
The Commission notes that in Australia, there are
certain situations in which a duty is imposed on a public authority to
perform particular functions. The courts have based this duty on the general
reliance which exists on the part of those at risk of injury or damage if
certain statutory functions are negligently discharged.99 (2)
Consideration of a general duty to intervene 2.62
In the Consultation Paper, the Commission
recommended that there should be no reform of the law to impose a duty on
citizens in general, or any particular group of citizens, to intervene for
the purpose of assisting an injured person or a person who is at risk of such
an injury.100 2.63
The Commission described a number of reasons why
the law hesitates to impose such an obligation on individuals. The Commission
then concluded that the arguments against
the imposition of a positive duty to |
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97
As regards states with a duty to aid see C.M.
Ciociola “Misprision of Felony and Its Progeny” 41 Brandeis L.J. 697
at 735-36 (2003). 98
653 NW2d 794 (Minn Ct. App. 2002). 99
Sutherland Shire Council v Heyman (1985)
157 CLR 424 100
LRC CP 47-2007 at paragraph 2.52 |
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38 |
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intervene
had a great deal of weight, in particular, as the Commission noted, because
they are consistent with the general basis of the duty of care in negligence
which the Commission argued had not been criticised in any significant respect.101
Furthermore, the Commission
concluded that the arguments
against imposing a duty to intervene outweigh any which would impose a
general duty.102 In this section the Commission re-examines these
arguments in detail. The Commission notes in this respect that, in Stovin
v Wise103 Lord Hoffmann stated that “[t]here are sound reasons
why omissions require different treatment from positive conduct” and that
these can be set out in political, moral or economic terms.104 The
Commission will now turn to deal with each of these arguments in turn as well
as a number of additional arguments that have been put forward. (a)
Personal Liberty and Freedom of Choice 2.64
One of the main arguments put forward against the
introduction of a positive duty to intervene is that it would constitute too
great an infringement of personal liberty.105
This argument stems from the limited choice offered by affirmative duties to potential defendants.
In Stovin v Wise Lord Nicholls referred to this argument. He
stated that: “Liability
for omissions gives rise to a problem not present with liability for careless
acts. He who wishes to act must act carefully or not at all … With liability
for omissions, however, a person is not offered a choice. The law compels him
to act when left to himself he might do nothing.106 2.65
Although it can be said that every duty which
arises under law, both negative and positive, restricts our personal freedom,
positive duties unlike negative ones are more restrictive because they deny
us the option to avoid being subjected to them. Kortmann sets out a good
example of this: if one believes they cannot act as a reasonable driver
would, they can decide not to drive. However, one does not have the same
option where they are required to act as a reasonable rescuer would upon
witnessing an accident. However, Kortmann
also notes that imposing positive duties does not in reality leave us |
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101
LRC CP 47-2007 at paragraph 2.50. 102
LRC CP 47-2007 at paragraph 2.51. 103
[1996] 3 All ER 801 at 819. 104
Ibid. 105
See Kortmann Altruism in Private La 106
[1996] 3 All ER 801 at 809. |
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39 |
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without
an option to avoid being subjected to such positive duties but rather leaves
a person with less of an option than is the case with negative duties. (b)
Distinction between Nonfeasance and Misfeasance 2.66
Another argument relates to the common law
distinction between misfeasance and
nonfeasance.107 The Commission acknowledges
that the question of what exactly constitutes “nonfeasance” is problematic.
Certainly, it is clear that many words that are grammatically active connote inactive
behaviour,108 e.g. sleeping, starving,
fasting etc. In many cases, therefore, it is quite difficult to draw a clear
distinction between feasance and nonfeasance.109 2.67
The Commission considers that the distinction
between misfeasance and nonfeasance may also be stated in terms of acts and
omissions and notes that the distinction between harming persons by active
carelessness and a “simple” failure to help such persons is a jurisprudential
distinction that has, for many years, been established as “fundamental” and
“deeply rooted in the common law”.110 It is this classical
distinction which holds that liability can result from an act of misfeasance
but not from an act of nonfeasance. 2.68
To help clarify the
distinction between misfeasance and
nonfeasance, Weinrib has suggested focusing not on the moment the defendant
failed to act to prevent harm to the plaintiff, but at the course of events
prior to that moment. 111 If there is no significant interaction
between the plaintiff and the defendant prior to that moment, the defendant's
conduct can be considered to be
nonfeasance.112 Participation by the defendant in the creation |
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107
Weinrib “The Case for a Duty to Rescue” (1980) 90(2) Yale
Law Journal 247 at 251-258. 108
Kortmann Altruism in Private Law (Oxford
University Press 2005) at 5. 109
Ibid, at 5-8. 110
Bohlen “The Moral Duty to Aid Others as a Basis of Tort
Liability” (1908) Univ Penn Law Rev 217 at 219. 111
Weinrib “The Case for a Duty to Rescue” (1980) 90 Yale
LJ 247 at 253 112
Weinrib “The Case for a Duty to Rescue” (1980) 90(2) Yale
Law Journal 247 at 253-54. Professor Weinrib gives the example of two
different scenarios: a car driver not pressing the brake and striking a
pedestrian, and a pool patron not throwing a rope to a drowning person. Id.
at 253. Looking only at the moment of injury, both situations pose instances
of nonfeasance; the driver failed to press the brake, and the observer failed
to throw a rope. Id. Looking to the events leading up to the injury, however,
the driver created the conditions resulting in injury, while the pool patron
did nothing to cause the drowning. Id. With this analysis, Professor Weinrib
suggests that the car driver is guilty of misfeasance 40 |
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of
the risk is thus the crucial factor in distinguishing misfeasance from
nonfeasance.113 As will be discussed below, this line of reasoning
also forms the basis for the “causation” argument against the imposition of
liability for acts of nonfeasance. 2.69
Feasance is often regarded as being more culpable
than nonfeasance. Kortmann notes that a reason for this may be due to the
fact that many acts imply an additional inaction. Honoré argued that
omissions are less culpable than acts that bring about the same or similar
outcome, other things being equal.114 He argued that hitting
someone is worse than not preventing someone from being hit.115
Honoré did state, however, that omissions that violate a distinct duty that
we owe others are usually as culpable as positive acts that violate those
duties.116 (c)
Individual Freedom 2.70
In the UK case Stovin v Wise,117 the argument in favour of
individual freedom was also put forward. Lord Hoffmann argued that omissions
require different treatment from positive conduct for the reason that it
would constitute an interference with individual liberty: “…it is
less of an invasion of an individual‟s freedom for the law to require
him to consider the safety of others in his actions than to impose upon him a
duty to rescue or protect.” 2.71
While the Commission appreciates that it may be
morally commendable to assist a person in need of rescue, it nonetheless
considers that the imposition of a positive duty to intervene would
constitute too great an infringement of an individual‟s freedom, an
important feature of the common law. |
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while
the pool patron's conduct is nonfeasance. Id.; see also Newton v Ellis 119
Eng. Rep. 424 (K.B. 1855) (holding that one who dug a hole near a road and
failed to light it at night was guilty of misfeasance because the inaction
(failure to light the hole) was preceded by an act (digging the hole)). 113 Weinrib “The Case for a Duty to Rescue” (1980)
90(2) Yale Law Journal 247 at 256. 114 Honoré
“Are Omissions Less Culpable?” in Cane and Stapleton (eds.) Essays for
Patrick Atiyah (1991) at 31. 115
Ibid at 48. 116
Ibid at 33. 117
[1996] 3 All ER 801. 41 |
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(d)
Economic Arguments 2.72
In Stovin v Wise,118
Lord Hoffmann stated that a legal obligation to undertake a rescue could
amount to the state appropriating the citizen‟s resources without
compensation. In other areas of tort law, price deterrence has been
established as a ground for the imposition of liability on a person who
causes loss or damage to others.119 If a person is held liable for
the damage and loss that they cause to others, this person will eventually
refrain from carrying out the harmful activity.120 As Lord
Hoffmann pointed out in Stovin v. Wise, the efficient allocation of
resources usually requires an activity should bear its own costs. He
considered that if an activity were able to benefit from being able to impose
some of its costs on other people, or „externalities‟ as they are
economically termed, the market would be distorted because the activity would
appear cheaper than it really is. Thus, liability to pay compensation for
loss caused by negligent conduct acts as a deterrent against increasing the
cost of the activity to the community. But there is no similar justification
for requiring a person who is not doing anything to spend money on behalf of someone
else. Lord Hoffmann noted that except in special cases (such as marine
salvage) the common law does not reward someone who voluntarily confers a
benefit on another. So there must be some special reason why he should have
to put his hand in his pocket. It would seem that Lord Hoffmann based his
conclusions here on the fact that inaction does not cause harm. If
this had not been the case then Lord Hoffmann‟s argument might easily
be extended to justify the imposition of the cost of harm on the person whose
failure to act had “caused” it. (e)
Altruism 2.73
Another argument involved relates to the
principle of altruism. As Weinrib has noted, “the problem of rescue is a
central issue in the controversy about
the relationship between law and morality”.121
The basic theory of altruism shows that persons are morally bound to assist
one another. A Good Samaritan is generally, therefore, said to act out of the
kindness in his or her heart. The Commission considers that a positive legal
duty to intervene to assist another, therefore, would run counter to this principle,
although it accepts that, in some
instances the law can impose a duty to behave in an altruistic |
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118
[1996] 3 All ER 801 at 819. 119
See Kortmann Altruism in Private Law (Oxford
University Press 2005) at 18- 23. 120
See Calabresi “Some Thoughts on Risk Distribution and the Law of Torts”
(1961) 70 Yale LJ 499. 121
Weinrib, The Case for a Duty to Rescue, 90 Yale L.J. 247,
293 (1980). |
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42 |
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manner,
as when imposing duties on parents and guardians.122 As the Kansas
Supreme Court stated in Union Pacific Railway Co. v Cappier:123 "feelings of kindness and sympathy may move the Good
Samaritan to minister to the sick and wounded at the roadside, but the law
imposes no such obligation; and suffering humanity has no legal complaint
against those who pass by on the other side." In this respect,
the Commission has concluded that while altruism plays an important part in
the formation of legal principles, the concept of forced volunteerism appears
to be a contradiction in terms. (f)
Causation 2.74
Weinrib notes that an absolutely necessary
feature of the law of tort is the causation of harm. He points out that
central to our conception of tort law are, firstly, „the bipolar procedure
that links plaintiff and defendant‟ and, secondly, the „causation of
harm‟. He states that the causation of harm requires an act that
results in suffering: “[S]uffering
by the plaintiff that is independent of the defendant‟s doing has no
significance for tort law. Accordingly, no liability lies for failure to
prevent or alleviate suffering.”124 2.75
As the Commission noted in the Consultation Paper,125 if inaction is incapable of causing harm,
then it cannot form the basis for a claim in negligence. If negligence were
to concern itself with inaction, this would be akin to creating a conduct
offence under negligence, which would go against the basis of negligence,
which seeks to redress those situations in which damage has been caused.
Kortmann points out the confusion, however, that has arisen between the issue
of causation and that of duty on the other hand.126 Our very
understanding of the term “cause” implies a positive interference rather than
a mere inaction. However, instances involving an affirmative duty to act do
not appear to present any particular difficulty in our acceptance of the
issue that inaction may, in fact, “cause” harm. It is Kortmann‟s
contention, therefore, that inaction is just as likely to give rise to harm
as positive action, however, it is only where there
is a duty to act that legal liability will arise. |
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122
See the critique of the approach to this issues in the
Consultation Paper in Byrne and Binchy, Annual Review of Irish Law 2007 (Round
Hall, 2008), pp.390-1. 123
72 P. 281 (1903). 124
Weinrib The Idea of Private Law (Harvard
University Press 1995), at 12-14. 125
LRC CP 47-2007 at paragraph 2.43. 126
Kortmann Altruism in Private Law (Oxford
University Press 2005) at 24-27. 43 |
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(g)
Indeterminate Number of Claims In Donoghue
v Stevenson127 Lord Atkin pointed out that to create a
positive duty to intervene could create a situation in which innumerable
claims could arise. He pointed out that the common law had, for this reason,
developed rules which limit the range of complainants and their remedies. In
addition, the Commission believes that, were moral wrongdoing to be a cause
of action, there could well be numerous types of damage which might be
difficult or even impossible to quantify. Certainly, what one person
considers immoral or wrong, another person might not. In this regard,
enforcing moral obligations could lead to much uncertainty in the law. In
particular, it has been argued that the recognition of moral obligations as
valid legal claims would destabilise written law by replacing it with the
varied morals of those sitting on the bench. 128 (h)
Several Tortfeasors / „Why Pick on Me?‟ Argument 2.76
Lord Hoffmann in Stovin v Wise stated that: “[a] duty to prevent harm to others or to render assistance
to a person in danger or distress may apply to a large and indeterminate
class of people who happen to be able to do something. Why should one be held
liable rather than the other?”129 2.77
The Commission considers this to be a compelling
argument in cases involving nonfeasance or passive inaction. The Commission
believes that the argument that each of the spectators is equally to blame
where none of them acted is an important one. Furthermore, unlike the
situation involving misfeasance, in cases of nonfeasance it will be difficult
to identify who exactly is responsible for the harm which has occurred.130
As noted in the Consultation Paper,131
cases of inaction do not afford the opportunity to analyse whose inaction is
most responsible for the harm. 2.78
The Commission acknowledges, however, the
argument that the difficulties posed by the “Why pick on me?” argument are no
less surmountable than those posed by ordinary negligence cases involving
many tortfeasors.132 In those cases, while the victim has the right
to only one recovery, each |
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127
[1932] AC 562. 128
Union Pacific Railway Co. v Cappier 72 P. 281 at
283. (Kan. 1903). 129
[1996] 3 All ER 801. 130
Kortmann Altruism
in Private Law (Oxford University Press 2005) at 16-17. Weinrib
“The Case for a Duty to Rescue” (1980) 90 Yale LJ 247 at 262. 131
LRC CP 47-2007 at paragraph 2.45. 132
Weinrib “The Case for a Duty to Rescue” (1980) 90 Yale LJ
247 at 262 |
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44 |
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|
tortfeasor
is liable to the victim and entitled to make a contribution with each of the
other tortfeasors. (3)
Conclusions 2.79
The submissions received by the Commission after
the publication of the Consultation Paper pointed out that a duty to
intervene has never been a characteristic of Irish law and that, in the main,
volunteers usually act for altruistic reasons and because they have a moral,
rather than legal, duty to intervene. A number of submissions also note that
a duty to intervene which may open individuals to civil liability might have
the unintended consequence of making them unwilling or afraid to volunteer or
to intervene in emergency situations which, the Commission considers, would
be inimical to the policy objectives set out in Chapter 1. 2.80
Having considered these submissions and reflected
again on the arguments that required consideration on this aspect of the
Attorney General‟s request, the Commission remains of the view that
there should be no reform of the law in this area so as to impose a duty on
citizens in general, or any particular group of citizens, to intervene for
the purposes of assisting an injured person or a person at risk of such
injury. 2.81
The Commission also notes that, in addition to
the arguments discussed above, it could also be said that the imposition of
affirmative duties could lead to indeterminate or large numbers of claims
thereby putting a strain on limited budgets, as well as provoking
detrimentally defensive approaches. The imposition of a duty to intervene
could also have other adverse effects on the provision of beneficial public
services which the Commission considers would be in conflict with the policy
objectives outlined in Chapter 1. 2.82
The Commission recommends that there should be no
reform of the law to impose a duty on citizens in general, or any particular
group of citizens, to intervene for the purpose of assisting an injured
person or a person who is at risk of such an injury. (4)
“Easy rescue” 2.83
The Commission noted in the Consultation Paper
that some commentators have taken a modified stance in advocating a so-called
“easy rescue,” in the sense of an intervention that poses little or no
inconvenience to the intervenor, rather than a general positive duty to
intervene.133 2.84
The Commission argued that while it may be more
reasonable to expect an individual to
conduct an easy rescue, the Commission found that |
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133
LRC CP 47-2007 at
paragraphs 2.47-2.50. See also the discussion in Weinrib “The Case for a Duty to Rescue”
(1980) 90 Yale LJ 247. |
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45 |
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there
is no greater legal basis for such an obligation than there is for a full
blown duty to rescue. The Commission noted that it was particularly concerned
about the uncertainty that the operation of such a duty might entail.134 2.85
Weinrib defends a duty of easy rescue, which
would require intervention provided that, firstly, the situation involved is
an emergency and, secondly, the intervention would involve no risk and little
other cost for the one who intervenes.135
Other commentators assert that a duty should arise whenever one
person is caught in a dangerous situation that another can alleviate at no
significant cost to himself or herself. The Commission observes that it has
also been argued that there has been a relaxation of the general principle
that there is no duty to intervene. In this regard, it has been remarked that
in recognising the merit of rescue and the desirability of encouraging it,
the courts have increasingly afforded favourable treatment to rescuers in recognising
claims for compensation by injured rescuers136 and ruling
unavailable defences such as voluntary assumption of risk and novus actus
interveniens. 137 2.86
The Commission noted in the Consultation Paper
that,138 while Irish law may not have gone
so far in this regard, it certainly seems to be the case that the courts are
less likely to consider these defences unless it can be shown that the
rescuer acted in some reckless or wanton way.139 Furthermore, as
outlined already, there are indications that the specific instances where the
law imposes a duty to intervene are capable of some expansion. The Commission
also notes that the experience of other jurisdictions is that a rescuer will
rarely be found liable unless he or she has acted wantonly or recklessly in
either assessing the situation or in reacting to the situation.140 2.87
In arguing for a modified duty to intervene,
Weinrib pointed out that the requirements of emergency and absence of
prejudice distinguish the duty to carry out an easy rescue from those duties
contemplated by the general no-duty to intervene rule. It has been argued
that a duty to carry out an easy rescue will not, for instance, unduly inconvenience the bystander. The relative
level of |
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134
LRC CP 47-2007 at paragraph 2.50. 135
Weinrib "The Case for a Duty to Rescue” (1980) 90
Yale LJ 247. 136
Ibid at 248. 137
Ibid. 138
LRC CP 47-2007 at paragraph 2.47. 139
Phillips v Durgan [1991] ILRM 321 cited in McMahon and Bin Torts
(3rd ed Butterworths 2000) at 581-584. 140
Weinrib “The Case for a Duty to Rescue” (1980) 90 Yale LJ
247 |
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ease
with which the bystander may intervene may be determined by referring to the
nature of the activity undertaken, e.g. a phone call to the emergency
services, or the level of skill of the particular bystander, e.g. a trained
paramedic may be in a much stronger position to administer CPR than an
untrained bystander. 2.88
The Commission notes, however, that a duty to
intervene which is qualified by the level of inconvenience that may be
encountered by the intervenor is of an uncertain nature. On the one hand, the
duty may oblige the bystander to do only that which takes the least effort,
as this is likely to cause the least inconvenience. However, such an
intervention is unlikely to benefit the injured stranger to any great extent
and, therefore, may be pointless. This lack of certainty is exacerbated by
the fact that the action necessitated by the duty to intervene would vary
from intervenor to intervenor depending on the particular skill set of the
person involved. Furthermore, clarification of the circumstances surrounding
the situation in which an easy rescue might be undertaken would pose a
virtually impossible task. For these reasons and the argument outlined above
as to the multitude of persons to whom liability might potentially attach,
the Commission recommends that considers that there should be no duty to
carry out an “easy rescue.” 2.89
The Commission recommends that there should not
be reform of the law to impose a duty to carry out an “easy rescue.” 2.90
The
Commission notes that this provides an answer to one of the questions posed
by the Attorney Generals‟ request. The Commission next turns to address
the situation where an individual “Good Samaritan” does intervene to help a
person in need and causes injury or harm in the process and, likewise, where
a person intervenes as a “volunteer” and causes injury to a person in his
care or for whom he or she is responsible. |
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47 |
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CHAPTER 3
DUTY OF CARE AND STANDARD OF CARE |
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A
Introduction 3.01
In Chapter 1, the Commission considered the wider
policy setting and background against which the Attorney General‟s
request was received and noted the importance of promoting active citizenship
in Ireland. In Chapter 2, the Commission recommended that there should be no
general duty either to intervene as a Good Samaritan or to act as a
volunteer. 3.02
In this
Chapter, the Commission analyses the extent to which a voluntary
intervention, by either a Good Samaritan or volunteer, can be subject to a
duty of care under the law of negligence and also examines the standard of
care to be applied in that event. In Part B, the Commission sets out the
principles of negligence as they apply to Good Samaritans, voluntary rescuers
and voluntary service providers. In Part C, the Commission examines the duty
and standard of care of Good Samaritans. In Part D, the Commission analyses
the duty and standard of care of voluntary rescuers. In Part E, the
Commission discusses the duty and standard of care of other volunteers and
voluntary service providers. In Part F, the Commission discusses why it
considers that the duty and standard of care of Good Samaritans and
volunteers should be set out in legislation. B
Law of Negligence (1)
Introduction 3.03
The law of negligence exists to compensate
persons who are injured through the act or omission of another. The injured
person, or the plaintiff, sues the wrongdoer or defendant for a “failure by
the defendant to conform to the required standard of behaviour.”1
Therefore, the tort of negligence is concerned with a failure on the
defendant‟s part to exercise the level of care which the law deems to
be due to the plaintiff. The level of care expressed to be required is
“reasonable care in the circumstances”. Thus, in the wake of leading
decisions |
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1
McMahon and Binchy Irish Law of Torts (3rd
ed Butterworths 2000) at paragraph 7.01. |
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49 |
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such
as Donoghue v Stevenson,2 a person must take reasonable
care to avoid acts or omissions which would be likely to harm any person that
they ought reasonably to foresee as being so harmed in the circumstances
prevailing. The main problems in this regard include the determination of which
circumstances are relevant in a given instance and the evaluation of what is
“reasonable”. 3.04
The Commission notes that there are four elements
of the tort of negligence, developed.3 These are: (1)
Duty of care: the existence of a legally recognised obligation
requiring the careless person to conform to a certain standard of behaviour for the protection of others
against unreasonable risks.4 (2)
A failure to conform to or a breach of the required standard of care. (3)
Actual loss or damage to recognised interests of the reasonably
foreseeable person affected by the failure to conform to the standard (4)
A sufficiently close causal connection between the conduct and
resulting injury to the plaintiff. 3.05
The Commission notes that several elements of the
tort of negligence will often be discussed together without any attempt to
analyse them separately. The Commission proposes, however, to discuss each of
these elements separately so as to set out the principal issues involved in an
analysis of whether the Good Samaritan or volunteer comes under a duty to act
with reasonable care. (2)
Duty of Care 3.06
It was noted in the English case Le Lievre v
Gould5 that a person “is entitled to be as negligent as he
pleases towards the whole world if he owes no duty to them”. And so, the
question arises as to what is meant by “duty”. McMahon and Binchy point out that the duty concept is “a control
device |
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2
[1932] AC 562, the decision of the UK
House of Lords in which, as discussed in Chapter 2, the tort of negligence
was developed by reference to the parable of the Good Samaritan. 3
McMahon and Binchy Irish Law of Torts (3rd
ed Butterworths 2000) at paragraph 7.01. 4
Ibid. 5
[1893] 1 QB 491 at 497 (CA), quoted with approval
by Fitzgibbon LJ in Petrie v Owners of SS “Rostrevor” [1898] 2 IR 556
at 575 (CA). |
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50 |
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whereby
the courts may, as a matter of law, limit the range of liability within what
they consider to be reasonable bounds”.6 In other words, an
individual will only be liable for harm done to another where he or she owes
a duty to that other. The Commission notes that discussion of the duty of
care concept has focused mainly on how it relates to the range of persons to
whom the defendant may be obligated.7 The Commission observes,
however, that courts will also take into account the type of damage or injury
when determining whether a duty of care is owed.8 For instance, it
is more likely that a court will find a duty to exist in circumstances where
the damage is physical rather than where it may be classified as “pure
economic loss” or “nervous shock.” 3.07
In Glencar Exploration plc. v Mayo County
Council,9 the Supreme Court stated that in order to establish
a duty of care it must be shown that: •
there is proximity between
the alleged duty holder and the injured person; •
the injury or damage caused was reasonably
foreseeable by the alleged duty holder; • it is just
and reasonable to impose a duty of care. 3.08
Regarding “proximity”, McMahon and Binchy suggest
that it is perhaps synonymous with “neighbourhood”, which implies a closeness
between the parties that is not confined to considerations of space and time.10 3.09
The next step in establishing whether a duty
exists necessitates an examination of whether it was reasonably foreseeable
that the intervention would injure the stranger.11 The use of the
reasonable person indicates that the analysis should be objective rather than
subjective. In other words, it should be based on the standards of the
community and not the individual perspective of the defendant. In this
regard, the analysis seeks to calibrate the knowledge possessed by the
defendant against the knowledge possessed by the reasonable person in similar
circumstances. Thus, the court will look to the |
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6
McMahon and Binchy, Law of Torts 3rd
ed (Butterworths, 2000), at 115. 7
As in Donoghue v Stevenson [1932] AC 562. 8
In other
words whether a claim is for personal injury, physical damage to property,
pure economic loss or nervous shock. 9
[2002] 1 IR 84. See also Fletcher v
Commission for Public Works [2003] 1 IR 465. 10
McMahon and
Binchy Law of Torts (3rd ed. Butterworths 2000) at 119. 11 Overseas Tankship (UK) Ltd v Morts Dock &
Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388 (UK House of Lords). |
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51 |
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knowledge
that would be expected of a reasonable person in similar circumstances to the
particular case at hand.12 3.10
The final step requires an investigation as to
whether it would be “just and reasonable” to impose a duty of care. This
third element is also sometimes referred to as the policy factor. Prior to Glencar
Exploration plc v Mayo County Council,13 a two-stage test that
accorded a lesser weight to public policy concerns
had been used.14 In the Glencar decision,
the Supreme Court restated the principles of the duty of care in negligence.15
Delivering one of the judgments in the Supreme Court, Keane C.J.
considered it desirable to add a third requirement, the „just and reasonable‟
test, favoured by the UK House of Lords in Governors of Peabody Donation
Fund v Sir Lindsay Parkinson & Co Ltd16 and later
decisions of the House of Lords.17 Therefore, added weight is now
given to the evaluation of whether it is just and reasonable to impose a duty
of care in the circumstances. 3.11
Specifically, the just and reasonable test looks
at broad considerations of social policy in deciding whether a duty of care
is owed. There must be no issues of public policy which could negative, limit
or reduce the scope of the duty of care, the class of persons to whom it is
owed or the amount of damages that are recoverable. In this regard, McMahon
and Binchy note that the court may decide that it is not in society‟s
best interests that a defendant, and others similarly acting, should
compensate persons injured by the
particular conduct as this might deter other persons from engaging in that |
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12
The Commission points out that a greater knowledge
may be expected of a person who is particularly skilled in the area of
rescue, such as a voluntary rescuer or medically qualified person where an
intervention of rescue is concerned. 13 [2002] 1 IR 84. See also Fletcher v
Commission for Public Works [2003] 1 IR 465. 14
In the UK House of Lords decision Anns v Merton
London Borough Council [1978] AC 728, Lord Wilberforce stated
that once a duty of care had been found: “it is necessary to consider whether
there are any considerations which ought to negative, or to reduce or limit
the scope of, the duty or the class of person to whom it is owed or the damages
to which a breach of it may give rise.” This was endorsed in Ireland by the Supreme Court in Ward v McMaster [1988]
IR 337. 15
For a detailed analysis see Byrne and Binchy, Annual
Review of Irish Law 2001 (Thomson Round Hall 2002). 16
[1985] AC 210. 17
This test had also been preferred by Costello J.
in his High Court decision in Ward v McMaster [1988] IR 337. |
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52 |
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conduct
in the future.18 In this way, the courts, in the majority of
cases, set out the scope of the duty of care so as to accomplish various
social goals. Given the policy considerations regarding Good Samaritans and
volunteers, as outlined in Chapter 1, this evaluation is particularly
important in the context of this Report. (3)
Standard of Care 3.12
Once a duty has been established the focus of the
analysis moves to the standard of care issue. In this regard, McMahon and
Binchy note that the courts tend to ask whether the defendant acted as “the
reasonable person” would have done. This is an objective test. In Kirby v
Burke, in which the general concept of a duty of care in negligence was
first established in Irish law, Gavan Duffy J. stated: “the foundation of liability at common law for tort is
blameworthiness as determined by the existing average standards of the
community; a man fails at his peril to conform to these standards. Therefore,
while loss from accident generally lies where it falls, a defendant cannot
plead accident if, treated as a man of ordinary intelligence and foresight,
he ought to have foreseen the danger which caused injury to his plaintiff.”19 3.13
The defendant must, therefore, exercise such care
as would be exercised by the reasonable person in similar circumstances.
Seavey points out that regard must be had, however, to the characteristics of
the group to which the defendant belongs,20
including physical and mental characteristics, moral qualities and skill.
This introduces a subjective element into the test to assess the appropriate
standard of care. Thus, the standard of care to apply will vary depending on
the level of skill of and knowledge possessed by the actor. 3.14
McMahon and Binchy have set out the factors to
which the courts have regard in assessing the standard of care required:21 The
probability of an accident caused by the defendant‟s conduct:
this is closely related to the issue of foreseeability. The greater the
likelihood of harm to the plaintiff, the more probable it is that |
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18
McMahon and Binchy Law of Torts (3rd
ed. Butterworths 2000) at 116-117 19
[1944] IR 207. 20
Seavey “Negligence – Subjective or Objective?”
(1927-1928) 41 Harv L Rev 1 cited in McMahon and Binchy Irish Law of Torts
3rd ed (Butterworths 2000) at 149. 21
McMahon and Binchy Law of Torts (3rd
ed. Butterworths 2000) at 154-167 (footnotes omitted). |
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53 |
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the court
will consider it unreasonable for the defendant to engage in the
conduct in question or to fail to take steps to avoid
the threatened injury. The gravity of
the threatened injury: where the potential injury is great, the
creation of even a slight risk may constitute negligence.
The cost of eliminating the risk: this concept is more suited to those carrying on activities in an
organisational setting in that it refers to
the cost of implementing safeguards around an activity. The social utility
of the defendant’s conduct: where the defendant‟s conduct has
a high social utility it will be regarded with more indulgence
than where it has none. 3.15
McMahon and Binchy point out that “itemising
these factors can give no indication of their weight in any particular case:
determining this question involves a
complex value-judgment, rather than merely some mathematical process.”22 3.16
In applying these principles to the type of
scenario contemplated, the Commission understands that the common law
standard of care to be expected of persons who intervene to assist someone in
danger will vary according to their level of experience and the particular
circumstances of the case. For instance, in the case of a doctor, the court
would consider how a reasonable doctor with the same qualifications and
background would have acted in a similar situation, for example, without
equipment and hospital facilities. These circumstances must be taken into account
as even where an individual has medical qualifications, it would not be fair
to hold him or her to the same standard of care as would be expected in a
hospital or practice setting when he or she just happens upon an accident.
Therefore, in determining whether the rescuer has met the standard of care,
the courts must consider what is reasonable in the circumstances prevailing.23 (4)
Definitions (a)
Good Samaritans 3.17
In the
Consultation Paper, the Commission concluded that a “Good Samaritan” refers
to: |
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22
McMahon and Binchy Law of Torts (3rd
ed. Butterworths 2000) at 112. 23
Eburn Emergency Law 2nd ed.
(Sydney: Federation Press, 2005), pp.45-48, notes that courts acknowledge
that the rescuer may be acting in situations outside their experience. |
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54 |
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“Any
person who intervenes voluntarily (without legal obligation or expectation of
reward), to assist a person (using any reasonable means), who he or she
reasonably believes (based on reasonable, objective criteria), to be ill,
injured or at risk of illness, injury or death (where illness includes
unconsciousness).”24 3.18
The Commission noted that the Good Samaritan
might be an unskilled passerby, an off-duty voluntary service provider or an
off-duty professional. These distinctions may be relevant to identifying the
appropriate standard of care. The traditional scenario is that he or she
happens upon an accident or emergency unexpectedly, when he or she is
unprepared to deal with it. An example of a situation involving a Good
Samaritan would be where an individual, who, for example, is out for a
stroll, comes across a stranger who has collapsed in the street, been
involved in a car accident or got into difficulty in the water. In these
scenarios the stranger has no means of helping himself or herself and so
requires outside intervention to abate the risk that he or she faces. The
individual out for a stroll happens upon the scene unexpectedly and is
presented with the choice of intervening, with minimal resources to hand, to
assist – thereby becoming a Good Samaritan - or walking on. (b)
Voluntary Rescuers 3.19
As discussed in the Consultation Paper, a
“voluntary rescuer” can be said to be any person who is a member of a
voluntary rescue organisation, providing a structured response, who is
trained and equipped to deal with situations of accident and emergency and
has some level of expectation that an accident or emergency will arise.25
A voluntary rescuer may be any person who has received the requisite amount
of training, whether he or she is a layperson or an off-duty professional.
The voluntary rescuer spends time training and attaining a certain level of
skill and expertise in certain rescue techniques and practices.
Furthermore, voluntary rescuers often work in defined areas of coverage and
take responsibility for responding to any accident or emergency that occurs
in that area. Therefore, it could be said that the voluntary rescuer holds
himself or herself out, more so than a Good Samaritan, as willing and able to
intervene in the event of a crisis.26 3.20
Examples of voluntary rescuers are given by the
Pre-Hospital Emergency Care Council
(PHECC), the State body with responsibility for |
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24
LRC CP 47-2007 at paragraph 3.02. 25
LRC CP 47-2007 at paragraph 3.57. 26
See Barnett
v Chelsea and Kensington Management Committee [1969] 1 QB 428. |
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55 |
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standards in
pre-hospital emergency medical services.27
These include the Civil
Defence, the Irish Coast Guard, the Irish Heart Foundation, Irish Mountain
Rescue, Irish Red Cross, Irish Society for Immediate Care, Order of Malta
Ambulance Corps and St. John‟s Ambulance Brigade. (c)
Voluntary Service Providers 3.21
In the Consultation Paper, the Commission
concluded that the term “voluntary service provider” referred to those
members of the Voluntary and Community sector that provide services, of their
own free will and without payment, for
the benefit of society.28 The Commission
observed that a voluntary service provider is just as likely to be an
individual as an organisation. Where the voluntary service provider is an
individual, a distinction can be drawn between those individuals defined as
“informal volunteers”, who work independently, and those defined as “formal
volunteers”, who work with an organisation. 3.22
The voluntary service provider may be involved in
a very wide range of services and activities, particularly involving the
provision of not-for-profit social services and social inclusion activities.
The range of services provided by the voluntary service provider, therefore,
may be much broader than that of the Good Samaritan or voluntary rescuer.
Furthermore, the activities will not necessarily be of an inherently
dangerous nature. Finally, the Commission noted that the voluntary service
provider, unlike the Good Samaritan or the voluntary rescuer, may be
responsible for creating the risk that has led to the individual‟s
predicament. C
Duty and Standard of Care of Good Samaritans (1)
Duty of Care 3.23
In the Consultation Paper, following a detailed
analysis of the principles of negligence, the Commission concluded that Good
Samaritans may come under a duty to act with reasonable care.29
The Commission considers broadly that liability for harm to another may be
recognised when, having no prior duty to do so, the Good Samaritan takes
charge of another who is helpless. The Good Samaritan in such a situation
will be subject to liability for injury to that other where the Good
Samaritan fails to exercise reasonable care in
securing his or her safety or discontinues providing aid or protection and |
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27
See www.phecc.ie 28
LRC CP 47-2007 at paragraph 3.99. 29
LRC CP 47-2007 at paragraphs 3.02 – 3.56. |
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56 |
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leaves the
victim in a worse position.
In the Canadian case Horsley
v MacLaren,30
Schroeder JA stated: “[E]ven if
a person embarks upon a rescue and does not carry it through, he is not under
any liability to the person to whose aid he had come so long as
discontinuance of his efforts did not leave the other in a worse condition
than when he took charge.” 3.24
The Commission notes that, particularly in the
case of rescue situations entailing physical intervention, it is highly
likely that the relationship between the Good Samaritan and the stranger will
be recognised as one of sufficient proximity so as to give rise to a duty of
care. In many cases, it may be held that a Good Samaritan had voluntarily
assumed responsibility by intervening in the situation.31 In the
UK case Hedley, Byrne & Co Ltd v Heller & Partners Ltd,32 it was held that liability can exist where
one party relies on another‟s special skill and trusts him to exercise
due care and that other knows or ought to have known that the party was so
relying on the special skill. As Lord Morris in the House of Lords stated: “if someone possessed of a special skill undertakes…
to apply that skill for the assistance of another person who relies upon
that skill, a duty of care will arise.”33 3.25
Thus, where a Good Samaritan voluntarily
intervenes in favour of a stranger, provided the stranger relies on this
voluntary intervention, and the Good Samaritan knows that the stranger is so
relying on his or her intervention, a duty of care may arise. The case may be
even stronger in situations where the Good Samaritan advertises that he or
she is especially skilled in an area relevant to the rescue intervention, for
example, if he or she were to state “trust me, I‟m a doctor.” Such an
announcement might induce in the imperilled person a confidence in the Good
Samaritan‟s skills such that he or she would be more inclined to rely
on the Good Samaritan‟s intervention. 3.26
The voluntary intervention or undertaking may be
an express promise or one implied from the actions of the Good Samaritan.
Regardless of whether it is express or implied, the Commission considers that
a promise to rescue is, in effect, a promise to endeavour to rescue and not
one to achieve a successful |
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30
[1972] SCR 441. 31
See Kortmann, Altruism in Private Law (Oxford
University Press 2005) at 58-68. 32
[1964] AC 465, cited with approval by the
High Court in Securities Trust Ltd. v Hugh Moore & Alexander
Ltd. [1964] IR 417. 33
[1964] AC 465 at 502-503. |
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outcome
upon intervention.34 Given that the nature and content of a
promise to endeavour is less specific than that of a promise to achieve a
particular result, it lends itself less to being interpreted as an
enforceable obligation. It is also important to point out that generally the
law will refrain from enforcing a simple promise or statement of intention,
unless made in contractual relations or unless it can be shown that there was
reasonable reliance of which the voluntary service provider was aware. 3.27
There are a number of actions which a Good
Samaritan could potentially undertake to assist a stranger. Situations may
range from those in which the Good Samaritan alerts the stranger himself or
herself to an imminent risk or alerts the emergency services to the situation
involving the stranger to those involving a more direct and physical act of
intervention, for example, in the provision of first aid assistance.35
The more invasive or direct the intervention, the more likely it is that a
duty of care will arise. Given the risk of injury to the stranger,
foreseeability of harm is more readily established in such situations. 3.28
Looking at the issue of reliance, the Commission
points out that a Good Samaritan, by his or her voluntary intervention, may
cause the stranger to rely on him or her, which in turn will give rise to a
relationship of proximity. The Commission considers that the term “reliance”
implies that the stranger, in whose affairs the Good Samaritan has
intervened, had the opportunity to choose between the course of conduct
advised by the Good Samaritan and alternative courses. In a rescue this
scenario will not always be the case. Where the stranger does have a choice,
the Commission considers that reliance may mean that the stranger has changed
his or her position on faith of the intervention by the Good Samaritan. 3.29
For the issue of reliance to have any legal
implications, the Commission notes that the Good Samaritan must also be aware
that the stranger is relying on his or her intervention. Such reliance must
be objectively reasonable taking into account the circumstances of the
rescue, including the availability of alternative courses of action, as well
as other relevant factors such as the identity of the Good Samaritan. The
Commission accepts that the law is reluctant to recognise non-detrimental
reliance as a ground for holding the Good Samaritan liable for his or her
intervention as such reliance implies that the stranger has not succumbed to
actual injury or damage because of the reliance itself. In other words, this
means that the stranger will be no worse off having changed his position on
faith of the Good Samaritan‟s intervention. However, the Commission
observes that it is uncertain whether a Good |
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34
LRC CP 47-2007 at paragraphs 3.10-3.12. 35
LRC CP 47-2007 at paragraph 3.14. |
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58 |
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Samaritan
could be held liable for speeding up the arrival of the inevitable
consequence, i.e. illness, injury or death, of a perilous situation.
Detrimental reliance, on the other hand, suggests that the stranger has
changed his or her position for the worse based on the intervention of the
Good Samaritan. This is more likely to give rise to a duty of care, as the
Good Samaritan‟s intervention has caused the stranger to be in a
position of greater risk or to sacrifice a potentially more successful
alternative option. 3.30
Thus, the Commission notes that where the
voluntary intervention is constituted by a promise to the stranger, the
element of reliance, if it exists, will be readily discernible. Where the
voluntary intervention is a voluntary act, however, the issue of whether the
element of reliance is present may depend on the nature of the act involved
i.e. whether the Good Samaritan becomes directly involved or merely alerts a
third party to the stranger‟s predicament. As already noted, it is more
likely that the stranger will rely on the Good Samaritan where the Good
Samaritan‟s involvement is direct and physical rather than where it is
indirect, for example, when the Good Samaritan alerts a third party. It is in
the former situation, then, that the conditions are more amenable to giving
rise to a relationship of proximity. 3.31
The Commission acknowledges that the stranger will not always be in a
position to decide whether or not to rely on the Good Samaritan‟s
intervention, either because no alternative exists or because the stranger is
incapable of making a choice, for instance, where he or she is unconscious.
Such rescue situations may be more accurately described as relationships of control and dependence.36 Kortmann
points out that the law may be reluctant to recognise such relationships as
giving rise to a duty of care but the Commission considers that there
is nonetheless a possibility.37 3.32
The Commission notes that control may relate to
the respective powers of the parties involved, with the Good Samaritan
obviously occupying the stronger position by being capable of taking control
of the situation. Control might also suggest that the Good Samaritan
intentionally takes charge of the situation, by express statement of intention
or by implication of his or her conduct. Under this interpretation, there are
a number of ways by which the Good Samaritan might take control such as
alerting the stranger to the risk, alerting the emergency services to the
risk or, at the higher end of the scale, taking complete control of the
situation. This might occur where the Good Samaritan possesses special skills
in relation to the situation. It is important to note that an assumption of
control, in this sense, might lead to the exclusion of other possible sources
of assistance. Where this condition prevails and where |
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36
Kortmann Altruism in Private Law (Oxford
University Press 2005) at 64. 37
Ibid. |
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59 |
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it is
coupled with the dependence of the stranger, the Commission considers that a
relationship of proximity sufficient to give rise to a duty of care could
certainly be established - provided the other duty of care requirements were
also established. 3.33
The Commission notes that, in many cases, the
stranger may have no choice but to succumb to the will of the Good Samaritan
either because there are no alternatives or, indeed, no real alternatives to
the Good Samaritan‟s intervention, particularly in the case of imminent
injury or death. As the Commission has already pointed out, there may also be
situations in which the stranger is incapable of choosing. In such
situations, it may be asserted that the Good Samaritan acts on behalf of the
stranger when he or she assumes control. The Good Samaritan must, therefore,
be aware that his or her decisions and actions may have a direct impact on
the well-being and life of the stranger and that he or she may easily
aggravate any existing condition or, indeed, create a new risk of harm.
Bearing this in mind, the Commission considers that such a voluntary
intervention may signify that the Good Samaritan appreciates the gravity of
the situation, for which he or she accepts to take responsibility. 3.34
The next step is a determination of whether
injury was a reasonably foreseeable result of the intervention. Where it can
be shown that the Good Samaritan knew or ought to have known that his or her
intervention would injure the stranger, it might be asserted that the Good
Samaritan ought to have modified his or her conduct. The Commission notes
that foreseeability may also depend on the circumstances of the case. For
instance, where the stranger is in a particularly dangerous situation, it is
clear that the risk of injury will be greater and, therefore, more
foreseeable.38 3.35
The extent to which the Good Samaritan is aware
of what has given rise to the stranger‟s predicament will be an
important consideration in the analysis of foreseeability. The type of
intervention undertaken by the Good Samaritan will also be relevant. Injury
may be more likely where the Good Samaritan undertakes an invasive
intervention such as medical intervention, than a non-invasive intervention
such as one which entails contacting the emergency services. Furthermore, it
is important to consider the type and level of skill that might be attributed
to the Good Samaritan. For instance, if a Good Samaritan undertakes an
intervention for which he or she does not have the requisite level of skill
the likelihood and, therefore, the foreseeability of further injury occurring
is greater. |
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38
The Commission notes that some damage may be
actionable even where it is not readily
foreseeable, as with the operation of the Egg-Shell Skull Rule. See Burke
v John Paul & Co Ltd [1967] IR 227. |
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60 |
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3.36
It must also be borne in mind that there may be
situations in which injury is an inevitable consequence. The Commission notes
that it is uncertain whether a Good Samaritan would be held liable for an
injury that he or she foresaw where that injury was either necessary to or
unavoidable in the overall rescue operation. In addition, the Commission
notes that, further to the issue of proximity, the Good Samaritan may be in a
better position to anticipate injury where the reliance is of a detrimental,
as opposed to a non-detrimental, nature. The Commission accepts, however,
that this argument is quite theoretical in nature and would be unlikely to
apply to the actual Good Samaritan situation. 3.37
Having considered the extent to which these
circumstances coincide, it may of course be the case that a duty of care
cannot be imposed on the basis that it would not be “just and reasonable” to
do. On the one hand, the Good Samaritan is said to be a person who is
performing activities for the benefit of society and, therefore, should be
encouraged. To impose liability on a Good Samaritan might have the effect of
deterring Good Samaritans from intervening in future cases. A finding for the
stranger would create a precedent for claims against Good Samaritans, a class
of person that, typically, does not have the benefit of the protections such
as advice, training and insurance policies, available to those involved in
organisations. On the other hand, the law should not unduly prejudice the
stranger who, by virtue of the predicament in which he or she found himself
or herself, may be particularly vulnerable. Furthermore, it is asserted that
a finding of liability may dissuade individuals, such as those who would
otherwise be willing to intervene in a rescue situation, from undertaking
dangerous activities. This would, thereby, create an environment in which
imperilled individuals would have no choice but to fend for themselves. The
Commission considers that each of these arguments merits attention. 3.38
On the basis of the foregoing analysis, the
Commission concludes that there is nothing to prevent a Good Samaritan from
being subject to a duty of care.
In this regard, it has been shown that the general principles of
negligence actually point towards the imposition of a duty of care in certain
circumstances, in particular where the Good Samaritan is a person with a
clear degree of medical skill. Of course, in reality the Commission accepts
that the likelihood of such liability being imposed is remote, given that a
Good Samaritan is often actually engaged in saving life, and that the social
utility of the intervention will militate against liability because it would
not be “just and reasonable” to do so. (2)
Standard of Care 3.39
The Commission therefore turns to consider the
standard of care to be applied to a Good Samaritan, where it has been found
that he or she owes the stranger a duty of care. The Commission notes that
the standard of care will vary with the
individual Good Samaritan, depending on the Good Samaritan‟s |
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61 |
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level
or lack of skill. In analysing the standard of care, the courts will look
firstly at the probability of harm and the gravity of the threatened injury.
The Commission considers these to be difficult concepts to apply to the
scenario involving the Good Samaritan. The Good Samaritan will normally
intervene in a situation where the independent risk of harm occurring exists,
even if this is, in reality, unusual. 3.40
The Commission considers that where the Good
Samaritan undertakes a direct and physical intervention, the probability of
harm occurring is clearly higher. So too is the risk of serious injury. On
the other hand, where a higher level of skill is possessed by the Good
Samaritan, it might be expected that he or she will be better able to assess
the situation and decide on the most appropriate response. The Commission
emphasises, however, that irrespective of skill the Good Samaritan will not
always be privy to the circumstances which have given rise to the stranger‟s
predicament or the nature and extent of the stranger‟s injury. It might
not, therefore, be fair to hold the Good Samaritan liable for doing something
which he or she might not have done had he or she been fully aware of the
circumstances. Furthermore, in assessing the gravity of the threatened
injury, the court will need to balance the risk posed by the Good Samaritan‟s
intervention (more likely, as already noted, to result in a life saved
through CPR or AEDs) against the risk posed by the independently created
emergency situation (more likely to result in death without an intervention). 3.41
An examination of the cost of eliminating the risk does not fit very
well in the Good Samaritan analysis given the spontaneous and one-off nature
of such an intervention. The Commission considers that a Good Samaritan will
rarely, if ever, be in a position to implement risk management measures in
advance of an intervention. However, the Good Samaritan may be expected to
consider the various interventions that are open to him or her upon coming across the stranger‟s predicament and to
choose the option which is least risk-associated. The Commission notes
that the Road Safety Authority‟s Rules of the Road39 advise
persons to refrain from rendering physical assistance where it is
safer to alert the emergency services. However, this analysis could be
problematic where direct, physical intervention is urgently required. The
Commission notes that it is important to recall the other side of the cost argument which relates to the potential cost to
society should Good Samaritans be deterred
from intervening in emergency situations. 3.42
The most important concept in the analysis of the
standard of care to be applied to the Good Samaritan is the social utility of
his or her conduct in intervening to assist a stranger in need. In the
context of social utility, the Commission notes that saving a life may
justify taking risks which would not be |
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39
Available at www.rsa.ie |
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62 |
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permissible
in the case of ordinary commercial enterprise. This is particularly relevant
when one considers, as already noted, that the Good Samaritan‟s
intervention in many cases may mean the difference between life and death.
Furthermore, the Commission points to the enormous social benefit in
encouraging those with specialist life-saving skills to intervene. 3.43
Based on this analysis, the Commission considers
that numerous standards may be set for the Good Samaritan, based on the level
of knowledge and skill of the particular individual, at the risk of not
paying adequate regard to the social utility of the Good Samaritan‟s
intervention. In the Commission‟s view, the key is to apply a standard
that will appreciate the various skills that may be possessed by Good
Samaritans while also acknowledging the social utility of the Good Samaritan‟s
intervention. The Commission returns to the precise scope of this standard of
care in Chapter 4. D
Voluntary Rescuers (1)
Duty of Care 3.44
Voluntary rescuers and their organisations play a
lead role in terms of major emergency management.40 In particular, voluntary rescuers support the work of
statutory bodies, both by complementing existing services and by providing
additional services. The Commission underlines the importance of considering
this role and the extent to which it benefits society when making any
recommendations. 3.45
Applying the general principles of negligence,
the Commission notes that there is little to preclude voluntary rescuers from
coming under a duty of care. First, similar to the Good Samaritan, a
relationship of proximity is likely to be established once the
voluntary rescuer intervenes. As with the Good Samaritan, the voluntary rescuer
may make an undertaking upon which the recipient of the service may rely. The
voluntary rescuer‟s undertaking, or intervention, may take the form of
a promise or a voluntary act. For example, a promise to intervene may arise
where the voluntary rescuer, like the Good Samaritan, agrees to respond to
the predicament of a particular individual.41 3.46
A voluntary act of the voluntary rescuer may be
an act in favour of the individual in need or, indeed, any act done on behalf
of the voluntary |
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40
Report of the Inter-Agency Review Working Group
on Major Emergency Management (supported by the Department of
Environment, Heritage and Local Government Review Project Team 12 September
2006). 41
In the English case Kent v Griffiths [2000] 2 All ER 474, a statutory ambulance
service provider was held to owe a duty of care, once it agreed to respond to
an emergency. |
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63 |
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organisation.
Like the Good Samaritan, the voluntary rescuer may intervene indirectly in
the rescue by alerting the individual to a danger or advising him or her on
how to remove themselves from the danger. Alternatively, the voluntary
rescuer may become directly involved by physically intervening. The
Commission also appreciates that there may be incidents to which the
voluntary rescuer is unable to provide an adequate response. In such cases
the voluntary rescuer may request outside assistance, for instance, from the
emergency services or colleagues from the organisation who have different
skills. The voluntary rescuer, however, may be expected to secure the scene
temporarily or to assist the individual until the emergency services etc
arrive. Again, the more invasive the intervention undertaken by the voluntary
rescuer, the greater is the potential risk of injury. 3.47
Reasonable reliance may also be an element of the
scenario involving the voluntary rescuer.42 In this regard the
individual in need may change his or her position relying on the voluntary
rescuer‟s intervention. In fact, the individual may be more likely to
rely on the expertise of a voluntary rescuer than on that of an average Good
Samaritan. While the Commission recalls that what might be considered
objectively reasonable in a rescue situation may be a far cry from what is
ordinarily termed objectively reasonable, it notes that reliance on the
intervention of a skilled voluntary rescuer could rarely be considered
unreasonable. As already noted, the voluntary rescuer commits a certain
amount of time to attaining a particular level of skill and thus indicates
that he or she is willing and able to respond to an accident or emergency
should it arise.43 The Commission appreciates, however, that
voluntary rescuers neither have, nor hold themselves out as having, unlimited
skills and, thus, only a certain level of reliance may be considered
reasonable. 3.48
Once again, the more physical or invasive the
action of the voluntary rescuer, the more likely it is that the individual
will rely directly on him or her. Where a voluntary rescuer decides to give
advice to the individual, the Commission believes that it is more likely that
the individual will rely to some extent on his or her own counsel. Where the
voluntary rescuer calls for outside assistance, it is likely that the
individual will transfer his or her reliance from the voluntary rescuer to
whoever takes over the rescue. 3.49
Furthermore, the individual may find that he or
she has no choice but to rely on the voluntary rescuer‟s intervention.
This may be the case in |
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42
Hedley, Byrne & Co Ltd. v Heller &
Partners Ltd. [1964] AC 465 cited with approval by the
High Court in Securities Trust Ltd. v Hugh Moore & Alexander Ltd. [1964]
IR 417. 43
See Barnett v Chelsea & Kensington
Management Committee [1969] 1 QB 428 cited in McMahon and Binchy Law
of Torts (3rd ed Butterworths 2000) at 62. |
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64 |
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scenarios
where there is a lack of comparable alternatives or the individual is, for
some reason, incapable of choosing. Certainly, by virtue of his or her skill
and the reputation of his or her organisation, the voluntary rescuer may be
in a stronger position to assert control over a rescue situation than any
other potential intervener who might qualify as a Good Samaritan. In many
cases, the voluntary rescue organisation will have strategically placed
itself at high risk locations, thereby representing that it is willing to
intervene in any rescue situations which might arise in that particular
location. Moreover, as voluntary rescue organisations often supplement the
services of statutory bodies it may, in fact, be the only or most skilled
rescue option available. 3.50
It should also be remembered that the individual
may be in a particularly precarious situation, be ill, injured or
unconscious. In such circumstances, he or she may be incapable of choosing
between the voluntary rescuer‟s intervention and any alternatives. As a
result, it might be more accurate to describe the individual as being in a
state of “dependence” rather than “reliance”. In tandem with this, it should
also be noted that the voluntary rescuer‟s particular expertise means
that he or she is exceptionally well-placed to assert control over the rescue
situation. In this regard, the voluntary rescuer may either assert total
control over the operation, conducting the rescue from start to finish, or,
where responsibility for completing the rescue rests with an outside party,
partial control to the extent that the voluntary rescuer temporarily secures
the scene or abates the risk. Given the likelihood that power will be
distributed in such a way, the Commission believes that the relationship
arising in situations involving the voluntary rescuer is more likely to be
one of dependence and control than reliance and undertaking. 3.51
Regarding the issue of
foreseeability, the Commission considers that, as the voluntary
rescuer‟s intervention is likely to be direct and physical, injury to
the individual may be a foreseeable risk in most cases. However, given the
training and experience of the voluntary rescuer, the Commission observes
that a greater level of knowledge and skill might be expected of the
voluntary rescuer. In particular, it may be noted that the ability of the
voluntary rescuer to assess the situation and to tailor his or her conduct
appropriately is more significant than in the case of the Good Samaritan.
Thus, the reasonable voluntary rescuer may be in a better position to foresee
the potential risks inherent in a situation or, indeed, in the particular
intervention proposed. Furthermore, it may be expected that the expertise of
the voluntary rescuer will encompass an ability to determine and employ the
appropriate precautions to avoid such
risks. As a result, it may be asserted that there a voluntary rescuer intervenes
there is less chance that the situation will be inadvertently exacerbated or
that any existing injury will be aggravated. 3.52
Foreseeability, the Commission notes, may also
depend on the type of intervention undertaken and the level of skill
possessed by the defendant with |
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65 |
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regard
to that type of intervention. The Commission appreciates that although a
voluntary rescuer may be trained to undertake a variety of interventions,
some interventions may go beyond his or her skill. Where the voluntary
rescuer undertakes to do something for which he or she is not adequately
qualified, it might be asserted that he or she should foresee that there is a
greater chance of harm. However, like the Good Samaritan, the Commission
accepts that there are particular situations where the voluntary rescuer may
feel that he or she has no choice but to intervene, particularly where there
is a threat to life. 3.53
The Commission
notes that similar inferences,
regarding foreseeability, may be made on the basis of the relationship
arising in the situation involving the voluntary rescuer as were made on the
basis of the relationship arising in the situation involving the Good
Samaritan. Where the relationship is one of undertaking and reliance, for
instance, harm may be a more foreseeable consequence where the reliance is
detrimental. Where the relationship is one of control and dependence, on the
other hand, a greater risk may exist that the situation or any existing
injuries will be aggravated. Thus, in such circumstances, harm may be a more
foreseeable result. 3.54
The Commission considers that it is only at the
“just and reasonable” stage of the analysis that the question arises as to
whether a duty of care should be imposed on the voluntary rescuer.
Policy factors that could be taken into account include the fact that
voluntary rescuers and their organisations undertake a multitude of
activities for the benefit of society. In this regard, it should be noted
that voluntary rescuers not only complement and supplement the services
provided by statutory bodies they also undertake the hugely important task of
saving lives. Furthermore, by providing a presence to guard against accidents
and emergencies, voluntary rescuers and their organisations make possible the
holding of large-scale events such as concerts and festivals, which are themselves for the benefit of society. In a more general,
but no less significant, way voluntary rescue organisations benefit society
by providing a forum for members of the public to interact and to develop
skills. Given the various ways in which voluntary rescuers and their
organisations benefit society, therefore, the Commission considers that the
only just and reasonable conclusion to draw, in many situations, would be
that a duty of care should not be imposed. 3.55
The Commission is also concerned that the
imposition of a duty of care on voluntary rescuers may have a particularly
harmful effect on their activities. A rescue, by definition,
involves some element of danger and, therefore, a risk of liability. The
voluntary rescuer who intervenes on a regular basis may, as a result, be more
exposed to this risk of liability than the Good Samaritan who intervenes on a
one-off basis. The imposition of a duty of care on the voluntary rescuer may,
therefore, deter individuals from becoming involved
in the activities of voluntary rescue organisations. Furthermore, the |
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66 |
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Commission
observes that a finding of liability may also create a precedent for future
claims against voluntary rescuers who, by virtue of their activities, would
be relatively easy targets. Although members of voluntary rescue
organisations may have a number of protections available to them in the form
of insurance cover, training and vicarious liability, the cost of litigation
and loaded insurance premiums may place an inordinate financial burden on
their organisations. This burden may prove to be of critical proportions for
those organisations which depend, for their survival, on charitable
donations. The potentially devastating effects that this would entail for
voluntary rescues might include forcing the voluntary rescue organisation to
reduce the number of members it engages or level of activities it undertakes
or, at worst, withdraw completely from the field. 3.56
The Commission notes that while the activities of
voluntary rescuers should be encouraged there is also the argument that
because the service provided is rescue leniency in respect of the duty of
care may not be appropriate. The Commission points out that, if this is the
case, voluntary rescuers and their organisations will most likely be covered
by insurance, which as already noted has become more readily available for
voluntary bodies in Ireland in recent years.44 Therefore, the
Commission appreciates that, while there are very persuasive policy
considerations against imposing a duty of care on voluntary rescuers, such
persons do advertise their willingness and ability to assist in emergency
situations. Thus, it may be argued that the voluntary rescuer, to some
extent, assumes responsibility for rescuing and, therefore, assumes a duty of
care. (2)
Standard of Care 3.57
As the Commission pointed out in the Consultation
Paper,45 there is some uncertainty
regarding the standard of care to be applied to the voluntary rescuer. One
argument is that the standard should be set according to the individual‟s
status as a voluntary rescuer. This, however, does not recognise the
particular skills of certain volunteers, such as those who may be
professional rescuers or medical professionals. The standard could instead be
set according to the particular voluntary rescuer‟s level of knowledge
or skill. As pointed out in the case of the Good Samaritan, this may result
in the creation of many different standards of care. Bearing in mind the
level of training that the voluntary rescuer has undertaken, however, the
Commission notes that a higher standard of care might be expected of the
voluntary rescuer than the average Good Samaritan. Thus, the appropriate
standard might relate to the standard applicable to the reasonable rescuer in
the circumstances, taking into account the general and approved practice of
the particular voluntary group. |
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44
See paragraphs 1.10 and 1.29, above. 45
LRC CP 47-2007 at paragraph 3.98. |
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67 |
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However,
where the particular voluntary rescuer has further professional
qualifications or training, the question could arise as to whether the
appropriate standard should refer to the practice of the voluntary group or
that of the particular profession.46 In either event, the
Commission notes that the determination of the appropriate standard of care
requires an examination of four elements: the probability of harm, the
gravity of the threatened injury, the cost of eliminating the risk and the
social benefit of the activity. 3.58
As to probability of harm, as with the Good
Samaritan the voluntary rescuer will generally intervene in situations where
there is an independently arising risk of harm or injury. The probability of
harm occurring may, thus, be high as any intervention may easily exacerbate
the prevailing conditions or aggravate any existing injuries. In determining
the most appropriate course of action, the voluntary rescuer may be required
to weigh up the risk independently arising against the risk posed by his or
her proposed intervention. Voluntary rescuers may be more inclined to
undertake more direct and physical interventions - either because they are
trained to do so or because it is the best available course of action - to
which a greater risk of harm, and sometimes serious harm, may be associated.
The Commission observes, however, that the voluntary rescuer is likely to
encounter some situations where injury is an inevitable consequence
irrespective of the course of action undertaken or the precautions taken. 3.59
The Commission notes, however, that the voluntary
rescuer who has benefitted from training may be in a particularly strong
position to deal with a rescue situation. In this regard, the voluntary
rescuer may be better able to assess the situation for existing and potential
dangers and to determine the most appropriate method of intervening. Thus,
the risk posed by his or her intervention is likely to be minimal.
Furthermore, the voluntary rescuer will usually have the benefit of
appropriate equipment and the support of his or her team. In any event, given
that the voluntary rescuer anticipates, to some extent, that a rescue
situation will arise, he or she will usually have had adequate time to
consider and prepare his or her response in advance. As this response may
have been tried and tested before, it is likely that it will be a more
polished response than any that could be offered by the average Good
Samaritan. 3.60
Regarding the gravity of the threatened injury,
the Commission notes that where the potential injury is great engaging in
conduct that entails even the slightest risk, or failing to take steps to
avert the risk, may constitute negligence. |
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46
For example, in the English case Condon v Basi [1985] 1 WLR 866 it was noted that there
is a different standard of care applicable to the amateur sporting participant
than to the professional. |
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68 |
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In
this regard, it is noted that the voluntary rescuer is not only likely to
intervene in a situation where there is an independent risk of minor harm but
also where there is an independent risk of serious harm. Any intervention
could, therefore, result in the risk of such harm eventuating. As was noted
above, the voluntary rescuer is more likely to engage in a direct and
physical intervention, which carries more risk, than a more remote
intervention. As against this, however, it must be noted that the voluntary
rescuer has a greater capacity than the average Good Samaritan to improve the
individual‟s predicament. Furthermore, while the voluntary rescuer
might not be able to diagnose the exact nature or severity of any existing or
potential injury, it is likely that he or she has been drilled to proceed
cautiously where there is a real risk of serious harm. In this regard, the
Commission observes that the voluntary rescuer‟s training and
experience is likely to have prepared him or her to deal situations where it
is necessary to either abate the risk or secure the scene until third party
assistance arrives. 3.61
With reference to the cost of eliminating the risk, the Commission observes that courts have taken into account
that it is impossible to make some work activities risk-free. In this
regard, the Commission notes that voluntary rescue is an inherently dangerous
and risk-laden activity. There are, however, certain steps which voluntary rescue organisations might be expected
to take to reduce the risks. For example, voluntary rescue
organisations may provide training and refresher courses to ensure that their
members develop skills, which are then
kept up to date. They may also implement procedures to ensure that
appropriate candidates are selected for membership. Importantly, voluntary
rescue organisations should ensure that voluntary rescuers have adequate
equipment and support at their disposal. Insofar as the rescue situation
itself is concerned, it has already been noted that some interventions will
naturally involve more risk than others. While it is preferable that a course
of conduct entailing the least amount of risk is undertaken, this may not be
possible in all situations, especially where time is of the essence. Where
the risk of litigation is at issue, the Commission notes that voluntary
organisations may purchase insurance, and
indeed this has been made increasingly available in Ireland.47 3.62
The final element of the standard of care
analysis relates to social utility. The Commission notes that the social
utility of the voluntary rescuer‟s activities, particularly in the
context of saving lives and preventing injury, must be taken into account
when determining whether he or she has fallen below the reasonable standard.
McMahon and Binchy note, however, that professional persons responding to
emergency situations do not benefit from a blanket |
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47
See paragraphs 1.19 and 1.30, above. |
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69 |
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immunity.48
Regarding fire fighters, they note that while it is well established that the
court should take into account the social utility of rescue when assessing
the question of negligence of emergency vehicles, it has been held that fire
fighters must still exercise due care. In the English Court of Appeal
decision Daborn v Bath Tramways Motor Co Ltd,49 which
concerned the standard of care to be exercised by ambulance drivers during
World War II (1939-1945) in England, Asquith LJ stated: “the standard of reasonable care is that which is
reasonably to be demanded in the circumstances. A relevant circumstance to
take into account may be the importance of the end to be served by behaving
in this way or in that… The purpose to be served, if sufficiently important,
justifies the assumption of abnormal risk… In considering whether reasonable
care has been observed, one must balance the risk against the consequences of
not assuming that risk. 3.63
The English Court of Appeal held in that case
that the driver of a left-hand drive ambulance was not negligent when she did
not give the signals that would otherwise have been required. The Court
concluded that to impose such an obligation on the driver would have been to
demand “too high and an unreasonable standard of care”, when the efficient
use of all such vehicles was necessary during war time. 3.64
By contrast, in the English case Watt v
Hertfordshire County Council50 Denning LJ stated that: “fire engines, ambulances and doctors‟ cars should
not shoot past the traffic lights when they show a red light. That is because
the risk is too great to warrant the incurring of the danger. It is always a
question of balancing the risk against the end.” 3.65
The social utility of the voluntary rescuer‟s
activity goes beyond the specific rescue situation. The voluntary rescuer
provides a service for the benefit of society, by complimenting and providing
additional services to those offered by statutory bodies. Without the
voluntary rescuer, then, there would either be an insufficient service or no
service at all. Furthermore, the service is provided against the background
of adequate instruction, training and experience. Thus, it may be asserted
that there is less risk associated with an intervention by a voluntary
rescuer. So, because of the voluntary activity of the |
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48
McMahon and Binchy, Law of Torts (3rd
edition Butterworths 2000) at paragraphs 15.53 and 26.36. 49
[1946] 2 All ER 333. |
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70 |
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rescuer,
a quality service is provided to the public at large. Furthermore, it is of
consequence that the knowledge which voluntary rescuers gather may be passed
on and used by other members of society, with the result that more people are
capable of assisting in similar situations. 3.66
The Commission notes, therefore, that, as was the
case with the Good Samaritan, numerous standards may be set depending on the
various levels of skill and knowledge
possessed by each voluntary rescuer. The Commission
considers it preferable that there be one standard that will appreciate the
various levels of skill and knowledge possessed by all voluntary rescuers
while at the same time acknowledge that voluntary rescuers undertake
activities which are for the benefit of society. The parameters of this are
discussed in Chapter 4. E
Voluntary Service Provider (1)
Duty of Care 3.67
The Commission noted in the Consultation Paper51
that certain activities, whether undertaken by a voluntary service provider
or otherwise, may be regulated by statute and that, therefore, statutory
duties of care may arise in this context. For example, a voluntary service
provider who organises an event may be subject to obligations under the Fire
Services Act 1981, the Occupiers’ Liability Act 1995, the Planning
and Development Act 2000 (licensing of outdoor events) or the Licensing
of Indoor Events Act 2003. 3.68
In addition, the Commission is aware that while
many voluntary service providers may appear, at first glance, to fall outside
the scope of the Safety, Health and Welfare at Work Act 2005 virtually
all national voluntary service providers and charitable entities actually
come within its terms because they have engaged at least one salaried
employee, thus coming within the terms of the 2005 Act as employers.52 3.69
In addition, in the case of voluntary service
providers, the Commission notes that duties may also arise by virtue of the
relationship which exists between the service provider and the recipient of
the service. Thus, irrespective of whether the voluntary service provider is
an individual or an organisation, the general principles of negligence
regarding whether a duty of care exists are also relevant. |
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51
LRC CP 47-2007
at paragraph 3.102. 52
See paragraphs 2.50ff above. |
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71 |
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(a)
Proximity 3.70
The Commission notes that there may be a wide
range of grounds for establishing a proximate relationship insofar as
voluntary service providers are concerned. In respect of formal volunteers
the Commission observes that proximity may be established on the basis of a
direct relationship of proximity with the recipient of the service or an
indirect relationship of proximity derived from the relationship between the
formal volunteer and the voluntary organisation and the relationship between
the voluntary organisation and the recipient of the service. 3.71
The Commission identifies the three most common
types of scenario in which a relationship of proximity arises. First, a
relationship of proximity might arise where there is a special relationship
between the voluntary service provider and the recipient of the service,53 for instance, where the service provider
is, in some way, responsible for the well-being of the recipient. In
addition, a special relationship might arise where the defendant exercises
some element of control over the actions of a third party. For example, a
youth group might be required to exercise some element of control over the
actions of its members. 3.72
Second, the voluntary service provider may be
connected in some way to the source of the damage. This may be the situation
where the service provider some element of control over the source of the
danger54 or where the voluntary service provider creates a risk
which it fails to control, even where the voluntary service provider was
legally entitled to create the risk. Proximity may also be established where
the risk arises independently and the voluntary service provider either
aggravates the risk or increases the likelihood of harm.55 3.73
Third, the Commission observes that proximity may
arise out of a situation where the voluntary service provider has voluntarily
assumed responsibility. Again, an assertion of voluntary assumption of
responsibility may be made on the basis of relationship of undertaking and
reliance or a relationship of control and dependence. |
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53
See the discussion of proximity in Chapter 2,
above. 54
For example, where a voluntary service provider
organises a fundraiser, the voluntary service provider may at the least be
subject to the duties in the Occupiers’ Liability Act 1995 or
licensing obligations under legislation such as the Planning and Development
Act 2000 or the Licensing of Indoor Events Act 2003. 55
An example might be where a voluntary service
provider aggravates risks by failing to provide adequate equipment necessary
for certain activities or where the voluntary service provider proceeds with
an event despite warning such as adverse weather conditions. |
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3.74
Where the undertaking is a promise, the promise
may be either an by express promise to the recipient
of the service or an implied promise inferred from the voluntary service
provider‟s conduct. The Commission also observes that where the
voluntary service provider is a formal volunteer a promise may be made
directly to a voluntary organisation or be inferred from conduct in favour of
the voluntary organisation. In this regard, the act of registering with the
voluntary organisation might be considered an express promise to carry out
the organisation‟s work while from this act it might also be that the
formal volunteer intends to help those people whom the organisation itself
undertakes to help.56 Where the service provider is a voluntary
organisation, the Commission notes that an express promise may be made to the
community at large or be inferred from the organisation‟s general
activities.57 (b)
Distinction between Good Samaritans and Volunteers 3.75
A distinction is to be made with the situation of
the Good Samaritan. Given the vast range of activities undertaken by
voluntary service providers, it is just as likely that the promise will be a
promise to achieve a particular outcome as it is to be a promise to
endeavour. While it is more difficult to identify the point at which the
volunteer service provider has fulfilled its promise where the promise is one
of endeavour rather than outcome, the Commission reiterates that simple
promises are not generally enforceable. Were it otherwise, too onerous a
burden would be placed on individual volunteers who have made promises to
endeavour which are likely to be open-ended engagements that are not
time-limited. In this regard, the Commission notes that there may be
situations in which the personal commitments or the well-being of the
individual may prevent him or her from continuing to provide the services.
Given that the provision of services will rarely relate to life-or death
situations, it would seem fair to assert that it should be possible for those
personal commitments or issues related to well-being to trump the provision
of services. The Commission notes that it might be easier for the voluntary
service provider that is an organisation to provide a service on an
indefinite basis as the voluntary organisation is less likely to be impeded
by those obstacles encountered by the individual volunteers. (c)
Voluntary Acts 3.76
An undertaking may also consist of a voluntary
act carried out by the voluntary service provider in favour of the recipient
of the service. The |
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56
This may be problematic in that it could be taken
to be a positive duty to provide services, which the Commission did not
recommend in Chapter 2. 57
However, enforcement of such a promise may come
close to a theory of general reliance on the part of the whole of society,
which is unlikely to be imposed. |
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73 |
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Commission
considers that a “voluntary act” is an act done, freely and without payment,
in favour of the recipient or an act done on behalf of the voluntary
organisation. Thus, both formal volunteers at ground level, such as those
providing the services, and formal volunteers at administrative level, such
as those on the board of directors or senior management committee, may be
included. In this regard, the Commission observes that certain voluntary acts
necessarily entail a greater degree of risk than others. For instance, the
more a service concerns the physical integrity of an individual, the more
likely it is that harm will occur. In contrast, the less a service concerns
the physical integrity of an individual, such as where a volunteer maintains
the accounts of the voluntary organisation, the less likely it is that harm
will occur. The identity of the group to whom the services are provided may
also be relevant. It is more likely that harm will occur where the service is
provided to a particularly vulnerable group than where it is provided to a
more robust group. 3.77
Furthermore, the nature of the voluntary act may
vary depending on the type of voluntary service provider that undertakes it.
The Commission notes that where the informal volunteer provides a service, it
is likely that he or she will personally undertake the act under his or her
own direction. Where the formal volunteer undertakes to provide a service, it
is more likely that he or she will personally undertake the service under the
direction of the voluntary organisation. Where the voluntary organisation
undertakes to provide a service, then, it will be its volunteers that
physically provide the service, but it will be the organisation that controls
and directs the provision. (d)
Reliance 3.78
As noted before, a voluntary act or intervention
alone is not sufficient to form a relationship of proximity. In addition,
there must be reasonable reliance of which the voluntary service provider is
aware.58 The Commission notes that where reliance is
non-detrimental, this suggests that the recipient of the voluntary service
has changed his or her position on faith of the volunteer‟s voluntary
provision of services, but is in no worse a position.59 Reliance
may, however, be of a detrimental nature. An example of detrimental reliance
may be where an elderly person, on faith of a volunteer‟s undertaking
to provide evening meals for him or her,
gets rid of his or her cooker. As a result, if the |
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58
LRC CP 42-2007 at paragraph 3.119. 59
For instance, the volunteer may prepare a hot meal
for an elderly neighbour every evening, over a period of time. While the
elderly neighbour may come to rely on the volunteer to do this, he or she may
choose to keep his or her cooker in case the need should ever arise to
prepare his or her own meal. In this way, the elderly neighbour is in no
worse a position than he or she was before the volunteer intervened. |
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74 |
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volunteer
fails to turn up, it is very likely that the elderly person would find it
difficult to make an alternative arrangement. 3.79
To establish a relationship of proximity it must
be shown that the reliance is reasonable. In this regard, the Commission
notes the argument that it might be asserted that reliance on a voluntary
promise can never be considered reasonable.60 In determining
whether reliance is reasonable, it is the case that many recipients of
voluntary services are particularly vulnerable and, therefore, more reliant
on the voluntary provision of services. The nature of the volunteer‟s
promise will also be important in this regard. It is more likely that
reliance will be considered more reasonable where the promise is either
inferred from or supported by conduct of the voluntary service provider,
particularly where that conduct is on a regular and recurrent basis.
Furthermore, given that a certain amount of training and support will be
provided by a voluntary organisation, it is possible that a recipient of
voluntary services will be more likely to rely on the undertaking of a formal
volunteer than on that of an informal volunteer.61 It should also
be noted that the recipient of a voluntary service may be more inclined to
rely on the undertaking of a formal volunteer because of an implicit
guarantee that should the individual volunteer fails the voluntary
organisation will make alternative arrangements to ensure that the service
continues to be provided. In such a case, it may be debatable as to whether
reliance on the individual volunteer, rather than the overall organisation,
would be reasonable. (e)
Control and Dependence 3.80
Proximity might also be established where the
relationship between the voluntary service provider and the recipient of the
service is one of control and dependence. In terms of control the voluntary
service provider may be especially well placed to provide a particular
service because of training or attachment to a voluntary organisation that
specialises in the provision of that service. Alternatively, the voluntary
service provider may assert control over a particular situation by taking
charge of a particular task or by organising an event. The voluntary service
provider would, in such a case, be expected to manage the operations in
accordance with the relevant legislation or licensing obligations under
legislation, such as the Planning and Development Act 2000 (licensing
of outdoor events) or the Licensing of Indoor Events Act 2003. The
Commission considers that relationships of control and dependence are most likely to arise where the voluntary service
provider is a voluntary organisation |
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60 The promise is made without consideration, a
prerequisite for a binding contract and enforcement would be highly
onerous. 61 Based on the level of training, standards set by
the voluntary organisation and access to equipment and resources. |
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75 |
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based
on the fact that it has the capacity, resources and authority to assert
control. Where the voluntary service provider is a formal volunteer, he or
she may have direct control over the particular task with which he or she is
charged while ultimate control is likely to rest with the voluntary
organisation.62 Relationships of control and dependence may also
arise where the voluntary service provider is an informal volunteer. 3.81
Regarding dependence, the recipient of the
voluntary service might be considered dependent where, for example, there are
no comparable alternatives to the voluntary service provider‟s
undertaking or where the recipient does
not have the capacity to choose an alternative. As
the Commission noted above, voluntary service providers tend to compliment
supplement necessary services provided by statutory bodies. Thus, it may be
the case that the voluntary organisation is the only entity providing the
particular service. In addition, some voluntary service providers cater specifically
for vulnerable people who may be more likely to depend on the assistance of
others. The Commission also notes that partial dependence may develop into
complete dependence over time. In this context, and as noted above, a
voluntary organisation may be better able to provide a constant service than
the average individual volunteer. The Commission notes that it may be
asserted that the voluntary service provider should be aware of the recipient‟s
dependence and, therefore, of the impact that the voluntary service provider‟s
undertaking may have. (f)
Foreseeability of Harm 3.82
Where a relationship of proximity is established,
it must be determined whether harm caused to the recipient by the voluntary
service provider was reasonably foreseeable. In this regard, it may be
relevant to consider the nature of the service being provided. Where the
service affects the physical integrity of the recipient, there is a higher
degree of inherent risk and injury, therefore, is a more foreseeable
consequence of the service provider‟s actions.63 The skill
of the voluntary service provider will also be an issue. A higher level of
skill might be expected of the formal volunteer than the informal volunteer
as the formal volunteer benefits from specialised training from the voluntary
organisation. Implicit in this would be the conclusion that harm is more
foreseeable where the voluntary service provider is an informal volunteer.
The Commission notes that such a conclusion would only be appropriate, however,
where the formal volunteer and the informal volunteer were providing |
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62
The Commission notes that some volunteer
organisations maintain an authoritative involvement while some limit
involvement to provision of resources such as training. 63
For example, by providing caring services or meals
to elderly persons. |
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76 |
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equivalent
services. Furthermore, there may be situations in which the informal
volunteer has benefited from a certain level of professional training that
goes beyond the knowledge and skill
possessed by the formal volunteer. The Commission
concludes, therefore, that regardless of whether the voluntary service
provider is an informal volunteer, a formal volunteer or a voluntary
organisation, harm is more foreseeable where the provider departs from its
area of competence. 3.83
The Commission also notes that where the
voluntary service provider is an
organisation it is foreseeable that some harm will arise.
As the organisation depends on the services of many individuals to
carry out its functions there is more room for human error and, consequently,
harm of some kind. Such a situation might necessitate the assessment of the
voluntary organisation‟s methods of selecting, training and directing
its volunteers to see whether those methods were sufficient to reduce or
eliminate the risk. (g)
Relationship between Service Provider and Recipient 3.84
The nature of the relationship between the
voluntary service provider and the recipient of the voluntary service is also
relevant to an analysis of foreseeability
of harm. For instance, where the relationship is
one of undertaking and non-detrimental reliance, there is clearly less risk
of harm as the recipient still retains some control over his or her own
well-being. Where the relationship is one of undertaking and detrimental
reliance, however, the voluntary service provider might be expected to
foresee a greater risk of harm, as the recipient is in a more vulnerable
position because of the voluntary service provider‟s undertaking. Where
the relationship is one of control and dependence, the voluntary service
provider ought to be aware of the potential impact of its intervention on the
recipient of the voluntary service. In this regard, the Commission notes that
the voluntary service provider should consider the danger of aggravating an
existing vulnerability and the fact that the recipient of the voluntary
service is not in the position to either ensure his or her own safety or to
seek assistance elsewhere. 3.85
The Commission considers that the argument of
“inevitable harm” is less persuasive in the case of the voluntary service
provider. While situations involving the Good Samaritan or the voluntary
rescuer might be more conducive to the assertion that some harm was inevitable
to ensure the success of the overall rescue, such circumstances are less
likely to arise in situations involving the voluntary service provider. In
this regard, the Commission underlines how difficult it would be to show that
any harm could be justified by the overall benefits
of the voluntary services provided. In the specific
context of the voluntary organisation, this argument might be translated into
the assertion that injury to one individual is justified by the success of
the organisation‟s overall goal. |
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77 |
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(h)
Is it “Just and Reasonable” to impose Liability? 3.86
When it has been established that there is a
sufficiently proximate relationship and that harm was foreseeable, the courts
will also consider whether it is “just and reasonable” to impose a duty of
care on a voluntary service provider. In this context, it might be argued
that the voluntary provision of services is for the benefit of society,
depending on the nature of the services being provided. Indeed, the
Commission observes that by supplementing the statutory provision of
services, voluntary service providers ensure that many more people may
benefit from additional services. Furthermore, not only does involvement in
voluntary activities provide a forum for volunteers to interact, develop
skills and work towards a common purpose but also encourages individual
volunteers to become more engaged members of society. In this regard, the
Commission notes the argument then that it may not be just and reasonable to
impose a duty of care to the extent that potential liability threatens such
activities. 3.87
In the context of identifying a party to bear the
cost of damages, the risk of harm must be weighed against the potential
benefit to society. The Commission notes that where a duty of care is
imposed, the voluntary organisation may be in a better position than the
individual volunteer to bear the cost of damages. By virtue of its resources,
structure and experience, it is likely that the organisation will have
anticipated the risk of damage and, therefore, implemented precautions to
guard against the risk and mechanisms to deal with the risk should it arise,
for example, insurance cover. Therefore, the voluntary organisation may be
better able to absorb the cost of damage without endangering its activities. 3.88
In respect of individual volunteers then, the
formal volunteer may be in a stronger position to bear the cost of damages
than the informal volunteer. This is so because the formal volunteer is
likely to be protected by the voluntary organisation‟s insurance cover
or the principle of vicarious liability. By contrast, the informal volunteer
may have no option but to resort to personal resources, which may not be
sufficient, to meet the cost of damages. The Commission considers that, given
the weight of such a burden, it might be asserted that it is not just and
reasonable to impose a duty of care on the informal volunteer. As against
this, however, the Commission notes that it may not be just and reasonable to
completely deny the recipient of the voluntary service the right to seek
redress. 3.89
The Commission notes, however, that the
imposition of a duty of care may have a severe impact on the provision of
voluntary services particularly those which entail a greater degree of
inherent risk. As was the case with Good Samaritans and volunteers, the
Commission considers that a finding of liability may not only deter individuals from volunteering but may also create
a |
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78 |
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precedent
for future claims against voluntary service providers. The cost of litigation
and insurance may impose too onerous a burden on voluntary service providers,
whether organisations or formal volunteers, and lead to a withdrawal of
services. Informal volunteers, who finance their activities themselves, can
only fare worse in such circumstances. (2)
Standard of Care 3.90
In addition to establishing that the voluntary
service provider owes the recipient of the service of care, it must also be
shown that the voluntary service provider did not provide the service to the
appropriate standard of care. There is some uncertainty, however, as to the
appropriate standard of care to be applied to the voluntary service provider.
In the Consultation Paper the Commission noted that the test has both
objective and subjective elements.64 From an objective
perspective, the test considers how the reasonable voluntary service provider
would act in similar circumstances. From a subjective perspective, it
considers the actual skill of the particular voluntary service provider to
determine the degree of care it was capable of exercising.65 The Commission
notes that it might be argued here that the formal volunteer, by virtue of
his or her training, should be held to a higher standard of care than the
informal volunteer and that the off-duty professional should be held to an
even higher standard again. As with the voluntary rescuer, however, such an
inference can only be drawn where the volunteers are providing equivalent
services and where the skills referred to are relevant to the particular
service being provided. (a)
Skill of Service Provider 3.91
The Commission considers that the voluntary service provider should, at
the least, be expected to exercise such care as would be exercised by the reasonable person in similar
circumstances. By undertaking to perform a particular function, the
voluntary service provider represents that it has the requisite level of
skill to do so. Therefore, where it has neither the skill nor reasonable
belief that it possesses that skill, the voluntary service provider may be considered negligent. Thus, the voluntary
service provider‟s conduct may be judged against that level of
skill required to perform the particular function, regardless of whether or
not the voluntary service provider is actually that skilled. The law,
however, must be realistic. Therefore, where the voluntary service provider claims, legitimately or not,
to be a specialist in a particular field, |
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64
LRC CP 47-2007 at paragraph 3.141. 65
See the English case Condon v Basi [1985] 1 WLR 866, contrasting the standard
of care to be expected from an amateur sports player with that of a
professional player. |
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79 |
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the
law will expect no more of the voluntary service provider than the ordinary
level of skill possessed by those who specialise in that field. The voluntary
service provider will not be expected to have a higher degree of skill or
competence. 3.92
The Commission notes that regard may also be had
to the “general and approved practice” of the particular field. This is so
irrespective of whether the service is being provided by a lay volunteer or a
professional volunteer.66 The Commission notes, however, that what
is general and approved in the voluntary sector may not necessarily align
with what is general and approved in the professional sector. (b)
Probability of Harm 3.93
As was the case with Good Samaritans and
voluntary rescuers, it is now necessary to consider four elements of the
standard of care analysis, namely, the probability of harm, gravity of
threatened injury, cost of preventing the risk and social utility. Regarding
the probability of harm, voluntary service providers undertake to provide a
wide variety of services, each carrying a different potential for injury. As
noted above, harm will be more likely where the particular services touch
upon the physical integrity of the recipient or are provided to particularly vulnerable
individuals. This is so because it is in these types of situation that there
is a certain element of inherent risk or sensitivity which the voluntary
service provider might easily exacerbate or aggravate. 3.94
The skill of the voluntary service provider is
another significant consideration in
determining the probability of harm. The
Commission considers that harm may be a more likely consequence where the
voluntary service provider is insufficient skilled or departs from the
guidance or instruction it has received. Voluntary organisations, for
instance, may be guided by legislation, principles or best practice that have
been developed in their field of expertise and passed on to their members,
the formal volunteers.67 Therefore, voluntary organisations and
formal volunteers may be in a particularly strong position to assess the
risks inherent in a service and to identify and put in place the most
appropriate precautions. The Commission notes that such voluntary service
providers may also have had the opportunity to make preparations and
implement precautions in advance of the provision of the service 3.95
The informal volunteer‟s capacity to assess
the situation, on the other hand, will
depend very much on the volunteer‟s personal experience. This |
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66
O’Donovan v
Cork County Council [1967] IR
173; Dunne v National Maternity Hospital [1989] IR 91; Roche
v Peilow [1986] ILRM 189. 67
Volunteering Ireland provides helpful guidance in
this regard: see the discussion in Chapter 1 and at its website, www.volunteering.ie. |
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would
seem to imply that the standard of care to be applied to the informal
volunteer is more akin to that applicable to the reasonable person. It must
also be recognised, however, that any individual volunteer, formal or
informal, may also have relevant professional skills that put him or her in a
particularly strong position. The Commission observes that a question then
arises as to whether this additional knowledge should be held against the
volunteer, in that he or she, in particular should have known that there was
a risk and the most appropriate precaution to put in place, whether or not
this was covered in the training provided by the voluntary organisation. 3.96
The Commission notes that where the voluntary
service provider is an organisation, there is, in general, a greater
probability of some harm arising. This may occur because the organisation is
managing a particular activity, directing a number of volunteers and
overseeing a number of recipients. (c)
Gravity of Injury 3.97
Regarding the gravity of the injury, the
Commission observes that the potential for serious harm may not be as high in
situations involving the voluntary service provider as in situations
involving the Good Samaritan or voluntary rescuer. While some interventions,
depending on how dangerous the activity or vulnerable the recipient, may
entail a high risk of serious harm, not all will be quite so precarious. The
Commission notes that voluntary organisations and formal volunteers, by
virtue of their skill and organisation, may be in a particularly strong
position to assess the likelihood of serious harm and to identify the
appropriate means to avoid such harm or treat it should it arise. The
Commission reiterates, however, that this does not exclude the possibility
that the individual volunteer, whether formal or informal, may have relevant professional skills to contribute.
It is, therefore, difficult to make a clear distinction for all
circumstances. (d)
Cost of Preventing Risk 3.98
In terms of the cost of preventing the risk, the
Commission notes that a number of measures may be taken to eliminate, or at
least reduce, the risks associated with
the voluntary provision of services. First,
voluntary organisations should ensure that those engaged as volunteers are
appropriate candidates.68 Second, voluntary organisations should
ensure that their volunteers are adequately skilled to provide the particular
service by providing training and courses in relevant areas. Formal volunteers
do their part by committing to the courses
provided by the voluntary organisation. Third, |
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68
For example, through the Garda vetting process.
See the Commission‟s Report on
Spent Convictions (LRC
84-2007), Chapter 4. Youth Work Ireland carries out checks in this way on
volunteer youth leaders. |
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81 |
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voluntary
organisations should ensure that their volunteers are adequately equipped and supported.
Fourth, voluntary organisations may
take out insurance
cover or require their volunteers to take out individual policies. Finally,
certain voluntary organisations require the recipients of their services to
sign waiver forms to acknowledge that they assume the risk of anything
adverse happening. The
Commission notes that these measures place a financial burden
on voluntary organisations and their members, which may put the continued
provision of services at risk. Furthermore, the Commission notes that, in
many cases, it may not be possible for informal volunteers to implement
equivalent measures. (e)
Social Utility 3.99
The extent to which the service is of social
utility is the final consideration. Where the voluntary service provider
undertakes to provide services for the benefit of society, its activities may
be regarded as having a high social utility. They may be of benefit to the
recipients of those services as well as
being of benefit to the individual provider of the services.
The Commission notes that participation in voluntary
organisations may also provide an opportunity for individual volunteers to
exchange ideas and develop skills. The Commission considers, however, that
while the social utility of an activity should be taken into account when
determining liability, volunteers should not be protected to such an extent
that the recipients of the service are placed in an even more vulnerable
position by excluding all possibility of compensation. 3.100
As in the case of the Good Samaritan and the voluntary
rescuer, the Commission identifies the ideal situation as being one in which
there is a single standard that takes into account the various levels of
skills and expertise associated with the provision of voluntary services,
while appreciating the fact that voluntary service providers
work for the public good. The Commission observes, however, that it may not
be appropriate to treat individual volunteers, whether formal or informal, in
the same way as voluntary organisations. The Commission will look more closely
at these issues in the final chapter. F
Conclusions 3.101
The Commission concludes that the general principles of
negligence, which apply to the determination of the duty of care and standard
of care, do not preclude Good Samaritans, voluntary rescuers, individual
voluntary service providers or voluntary service organisations from liability
in negligence. A memorandum prepared in 2003 by experienced counsel for the
Pre-Hospital Emergency Care Council (PHECC), the State body with responsibility
for standards in pre-hospital emergency
medical services,69 expressed the view |
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69
See paragraph 1.14, above. |
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82 |
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that
it was unlikely that liability would be imposed in practice. Indeed, the
Commission is not aware of any litigation taken against a Good Samaritan or
volunteer in this State, and it concurs with the general view expressed in
that memorandum, in particular having regard to the social utility of the
conduct involved, which would form an important element of the application of
the “just and reasonable” element of the negligence principles currently
applicable in Ireland. 3.102
The Commission underlines that, although there is a
measurable risk of injury being caused, in practice, cases of botched
attempts70 are extremely rare. It is more likely that the outcome
of an intervention by a Good Samaritan or rescuer is that a life is saved. In
a real emergency, the Good Samaritan‟s intervention, with the aid of,
for example, an automated external defibrillator (AED) means that a person
who is otherwise going to die is likely to live. The Commission has been made
aware of a number of instances where the use of AEDs has clearly saved lives,
including through the interventions of occupational first aid teams in large
public facilities such as the State‟s airports. 3.103
The Commission considers, for example, that where CPR or
AEDs are used to resuscitate a victim of sudden cardiac arrest, the classic
fear of liability arising from breaking the rescued person‟s ribs is,
in fact, unlikely. Indeed, this may be so unusual that it will be
characterised as an unavoidable consequence of the attempt to save life and
that it would, therefore, be unlikely that the Good Samaritan would be held
liable. In any event, the rescued person is alive after the intervention –
perhaps with broken ribs, but they are likely to heal after a short time – whereas
the alternative is that the person is left to die because CPR or AEDs were
not made available. While the interventions in Ireland of which the
Commission has been made aware have, to date, universally led to profound
thanks from those who have been resuscitated and who form an increasing list
of “saves,” the Commission must also be conscious that the potential for at
least a claim of liability in the event of adverse outcomes remains, even if
this is remote. 3.104
Drawing from the submissions made to the Commission
after the publication of the Consultation Paper, the Commission observes
that, for many doctors and other health care professionals, stopping at
accidents and emergencies provokes some uncertainty as to responsibility and
legal liability. The Commission considers that it would be of clear benefit
for such persons, as |
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70
Report of
the Inter-Agency Review Working Group on Major Emergency Management (supported
by the Department of Environment, Heritage and Local Government Review
Project Team 12 September 2006). The Commission discussed in the Consultation
Paper at 3.157 other reasons why there might not a large amount of Good
Samaritan claims. |
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83 |
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well
as general members of the public, to understand their legal position in this
regard. The dilemma of
whether to stop and render assistance in an emergency
is a concern for many people, not alone health care professionals. Given the
possibility of liability should the rescue go awry (even if this is, in
reality, unlikely), the Commission accepts that a potential rescuer might
very well reconsider his or her initial impulse to intervene. 3.105
Furthermore, taking into account the policy setting and
background described in Chapter 1, it is important for persons involved in
the provision of services and volunteering activities, whether they be rescuers
or otherwise, to appreciate the standard of care that might be applicable to
them as they go about their activities.
It is clear from the submissions received by the Commission
during the consultation period after the publication of the Consultation
Paper that this is a significant area of concern for volunteer organisations
and their members. 3.106
The Commission has, therefore, come to the conclusion
that the enactment of legislation in this area would be beneficial in that it
would establish clearly the nature and scope of the duty of care and the
precautions a person must take to meet the standard of care required by the
law as it stands. The Commission considers that people who come to the aid of
others or who voluntarily give their time to assist community organisations
should be able to do so with a clear knowledge of the precise scope of any
legal liability. The Commsision therefore recommends that the legal duty of
care of Good Samaritans, voluntary rescuers and voluntary service providers,
should be set out in legislation. The Commission also recommends that the
legislation should take account of the high social utility of Good Samaritan
acts and volunteering activities, particularly in light of the increased
awareness of sudden cardiac death and the use of Automated External
Defibrillators (AEDs). 3.107
The Commission recommends that the legal duty of care
of Good Samaritans, voluntary rescuers and voluntary service providers should
be set out in legislation. The Commission also recommends that the
legislation should take account of the high social utility of Good Samaritan
acts and volunteering activities, particularly in light of the increased
awareness of sudden cardiac death and the use of Automated External
Defibrillators (AEDs). |
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84 |
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CHAPTER 4
THE CONTENTS OF THE GOOD SAMARITAN AND VOLUNTEERS LEGISLATION |
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A
Introduction 4.01
In Chapter 3, the Commission recommended that
legislation should be enacted to set out the duty of care and standard of
care applicable to Good Samaritans,
volunteers and voluntary organisations. In this
Chapter, the Commission discusses the details of the proposed legislation. 4.02
In Part B, the Commission examines other
protections which are already available to Good Samaritans and volunteers,
notably insurance cover and incorporation. In Part C, the Commission examines
the background to the development of Good Samaritan and volunteer legislation
in other States as well as their detailed content, with a view to considering
what form would be appropriate in Ireland. Based on this comparative
analysis, in Part D, the Commission sets out the detailed elements of the
legislation it recommends concerning the civil liability of Good Samaritans
and volunteers. B
Forms of Protection Already Available 4.03
The Commission notes that some measures currently
exist for the protection of Good Samaritans and volunteers. These include
insurance cover and the protections which flow from incorporation.1 (1)
Insurance Cover 4.04
Section 56(1) of the Road Traffic Act 1961 provides
that third party insurance cover is mandatory. In Ireland, therefore, it is
legally necessary to have at least third-party insurance which will cover any
injury or loss suffered by persons other than the driver as a result of
negligent driving of a vehicle. The Commission notes that there may be many
situations in which driving forms the basis of a Good Samaritan intervention
or voluntary activity. In this regard, the Good Samaritan or voluntary
rescuer may cause an injury to a third party or a person in their care as a
result of negligent driving in the context of conducting a rescue or
providing assistance to an ill or injured person and similarly, volunteers may cause injury to recipients of
services in the context of |
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1
LRC CP 47-2007 at paragraphs 4.33-4.45. |
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85 |
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volunteering
activities. Thus, a Good Samaritan or volunteer may be covered in such
situations by the 1961 Act. 4.05
Unlike motor insurance, there is no compulsory
requirement in respect of the insurance of public liability risks. As Buckley
notes,2 individuals and commercial
concerns may, therefore, decide whether or not to insure against liability to
members of the public in respect of injury or damage to property caused by
their negligence. Where they choose to do so, he notes that the general
public liability policy insures against the risk of legal liability to pay
compensation for accidental personal injury, or physical damage to material
property.3 It should be noted, in this regard, that the indemnity
provided by a general public liability policy relates only to legal liability
arising from an accidental event or occurrence resulting in personal injury,
illness, disease, loss of or damage to property of third parties.4 4.06
Buckley notes the difficulty encountered by the
courts in defining the term “accidental.”5 While much will
ultimately depend on the wording of the particular policy, Buckley asserts
that the rationale for using the word is to ensure that only unexpected and
unintended events, as opposed to deliberate acts or omissions, are covered by
the policy. In the course of determining the intention of one particular
public liability policy the Supreme Court, in Rohan Construction Ltd v
Insurance Corporation of Ireland Ltd,6 accepted the statement
of Lord Lindley in Fenton v Thorley & Co Ltd.7 that: “The word
„accident‟ is not a technical legal term with a clearly defined
meaning. Speaking generally, but with reference to legal liabilities, an
accident means an unintended and unexpected occurrence which produces hurt or
loss. But it is often used to denote any unintended and unexpected loss or
hurt apart from its cause; and if the cause is not known the loss or hurt
itself would certainly be called an accident. The word „accident‟ is
also often used to denote both the cause and the effect, no attempt being
made to discriminate between them. The great majority of what are called
accidents is occasioned by carelessness; but for legal purposes it is |
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2
Buckley, Insurance Law, 2nd ed
(Thomson Roundhall 2006) at paragraph 10.01. 3
Ibid at paragraph 10.02. 4
Ibid at paragraph 10.02. 5
Ibid at paragraphs 10.02-10.08. 6
[1986] ILRM 373. 7
[1903] AC 443 at 448. |
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86 |
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often
important to distinguish carelessness from other unintended and unexpected
events.” The
Commission notes, therefore, that while the term “accidental” may include
negligent acts, it is not synonymous with the term “negligent”. 4.07
While the terms of various insurance policies may
vary, Buckley notes that a general public liability insurance policy provides
that the insurer will, subject to the terms, exceptions, limits and
conditions of the policy, indemnify the insured against all sums which the
insured becomes legally liable to pay as damages in respect of (a) accidental
bodily injury to or illness of any person and (b) accidental loss or damage
to property, occurring within the territorial limits during the period of
insurance and happening in connection with the business.8 (a)
Volunteer-Specific Insurance 4.08
The National Irish Community and Voluntary Fora
(NICVF) has established in recent years the NICVF
Group Insurance scheme for all members of Local Community and Voluntary Fora.
The Commission notes that membership of a Local Forum is open to any
community and voluntary group engaged in voluntary activity and that over
22,000 groups are now involved in the scheme. In its 2007 Report, the Taskforce
on Active Citizenship9 welcomed the work done by the NICVF in
developing a group insurance scheme and recommended that it be promoted
widely amongst relevant groups and organisations. It also noted that
experience of the insurance scheme to date shows insurance being obtained
with minimum administration and considerably cheaper premium costs. In this
regard, it may be noted that the premiums of community and voluntary groups
are reduced based on power buying and bulk purchasing. 4.09
The Commission observes that the scheme provides
cover in a number of areas including the two following: •
Public Liability Insurance: Public
liability insurance covers the voluntary organisation against potential legal
liability to pay compensation to members of the public who suffer injury or
illness as a result of negligence and the legal costs involved in defending
such a claim. The current policy allows for the various activities in which
the organisation may be involved including fund-raising activities and social
events. Areas automatically covered by the NICVF policy include the emergency
first-aid administration of drugs and motor contingency to |
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8
Buckley, Insurance Law, 2nd ed
(Thomson Roundhall 2006) at paragraph 10.02. 9
Report of
the Taskforce on Active Citizenship (2007) at 18. On the work of the Taskforce and the
implementation of the 2007 Report, see Chapter 1, above. |
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87 |
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indemnify
the organisation in the event of a failure of employees‟ or volunteers‟
motor policies to operate when they are using their vehicles in connection
with the organisations‟ business. •
Directors’ and Officers’ Liability Insurance:
The NICVF policy provides cover for claims brought against Directors and
Officers, which allege a wrongful act in their capacity as a Director or
Officer of the company, including legal representation costs at a formal
investigation and compensation for court attendance. (2)
Incorporation 4.10
Another option which may be availed of by
volunteers, whether they are classified as voluntary rescuers or voluntary
service providers, but not Good Samaritans, is incorporation. The Commission
notes that, as a corporation, or body corporate, a group of individuals
coming together for a common purpose, in this case, the voluntary provision
of assistance or services, is regarded in law as having a separate legal
personality from its members and directors. In other words it is an
artificial legal person. This process occurs by registration of the group
with the Companies Registration Office („CRO‟) by the Registrar of
Companies,10 who issues a certificate of
incorporation to the group under the Companies Acts 1963 to 2006. 4.11
The Commission notes that incorporation carries with it a number of
significant consequences. In the case of volunteer organisations and
charities, the most important of these relates to the separate legal personality
of the company. Following incorporation, a corporation normally speaking has
full legal capacity to sue or be sued in its own name: “A
corporation is a distinct legal person, separate from its members. This
commonplace of corporation law runs as a vital thread through all the
branches of the subject. A legal person is capable of being the subject of
legal rights and the object of legal duties.”11 Since the
company is a separate and distinct legal person, and is not as such the agent
of its shareholders, only the company (and not its members) can be sued in
respect of any duties or obligations that arise under law. Generally
speaking, therefore, liability arising out of the acts or decisions of the
company, which would ordinarily attach to the individuals who undertook those
acts or |
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10 See generally Courtney The Law of Private
Companies 2nd ed (Lexis Nexis Butterworths 2002). 11
Ussher, Company Law in Ireland (1986),
p.16. |
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88 |
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made
those decisions, transfers to the company itself. Consequently, the company
is usually vicarious liability for the acts of its servants.12 4.12
The Commission notes that the measures outlined
here do not cover all situations. While they may be relevant to volunteers
who either attach themselves to a group or arrange themselves in a group,
they are not applicable to Good Samaritans who, due to the ad hoc nature of
their interventions, do not lend themselves to such organisation. The
Commission reiterates that, in any case, there is no legislation specifically
aimed at reducing the exposure of either Good Samaritans or volunteers to
legal liability. For the most part, the Good Samaritan‟s or volunteer‟s
position is that of an ordinary citizen. This is so even though the
volunteer, usually where he or she is a formal volunteer, may on occasion
benefit from insurance cover or the provisions of vicarious liability. C
Overview of Good Samaritan and Volunteer
Legislation in other States (1)
Introduction 4.13
The original purpose of Good Samaritan statutes
was to force people to intervene in the event of an accident or emergency and
first appeared in civil law States where criminal law provisions regulated
the conduct of individuals in such situations. Rudzinski notes that by the
end of the 1950s, 13 European countries13 had provisions in their
criminal codes stipulating a duty to rescue.14 The Commission
notes that the purpose behind most Good Samaritan statutes has since changed.
Instead of forcing individuals to intervene on pain of penal sanction, the
tendency is now for Good Samaritan statutes to encourage intervention by
granting immunity from civil liability.15 While some statutes
focus on encouraging health care practitioners to intervene when not on duty,16
other |
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12
See generally McMahon and Binchy, Law of Torts 3rd
ed (Butterworths, 2000), chapter 43. 13
Portugal 1867; the Netherlands 1881; Italy 1889
and 1930; Norway 1902; Russia 1903-17, Turkey 1926; Denmark 1930; Poland
1932; Germany 1935, Romania 1938; France 1941 and 1945, Hungary 1948 and
1961, Czechoslovakia (as it then was) 1950. Belgium introduced such
legislation in 1961. 14
Rudzinski “The Duty to Rescue: A Comparative
Analysis” in Ratcliffe (ed) The Good Samaritan and the Law (Chicago:
Anchor Books, 1966) at pp. 91-124. 15
Veilleux, Annotation, Construction and Application
of "Good Samaritan" Statutes, 68 A.L.R. 4th 294, 299-300 (1989). 16
E.g., Fla. Stat. Ann. 768.13(2)(c)(3).
See also Veilleux Annotation, Construction and Application of "Good
Samaritan" Statutes, 68 A.L.R. 4th 294. |
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89 |
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statutes
go so far as to extend protection to the simple act of volunteering. The
Commission observes that Good Samaritan statutes may be seen as an attempt to
eliminate the perceived inadequacies of the common law rule under which a
Good Samaritan or volunteer who acts voluntarily for the benefit of society,
by assisting an injured person or providing services to another, can be held
liable for failing to exercise reasonable care. 4.14
The Commission emphasises that any Good Samaritan
legislation proposed by the Commission must be clear. It must also offer a
coherent and comprehensive guide to Good Samaritans, voluntary rescuers and
voluntary service providers as to their legal position. 4.15
In the subsequent sections, the Commission examines
the legislation that applies to Good Samaritans and volunteers in other
States. Drawing on their experience, the Commission identifies the type of
legislation that is suited to Ireland. The Commission notes at this stage
that, where full immunity is not involved, these statutes often state that a
Good Samaritan or volunteer is not required to comply with the normal
standard of negligence but is only to be held liable where gross negligence
is established. The Commission considers whether this standard should be
applied to Good Samaritans, volunteers and volunteer organisations in Ireland
or whether the current standard of ordinary negligence is more appropriate.
An underlying objective in this is to strike an acceptable balance between
the need to afford protection to Good Samaritans and volunteers and an
injured person‟s legitimate interest to seek redress for injury or
harm. (2)
Good Samaritan Legislation in other Jurisdictions (a)
Introduction 4.16
In this section, the Commission examines the
scope of Good Samaritan statutes in other comparable common law jurisdictions
to determine their relevance to the proposed legislation in this State. The
Commission observes that most common law jurisdictions have adopted either Good
Samaritan or volunteer legislation, if not both. The Commission notes,
however, that there is no generally accepted formula for the creation of such
legislation and that legislation differs greatly from jurisdiction to
jurisdiction. (b)
United States 4.17
Every State in the United States has enacted some
form of Good Samaritan legislation.17 Much of this legislation
protects from litigation to those who assist in emergencies. This protection
is usually predicated on the |
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17
See Eric A.
Brandt, Comment: Good Samaritan Laws – The Legal Placebo: A Current Analysis 17 Akron L. Rev.
3030-303 (1983) for an overview. |
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90 |
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condition
that the Good Samaritan acts in good faith and without gross negligence.
Furthermore, the Good Samaritan must not have received anything for his or
her efforts or participated with the expectation of receiving any such
benefit. It is beyond the scope of this Report to examine each of the
relevant statutes so the Commission has singled out the more salient
features. 4.18
In 1959, California was the first State in the
United States to enact Good Samaritan legislation.18 One by one
the other States and the District of Columbia enacted similar legislation.
While many statutes are similar, others carry the distinctive scars of the
particular case or incident which led to their enactment. Bearing this in
mind, the Commission discusses the various protections on offer in the United
States. In spite of differences regarding, for instance, the category of
person to which the protection applies or the type of conduct which falls
within its remit, the Commission discerns a common thread throughout: the
goal of protecting those who provide emergency medical care and assistance,
in good faith and without remuneration. 4.19
The Commission points first to the category or
categories of person afforded protection by the statute. While some statutes protect
narrow classes of person, others protect much broader classes.19
For instance, some States have chosen to protect only those individuals who
are licensed or certified in the medical field. In this regard, the
Massachusetts20 Massachusetts General Laws 2007and Michigan21
statutes have a very narrow remit, affording protection to physicians,
physicians‟ assistants and registered licensed nurses. The Oklahoma
statute is also narrow to the extent that it protects licensed health care
professionals alone.22 By contrast, the
Commission notes that other States provide protection to larger classes of
person. The Kansas statute, for instance, protects any person licensed to
practice in any branch of the healing arts.23 Broader again is the
Missouri statute,24 which protects licensed physicians and
surgeons, registered or licensed nurses, and any person trained |
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18
1959 Cal.
Stat. ch. 1507. This is currently codified as Cal & Bus Prof Code § 2395. 19
For a
discussion of the variations in this regard see Veilleux Annotation, Construction
and Application of "Good Samaritan" Statutes, 68 A.L.R. 4th 294. 20
Mass. Gen. Laws ch. 112,
12B. 21
Mich. Comp. Laws 691.1501. 22
59 Okl St Ann § 518 (2006). 23
Kan Stat Ann § 65-2891 (e). 24
Mo. Rev. Stat. 537.037. |
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91 |
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to
provide first aid in a standard recognised training program. Maryland25
seeks to protect health care professionals and various types of rescue group.
Arkansas,26 Delaware,27
Minnesota28 and Washington,29 on the other hand, protect “any person” who is involved in a Good Samaritan situation.
The Commission
notes that in the case of Minnesota, the statute provides that
"person" includes a public or private non-profit volunteer
fire-fighter, volunteer police officer, volunteer ambulance attendant,
volunteer first provider of emergency medical services, volunteer ski
patroller, and any partnership, corporation, association, or other entity. 4.20
The Commission observes that while all States
protect the Good Samaritan‟s overall act of rendering assistance, there
are variations in the type of conduct that is understood to be included. At
one end of the spectrum, the Commission notes that the Oklahoma statute
protects volunteer acts of artificial respiration, restoration of breathing,
prevention of blood loss, or restoration of heart action or circulation of
blood.30 In Connecticut immunity from liability extends to persons
rendering emergency medical assistance, first aid or medication by injection.31
At the other end of the spectrum, the Commission notes that the Maryland
statute protects persons giving any type of assistance or medical care.32 4.21
The Minnesota statute is explicit in the breadth
of protection it affords in that it protects persons who render “emergency
care, advice, or assistance”.33 “Emergency care,” in this sense,
includes providing emergency medical care by using or providing an automatic
external defibrillator. Furthermore, in McDowell
v Gillie, the North Dakota Supreme Court broadly |
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25
Md. Code Ann., Cts. & Jud. Proc. 5-603
includes volunteer fire departments, ambulance and rescue squads. 26
Ark. Code Ann. 17-95-101 (Michie 2002). 27
Del. Code Ann. tit. 16, 6801. 28
Minn. Stat. 604A.01, subd. 2(b). The Commission
notes that the reason for this might be due to the fact that this state
imposes a duty to assist a person in need. See chapter 1 in this regard, 29
Wash. Rev. Code Ann. 4.24.300 (West 2003) (amended
2003). 30
Okla. Stat. tit. 76, 5(a)(2). 31
Conn Gen Stat Ann § 52-557b. 32
Md. Code Ann., Cts. & Jud. Proc. 5-603(a). 33
Minn. Stat. 604A.01, subd. 2(b). |
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92 |
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defined
“render” as “[t]o give or make available”.34 By this logic, one
might still be considered a Good Samaritan where one brings a rope to the
scene of a person drowning, even where one does not use the rope to assist.
However, in Johnson v Thompson Motors of Wykoff35 the
Minnesota Court of Appeal noted that the plaintiff‟s claim was not for
failure to render reasonable “assistance” but for failure to warn customers in advance. The court thereby limited the application
of the Good Samaritan statute to present or existing emergencies, not future
emergencies.36 Thompson Motors had no statutory duty to render
"assistance” before the plaintiff was shot. 4.22
Variations also appear in the
statutes regarding the situations in which
the assistance must be rendered in order to benefit from the protection. The
Illinois37 and Idaho38 statutes stipulate that
assistance must be rendered at the scene of the “accident”. The Commission
observes that this is the case with most of the statutes. The Utah statute
goes further, however, by extending protection to those rendering assistance
at the scene of an “emergency.”39 In his article, Nowlin argues
that the term "emergency" is a broader than the term
"accident." He notes that while an emergency might involve an
accident, not all accidents may be considered emergencies.40
Furthermore, the Commission notes that a situation of emergency might extend
beyond the confines of the time or place in which the accident occurs. In
this regard, the Commission notes that Georgia has expanded the circumstances
in which assistance may be given to allow for the scene of the “accident or
emergency”.41 In a similar fashion, the Virginia statute allows
for assistance to be given at the scene of an accident, fire or any life-threatening emergency.42
The Washington statute |
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34
McDowell v. Gillie 626 NW2d 666 at 671. 35
(No C1-99-666 2000 WL 136076) Minn Ct App 2
February 2000. 36
See Nowlin, “Don‟t Just Stand There, Help Me!: Broadening the Effects if Minnesota‟s Good
Samaritan Immunity Through Swenson v. Waseca Mutual Insurance Co.”
(2003-2004) 30 Wm Mitchell L Rev 1001, at 1014. 37
745 Ill Comp Stat 49/1-75. 38
Idaho Code 5-330. 39
Utah Code Ann. 78-11-22. 40
Nowlin, “Don‟t Just Stand There, Help Me!: Broadening Minnesota‟s Good Samaritan Immunity
through Swenson v Waseca Mutual Insurance Co.” (2003-2004) 30 Wm Mitchell Law
Rev 1001. 41
Ga Code Ann § 51-1-29. See also Ark. Code Ann §
17-95-101(a) and Wis Stat § 895.48(1). 42
Va. Code Ann. 8.01-225 (A)(1). |
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93 |
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clearly
states that protection is to be afforded to those who render “emergency care
at the scene of an emergency or who participates in transporting.”43
New Jersey has also extended protection to those who transport injured
persons from the scene of the accident or emergency.44 4.23
Similarly, Minnesota provides
protection for those who render emergency
care, advice or assistance “during transit”.45 In Swenson v
Waseca Mutual Insurance Co,46 the appellant contended that the
Minnesota Good Samaritan law‟s “during transit” provision did not apply
to the mere act of driving an injured party from the scene of an accident to
a hospital. Instead, the appellant argued, the “during transit” provision only
protects those who provide some sort of emergency care while the person is
being transported to a health-care
facility.47 The court identified the purpose
of the statute as being to encourage laypersons to help others in need even
when no legal duty to do so existed.48 It reasoned, therefore,
that the interpretation proffered by the appellant would be too narrow in
that it offered little protection to laypersons.49 The court
observed that professional emergency technicians were not protected by the Good
Samaritan law while on the job, due to their pre-existing duty to provide
care. As a result, the logical conclusion of the appellant‟s argument
would be that the statute only protected laypersons providing emergency care
in a vehicle in transit to a health care facility while a third person drove.50
Since this could not have been the intention of the legislature, the court
concluded that the "during transit" provision provided immunity to
"laypersons whose only act of assistance is to drive a person from the
scene of an emergency to a health-care facility."51 |
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43
Wash. Rev. Code § 4.24.300. 44
NJSA 2A:62A-1, 2A:62A-8, 2A:62A-9 (2007). 45
Minn. Stat. 604A.01, subd. 2(b). 46
653 NW2d 764 (Minn Ct App 2002). See Nowlin, Don‟t
Just Stand There, Help Me!: Broadening the Effects if Minnesota‟s Good
Samaritan Immunity Through Swenson v. Waseca Mutual Insurance Co. (2003-2004)
30 Wm Mitchell L Rev 1001, at 1016-1017. 47
Ibid at 797. 48
Ibid at 797. 49
Ibid at 799. 50
Ibid at 798-799. 51
Ibid at 800. A different conclusion was
reached in Dahl v Turner 459 P2d 816 (NM
Ct App 1969). See Nowlin, Don‟t Just Stand There, Help Me!: Broadening |
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94 |
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4.24
The Commission notes that some states use neither
the term “accident” nor “emergency,” referring instead to the characteristics
of the imperilled person, thereby implying an emergency situation. Delaware,52 for instance, protects acts of assistance
given “to a person who is unconscious, ill, injured or in need of rescue
assistance, or any person in obvious physical distress or discomfort.”
Minnesota provides immunity to the Good Samaritan where he or she renders
assistance knowing “another person is exposed to or has suffered grave
physical harm”.53 In Swenson v Waseca Mutual Ins. Co54 the
Court found that the Good Samaritan statute did not require the injured
person to be in “grave physical harm” before assistance could be rendered.55 4.25
Other States have chosen to specify the locations
where Good Samaritan immunity will not apply. In Florida, the Good Samaritan
statute provides that the statutory immunity applies to assistance “at the
scene of an emergency outside of a hospital, doctor‟s office, or other
place having proper medical equipment.”56 Similarly, the
legislators in Maine provided that the Good Samaritan immunity shall not
apply if the first aid or emergency treatment or assistance is rendered on
the premises of a hospital or clinic.”57 4.26
Nowlin notes that the legislatures in the United
States have attempted to reduce ambiguity by defining the terms “emergency”
and “accident.”58 The Californian statute
defines the scene of an emergency as including, “but not limited to, the
emergency rooms of hospitals in the event of a medical disaster.”59 The Minnesota
legislature considers the scene of an emergency to be “an area outside the
confines of a hospital or other institution that
has hospital facilities or an office of a person licensed to practice one or |
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the Effects if Minnesota‟s
Good Samaritan Immunity Through Swenson v. Waseca Mutual Insurance Co. (2003-2004)
30 Wm Mitchell L Rev 1001, at 1025. 52
Del Code Ann
tit. 16 § 6801 (a). 53
Minn. Stat.
604A.01, subd. 2(b). 54
653 NW2d 764
(Minn Ct App 2002). 55
Ibid at 796. 56
Fla Stat Ann §
768.13(2)(a). 57
Me Rev Stat
Ann tit. 14, § 164. 58
Nowlin, Don‟t
Just Stand There, Help Me!: Broadening the Effects
if Minnesota‟s Good Samaritan Immunity Through Swenson v Waseca
Mutual Insurance Co. (2003-2004) 30 Wm Mitchell L Rev 1001. 59
Cal. Bus.
& Prof. Code 2395. |
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95 |
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more
of the healing arts.”60 The Good Samaritan statue in Utah is
broader and defines emergency as “an unexpected occurrence involving injury,
threat of injury, or illness to a person or the public.”61 4.27
In Buck v Greyhound Lines Inc62 the
Nevada Supreme Court denied the defendant‟s claim to Good Samaritan
immunity as the plaintiffs were uninjured at the time he offered assistance.63
The Court read the statute as applying only to those who render emergency care
to injured persons.64 The defendant in Buck was driving his truck
at night when he came upon a car which had broken down in the middle of the
highway.65 He offered to assist the women in the car by alerting
other drivers to their presence with his headlights. The driver of an
approaching bus did not realise the women's car was in the middle of the
road. The bus struck the car and injured the occupants. The court denied the
defendant's claim of Good Samaritan immunity because the women were uninjured
at the time he offered assistance.66 4.28
The Commission notes that this may be contrasted
with cases such as McDowell v Gillie, 67 where
immunity was granted to those who merely asked whether assistance was needed.
In that case, the court considered the broad statutory definition of “aid or
assistance”, finding that it meant “any actions which the aider reasonably
believed were required to prevent [injury to the victim].”68 In Flynn v United States69 immunity
was granted where a person who merely turned on safety lights at the scene of
an emergency. However, in Howell v City
Towing Associates Inc.70, a call for help did not satisfy the |
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60
Minn. Stat. 604A.01, subd. 2(b). 61
Utah Code Ann. 78-11-22(1). 62
(783 P2d 437) Nev 1989 at 441. 63
See Nowlin, Don‟t Just Stand There, Help
Me!: Broadening the Effects if Minnesota‟s Good Samaritan Immunity
Through Swenson v. Waseca Mutual Insurance Co. (2003-2004) 30 Wm Mitchell L
Rev 1001, at 1026. 64
Nev. Rev. Stat. 41.500. 65
Buck v. Greyhound Lines Inc (783 P2d 437)
Nev 1989 at 441. 66
Ibid at 441. 67
626 N.W.2d 666 (N.D. 2001). 68
626 N.W.2d 666 at 671 quoting the North Dakota
Statutes, N.D. Cent Code § 32.03-1.01(1) (2001). 69
902 F.2d 1524 (10th Cir. 1990). 70
717 SW2d 729 (Tex Ct App 1986). |
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96 |
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requirement
of rendering emergency care.71 The defendant was giving the
elderly plaintiff a lift home after the she had been involved in a car
accident, when she went into cardiac arrest. It was held that the defendant,
who had called his dispatcher who in turn contacted emergency personnel, was not
entitled to Good Samaritan protection. Nowlin notes that the court may have
decided differently had the driver contacted medical personnel directly.72 4.29
Some statutes make it a precondition for immunity
to apply that the assistance be rendered
without a fee or expectation of such a fee. The Alabama
statute, for instance, states that assistance must be rendered gratuitously
and in good faith,73 while the Colorado
statute stipulates that the assistance must be rendered without compensation.74
The statutes in Hawaii and Minnesota have gone a little further. In Hawaii
services must be rendered without remuneration or expectation of remuneration75
and in Minnesota services must be
rendered without compensation or expectation of compensation.76 4.30
When it comes to the standard of care, the
Commission observes that the statutes generally define the standard of care
that is expected of the Good Samaritan.77 Some statutes grant a
blanket-immunity to volunteers from liability for any acts or omissions when
rendering assistance.78 Others, such as those in Arkansas79
and Florida,80 do no more than codify the common law position as
regards the standard of care, by requiring the individual to act as a reasonable and prudent person would. The
Commission notes, however, that |
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|
71
717 SW2d 729
at 732. 72
Nowlin Don‟t
Just Stand There, Help Me!: Broadening the Effects if Minnesota‟s Good
Samaritan Immunity Through Swenson v. Waseca Mutual Insurance Co. (2003-2004)
30 Wm Mitchell L Rev 1001, at 1026. 73
Ala. Code
6-5-332. 74
Colo. Rev.
Stat. 13-21-108. 75
Haw. Rev. Stat.
663-1.5. 76
Minn. Stat.
604A.01, subd. 2(b). 77
See Veilleux Annotation, Construction and
Application of "Good Samaritan" Statutes, 68 A.L.R. 4th 294 for an
analysis of the statutes in this regard. 78
Ga Code Ann § 51-1-29; Mass Gen Laws Ann ch. 112 §
12B; W.Va Code Ann § 55-7-15 (2003). 79
Ark Code Ann §
17-95-101. 80
Fla Stat Ann §
768.13(2)(a). |
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97 |
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|
most
statutes grant immunity for acts of ordinary negligence81 while
excluding acts of gross negligence or wilful or wanton misconduct.82 4.31
The Rhode Island83 case of Boccasile et al v Cajun Music
Ltd84 illustrates the effect of a Good Samaritan statute. The
deceased was attending a music festival and suffered a severe allergic
reaction. The defendants were a doctor, a
nurse and a physician‟s assistant, who had volunteered as first aiders at
the music festival. The doctor and other members of the first-aid crew
attended Mr. Boccasile while the nurse remained at the first-aid tent. As Mr.
Boccasile could not be moved, the doctor stayed with him while the crew
returned to the first-aid tent to retrieve a single-dose adrenaline injector
and to ring an ambulance. After the
doctor administered the drug to him, Mr. Boccasile complained that he
felt worse. As there was no other injector the doctor tried to administer a
second dose, at which point Mr. Boccasile fell unconscious. The doctor began mouth-to-mouth resuscitation,
while the physician‟s assistant administered chest compressions. An ambulance arrived and the
physician‟s assistant accompanied Mr. Boccasile to the hospital.
Mr. Boccasile never regained consciousness and the defendants were sued for
his death. The plaintiff asserted that when the defendants responded to the
emergency, they failed to bring along the necessary equipment and to
administer the medication in a timely manner. In their defence, the
defendants claimed that they were protected by the Rhode Island Good
Samaritan legislation, which set a gross negligence test for liability. While
the court appears to have agreed with the defendants,
the Commission notes that the determinative factor of the case was the
fact that the plaintiff had failed to submit sufficient evidence as to the
appropriate standard of care. (c)
Australia 4.32
The Commission notes that recent Australian
governments have undertaken major reforms in the area of tort and, in
particular, the law of negligence. Most of the parliaments of the different
States and territories have introduced provisions designed to modify the law
of negligence as it applies to both Good Samaritans and volunteers. The
Commission examines, in this section, the legislative provisions relating to
Good Samaritans. As with the |
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|
81
Conn Gen Stat Ann § 52-557B (2007). 82
Del Code Ann tit. 16 § 6801(a); Ind Code Ann §
34-30-12-1 (b). 83
R.I. Gen. Laws 9-1-27.1. 84
694 A2d 686, 1997 RI Lexis 153 (SC Rhode Island).
The Commission notes that this case may be equally applied to voluntary
rescuers and possibly voluntary service providers. |
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|
98 |
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|
statutes
in the United States, while there are similarities in the texts there are
also important differences. 4.33
In New South Wales the Civil Liability Act
2002 provides extensive protection for Good Samaritans. Any person who
acts as a Good Samaritan will not incur personal civil liability for their
acts or omissions provided that certain conditions
are met.85 Such conditions
stipulate that there must be “an emergency;” the Good Samaritan must be
assisting “a person who is apparently injured or at risk of being injured,”86
and the Good Samaritan must be acting “in good faith” and “without
expectation of payment or other reward”.87 Therefore, it is clear
that the Act does not limit protection to Good Samaritans who are, for
example, medically trained, but neither does it limit the protection to
medical interventions or interventions made at the scene of an accident.
Although it is not explicitly stated, it is likely that protection would also
be afforded to persons giving advice. 4.34
The protection afforded by the Act does not
apply, however, if the Good Samaritan has caused the injury in the first
place, either intentionally or negligently. For example, where the driver of
a motor vehicle runs over a pedestrian, the driver cannot rely on the section
for protection when they provide first
aid to the person they have injured.88 Furthermore,
a Good Samaritan cannot rely on the section where he or she was intoxicated
or where he or she fraudulently impersonated a professional rescuer.89
Section 57(2) of the Act provides that the section does not affect the
vicarious liability of any other person for the acts or omissions of the Good
Samaritan. 4.35
The Queensland legislation applicable to Good
Samaritans, which was originally enacted as the Voluntary Aid in Emergency
Act 1973 and subsequently as the Law Reform (Miscellaneous Provisions)
Act 1995 is one of the oldest pieces of legislation in this regard. Its
operation is limited to doctors and nurses90
rendering medical care, aid or assistance to an injured person in |
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|
85
Section 57. 86 Section
57. 87
Section 56. 88
Eburn, “Protecting Volunteers?” (2003) 18 Australian
Journal of Emergency Management 7, at 8. 89
Section 58 of the 2002 Act provides that
impersonating a health care or emergency services worker or a police officer
or falsely represent that they have skills or expertise in connection with
the rendering of emergency assistance. 90
Or such other persons as may be prescribed by
regulation. |
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|
99 |
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|
circumstances
of emergency.91 It appears, therefore, to afford the most limited
protection to Good Samaritans. For the protection to apply, a doctor or nurse
must be rendering assistance at or near the scene of the incident or other
occurrence constituting the emergency. Alternatively, he or she must be providing
assistance to an injured person while that person is being transported from
the scene of the emergency to a hospital or other “adequate medical care.”
Persons availing of the protection must act in good faith and without gross
negligence, without “fee or reward” or expectation of receiving such a “fee
or reward.”92 In section 15 of the Act, the term “injured person”
is defined as including a person suffering
or apparently suffering from an illness. The Commission
notes, however, that the Civil Liability (Good Samaritan) Amendment Bill 2007
proposes to protect passers-by and witnesses to accidents, who offer
assistance in good faith, without reward or expectation of reward. 4.36
In Western Australia, section 5AD of the Civil
Liability Act 2002 protects any person rendering emergency assistance to
a person who appears to be in need of such assistance, at the scene of an
emergency, in good faith and without recklessness or expectation of payment
or other consideration. Section 5AB defines “emergency assistance” as
emergency medical assistance or any other form of assistance to a person
whose life or safety is endangered in a situation of emergency. In addition,
the Act provides that a medically qualified person who gives advice, in good
faith and without recklessness and without expectation of payment or other
consideration, about the assistance being given is also protected under the
Act. The protections provided for in the Act do not apply if the Good
Samaritan was intoxicated. Similarly to New South Wales, the Act provides
that the provisions in section 5AD do not affect the vicarious liability of
any person for the acts or omissions or advice of the Good Samaritan, whether
he or she is medically qualified. 4.37
In South Australia, the Wrongs Act 1936,
now the Civil Liability Act 1936, protects any person who acts “in
good faith and without recklessness” and without expectation of payment or
other consideration, who comes to the aid of another who is in need or
appears to be in need of emergency assistance.93 Emergency
assistance is defined as medical assistance or any other form of assistance
to a person whose life or safety is endangered in a situation of emergency.94
The Commission observes, therefore, that damage to |
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|
91
The word emergency is not defined in the
Queensland Act. 92
Eburn Protecting Volunteers? The Australian
Journal of Emergency Management, Vol 18 No 4 November 2003 7-11 at 7. 93
Section 74. 94
Section 74(1). |
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|
100 |
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|
property
is not included. To the extent that the word “emergency” appears in both
subsections of the definition, the definition of “emergency assistance” is not entirely helpful.95
Eburn attempts to clarify
the situation by defining “emergency” as any “major accident or illness that is life
threatening and requires urgent treatment.”96 It is not clear,
however, whether a less drastic situation could also be termed an
“emergency.” Injury is not defined in the Act. Finally, the Commission notes
that the Act replicates the New South Wales provisions regarding medically
qualified persons who give advice.97 4.38
The Wrongs (Liability and Damages for Personal
Injuries) Amendment Act 2002 aims to broaden the protection afforded to
Good Samaritans and volunteers.98
Section 38(1) of the Act defines “emergency assistance” as “emergency
medical assistance; or any other form of assistance to a person whose life or
safety is endangered in a situation of emergency.” Furthermore, a “Good
Samaritan” is defined as any “person who, acting without expectation of
payment or other consideration, comes to the aid of a person who is
apparently in need of emergency assistance” or a “medically qualified
person.” 4.39
In Victoria, amendments to the Wrongs and
Other Acts (Public Liability Insurance Reform) Act 2002 provide similar
protections to doctors and nurses providing assistance in the event of an
emergency. However, it goes further than the Queensland legislation by
including any Good Samaritan who goes to the aid of another person in an
emergency or accident, provided that they too have acted in good faith, and
without reward. The Wrongs Act 1958, on the other hand, is similar to
the legislation in South Australia. Some key differences include the
provision which states that any person, not just a “medically
qualified person”, may rely on the giving of “advice” to benefit from the
immunity.99 While the Act stipulates that the Good Samaritan must
act in good faith, there is also no requirement that the action be “without
recklessness.”100 Unlike New South Wales, the Good Samaritan can
rely on the legislation even if he or she is responsible for having created
the emergency or |
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|
95
Section 74(1)(a) and (b). 96
Eburn, Emergency Law 2nd ed.
(Sydney: Federation Press; 2005) pp.45-48. 97
Section 74
protects any medically qualified person who gives advice, via telephone
or other communication device, without expectation of reward. 98
Received
assent on 12 September 2002: includes the protection of both Good Samaritans
and volunteers. 99
Section 31B(2). 100
Section 31B(2). |
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101 |
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|
accident.101
The term “Good Samaritan” is
defined as an individual who provides
assistance, advice or care to another person in relation to an emergency or
accident. The person to whom, or in relation to whom, the assistance, advice
or care is provided must be at risk of death or injury, be injured, or be
apparently at risk of death or injury, or be apparently injured.102 “Injury”
is defined in the Act as personal or bodily injury and includes pre-natal
injury, psychological or psychiatric injury, disease and aggravation,
acceleration or recurrence of an injury or disease. 4.40
The most recently enacted
legislation on Good Samaritans is in Tasmania. The Civil Liability (Amendment) Act 2008103
amends the Civil Liability
Act 2002 by inserting a new Part 8A in
relation to Good Samaritans. Protection is afforded against civil liability
of any kind.104 A “Good Samaritan” is defined as an individual who
provides assistance, advice or care to another person in relation to an
emergency or accident and acts in good faith and without recklessness.105 Protection is provided where he or she provides assistance
advice or care “in good faith and without recklessness”. Again the Good
Samaritan cannot expect to receive any money or other financial reward106
and the person whom the Good Samaritan is helping must be ill, at risk of
death or injury, injured, apparently ill, apparently at risk of death or
injury or apparently injured.107 The 2008 Act also stipulates that
the Good Samaritan must act “at the scene of the emergency or accident.”
However, a Good Samaritan can also provide advice by telephone or other means
of communication to a person at the scene of the emergency or accident. Like
Victoria, the Good Samaritan can rely on the protection even if he or she is
responsible for having caused the accident or emergency. The protection does
not apply if the person was intoxicated and he or she must exercise
reasonable care and skill. Protection is also excluded for anyone who was
impersonating a health care or emergency services worker or a police officer
or who otherwise falsely represents that he or she has skills or expertise in
connection with the rendering of emergency assistance. |
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101
Section 31B(3). 102
Section 31B(1)(b). 103
Act No. 39 of 2008. 104
Section 35A(1) of the Civil
Liability Act 2002, as inserted by the 2008 Act. 105
Section 35B (1) of the 2002 Act, as inserted by the 2008
Act. 106
Section 35B(1)(A). 107
Section 35B(1)(b). |
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102 |
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4.41
In the Australian Capital Territory, under the Civil
Law (Wrongs) Act 2002, Good Samaritans – and volunteers - are protected
from civil liability where they have rendered assistance or have given advice
about the assistance honestly and without recklessness and without
expectation of payment or other consideration to a person who is injured or
at risk of being injured or to a person in need of emergency medical
assistance. A person who is intoxicated cannot avail of the protection under
the Act or where the liability falls within the ambit of a scheme of
compulsory third-party motor vehicle insurance. Under the 2002 Act, only
medically qualified persons can avail of the protection as regards giving
advice about the treatment of the person. 4.42
One important point to note about the legislation
of Western Australia and New South Wales is that, going further than the
Queensland or Victoria legislation, they specifically remove personal
protection for Good Samaritans with or without medical qualifications, should
their ability to apply reasonable care and skill be significantly impaired by
reason of alcohol or other substance that is not prescribed. (d)
Canada 4.43
Most of the Canadian provinces have enacted some
form of Good Samaritan legislation. Prince Edward Island provides the
broadest protection in Canada under the Volunteers Liability Act 1988.108
The Commission observes that it seeks to protect both Good Samaritans and
volunteers, including volunteer fire fighters. A “volunteer” is defined as
“any individual, not in receipt of fees, wages or salary”, who renders
services or assistance in respect of a person who is ill, injured or
unconscious as a result of an accident or other emergency, or in respect of
real or personal property in danger. The individual is protected regardless
of whether he or she has special training to render the service or assistance
and whether the service or assistance is rendered by the individual alone or
in conjunction with others. Services or assistance can be rendered at any
place. Protection is not afforded, however to those whose conduct constitutes
gross negligence. 4.44
The provisions of the Volunteer Services Act
(Good Samaritan) 1989 in Nova Scotia are virtually identical to those of
the Prince Edward Island Act.109 A “volunteer” includes an
individual, corporation or organisation that donates or distributes, for
free, food or sundries to those in need. Section 4A of the Act provides that
a volunteer is not generally liable for damages incurred as a result of
injury, illness, disease or death resulting from the consumption of food or
the use of sundries by a person in need.
This is so unless the injury, illness, |
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108
Available at
http://www.gov.pe.ca/law/statutes/pdf/v-05.pdf 109
Available at http://www.gov.ns.ca/legislature/legc/statutes/volnteer.htm |
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|
103 |
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|
disease
or death was caused by the gross negligence or the wilful misconduct of the
volunteer or the volunteer knew that the food or sundries were contaminated
or otherwise unfit for human consumption or use at the time of donation or
distribution, respectively. 4.45
Saskatchewan provides for a more limited form of
protection in the form of the Emergency Medical Aid Act 1979.110
It protects two categories of person. It protects physicians and
registered nurses who render emergency medical services or first aid,
voluntarily and without expectation of reward, outside a hospital or other
place having adequate medical facilities and equipment. It
also protects any person who voluntarily renders first aid assistance at the
immediate scene of the accident or emergency. Services must be rendered in
respect of a person who is ill, injured or unconscious as a result of an
accident or other emergency. The threshold for liability is set at gross
negligence. While protection is afforded to Good Samaritans, regardless of
whether they have medical qualifications, protection is limited to
interventions which are of a medical nature. 4.46
In Alberta
the Emergency Medical Aid Act 2000 extends protection to any
“registered health discipline member” in addition to physicians and
registered nurses.111 The standard applied is again that of
gross negligence and the provisions are similar to those in the Saskatchewan
and Newfoundland Acts. 4.47
In British Columbia the Good Samaritan Act
1996112 provides narrower protection than Prince Edward Island
and Nova Scotia. The Act provides protection to any person rendering
emergency medical services or aid to an ill, injured or unconscious person at
the immediate scene of the accident or emergency, unless that person is
employed expressly for that purpose or intervenes “with a view to gain”. The
Commission notes that it is unclear whether the use of the term “aid” in this
context refers to first aid in particular or assistance in general. The
Commission notes that protection extends only so far as the conduct of the
person in question does not constitute gross negligence. 4.48
In Manitoba the Medical Act provides some
protection for Good Samaritans.113 While the Act restricts the
practice of medicine to those who have medical qualifications, it permits any
person to give “necessary medical or |
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|
110
Available at http://www.qp.gov.sk.ca/documents/English/Statutes/Statutes/E8.pdf 111
Available at
http://www.qp.gov.ab.ca/Documents/acts/E07.CFM 112
Available at
http://www.qp.gov.bc.ca/statreg/stat/G/96172_01.htm 113
Available at
http://web2.gov.mb.ca/laws/statutes/ccsm/m090e.php |
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|
104 |
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|
surgical
aid in case of urgent need if that aid is given without hire, gain or hope of reward.” The Commission notes that there is no provision
in the Act, however,
dealing with the consequences for negligent acts or omissions. 4.49
In Ontario the Good Samaritan Act 2001 extends
protection to “health care professionals” who provide emergency health care
services or first aid assistance to a person who is ill, injured or
unconscious as a result of an accident or
other emergency. The Act stipulates that the health
care professional must not provide the services or assistance at a hospital
or other place having appropriate health care facilities and equipment for
that purpose. The Act also protects any other person who provides emergency
first aid assistance to a person who is ill, injured or unconscious as a
result of an accident or other emergency, if the individual provides the
assistance at the immediate scene of the accident or emergency. Furthermore,
the Act provides for reasonable reimbursement of expenses reasonably
incurred. 4.50
The duty to assist a stranger in need under the Quebec
Civil Code and the Quebec Charter of Human Rights and Freedoms 1975 has
been discussed in Chapter 2. However, the Québec Civil Code also provides,
under article 1471, protection for the Good Samaritan. Article 1471 states
that: “Where a
person comes to the assistance of another person or, for an unselfish motive,
disposes, free of charge, of property for the benefit of another person, he
is exempt from all liability for injury that may result from it, unless the
injury is due to his intentional or gross fault.”114 The
Commission interprets this as meaning that the Good Samaritan who assists the
injured person is immune from civil liability provided he or she is not
guilty of intentional or gross fault. D
Detailed elements of the proposed legislation 4.51
Based on the comparative analysis in Part C, the
Commission now turns to the detailed elements of the legislation it
recommends concerning the civil liability of Good Samaritans and volunteers. (1)
Single piece of legislation for Good Samaritans and
Volunteers (a)
Consultation Paper Recommendation 4.52
In the
Consultation Paper the
Commission provisionally recommended that a
single piece of legislation be enacted to deal with Good Samaritans, voluntary rescuers and voluntary
service providers, taking into |
||
|
114
Québec Civil Code 1991, c. 64, a. 1471 (civil code of
Quebec, S.Q., 1991, c.64, Book Five: Obligations: Title One:
1471). |
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|
105 |
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|
account
the general policy setting of encouraging active citizenship and volunteerism
in Ireland.115 To the extent that the Private Member Bill, the Good
Samaritan Bill 2005, which formed the backdrop to the Attorney General‟s
request to the Commission, dealt only with Good Samaritans and volunteers who
are engaged in certain types of activity, the Commission also expressed its
preference for a legislative approach that was more inclusive. (b)
Discussion 4.53
The Commission acknowledges that, for the most
part, the policy behind both Good Samaritan and volunteer statutes is to
encourage those without a pre-existing duty to assist another.116
In this regard, the Commission refers to the policy background discussed in
Chapter 1 which is concerned with promoting active citizenship and
volunteering in Ireland and considers, therefore, the rationale for enacting
such legislation to be in line with the experience
of other jurisdictions. While some jurisdictions
have enacted separate pieces of legislation to deal with Good Samaritans, on
the one hand, and volunteers, on the other, the Commission notes that a Good
Samaritan may be seen as a species of volunteer. In this regard, the
Commission considers that the Good Samaritan “volunteers” to help in
circumstances of emergency or accident. The Commission has, therefore,
concluded that a single piece of legislation dealing with both Good
Samaritans and volunteers would be appropriate. The Commission observes that
this approach was supported by the majority of submissions received during
the consultation process after the publication
of the Consultation Paper. The Commission,
therefore, recommends the enactment of a single piece of legislation that
deals with the civil liability of both Good Samaritans and volunteers. 4.54
In the Consultation Paper, the Commission noted
that the term “Good Samaritan legislation” is often used to describe
legislation that relates to both Good Samaritans and volunteers. The
submissions, however, indicate that a more descriptive title would ensure
that volunteers understand that the proposed legislation is also relevant to
the activities which they undertake. The Commission is of the view,
therefore, that it would be more appropriate to refer to its proposed draft
legislation as the Civil Liability (Good Samaritans and Volunteers) Bill. 4.55
The Commission recommends the enactment of a
single piece of legislation that deals with the civil liability of both Good
Samaritans and volunteers. |
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|
115
LRC CP 47-2007 at 4.47. 116 Veilleux, Annotation, Construction and
Application of "Good Samaritan" Statutes, 68 A.L.R. 4th 294. |
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|
106 |
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|
(2)
General scope of legislation 4.56
In the Consultation Paper,117
the Commission concluded that it would be inappropriate for any legislation
to set down strict circumstantial paradigms in which the intervention must be
undertaken. The Commission provisionally recommended, in this regard, that
the proposed legislation should accommodate the following: the range of
individuals that may constitute Good Samaritans and volunteers; the various
types of intervention that might be made;
and the different situations in which those interventions might take place.118 4.57
Submissions received by the Commission in the
consultation period after the publication of the Consultation Paper agreed
with the Commission‟s provisional recommendation, noting the importance
of protecting as wide a class of persons,
situations and conduct as possible. The Commission
observes that this is in line with the policy background which it has
considered in Chapter 1 and, therefore, confirms the recommendation made in
the Consultation Paper in this respect. 4.58
The Commission recommends that the proposed
legislation should accommodate: the range of individuals that may constitute
Good Samaritans and volunteers; the various types of intervention that might
be made; and the different situations in which those interventions might take
place. (3)
Protected Person 4.59
As the Commission pointed out in the Consultation
Paper, any legislation must be broad enough to cover the wide range of
individuals who may be classified as either a Good Samaritan or a volunteer.119 4.60
While many jurisdictions have limited the
application of their Good Samaritan and volunteer protection statutes to
narrow categories of person, the Commission is of the view that a more
inclusive approach would be appropriate in this jurisdiction. Recalling the
policy background discussed in Chapter 1, the Commission notes that a narrow
definition of who or what might constitute a Good
Samaritan or volunteer would be incompatible with the concept of “active
citizenship.” In this regard, the Commission recalls that the term “active
citizen” may be used to describe both individuals and organisations.
Furthermore, an individual active citizen may be further categorised as a
formal or informal volunteer. Drawing from the examination of the protections
available in other jurisdictions, the
Commission notes that in most cases these apply to |
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|
117
LRC CP 47-2007 at
paragraph 4.50-4.51. 118
LRC CP 47-2007 at paragraph 4.51 119
LRC CP 47-2007 at paragraph 4.47 |
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|
107 |
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|
individuals
alone and not organisations. In addition, a distinction between formal and
informal volunteers is rarely, if ever, made. 4.61
The Commission recommends, therefore, that while
the legislation proposed should be broad enough to cover both individuals and
organisations, it should draw a clear line between individuals and
organisations, reflecting the very
different circumstances encountered by each. In
this regard, the Commission recalls the discussion in Chapter 3 which
illustrated the varying degrees to which individual Good Samaritans and
volunteers and voluntary organisations might come under a duty of care. The
Commission observed that, taking into account the need to ensure that members
of the public maintain a right to seek redress, it may be less just and
reasonable to hold an individual accountable for ordinary negligence than a
voluntary organisation. In support of this, the Commission points to the
extent to which voluntary organisations not only create risk but also the
extent to which they are in a position to absorb such risk. Given the
organisational structure of a voluntary organisation and the duties that this
of itself entails – which already includes statutory duties as employer such
as those under the Safety, Health and Welfare at Work Act 2005, it is
clear that an organisation is in a much stronger position to alleviate the
risk not only to itself and its volunteers, but also to those it assists. If
the public‟s right to seek redress is to be acknowledged, it is better
that liability should apply to the voluntary organisation rather than the
individual volunteer. The Commission therefore recommends that the legislation
should distinguish between, on the one hand, the liability of individuals,
and, on the other, the liability of organisations. The Commission notes that
the definition of “undertaking” in the Safety, Health and Welfare at Work
Act 2005 includes both corporate and unincorporated entities, as well as
for-profit and not-for-profit entities. The Commission considers that this
definition, limited to not-for-profit entities, would be an appropriate
legislative model to use to define the scope of the organisations to which
its recommendations should apply.120 4.62
The Commission recommends that the proposed
legislation should distinguish between, on the one hand, the liability of
individuals, and, on the other, the liability of organisations, whether
unincorporated or incorporated, which are not formed for profit. (4)
Protected Conduct 4.63
The Commission notes that some jurisdictions
limit the application of their Good Samaritan legislation to certain species
of conduct, such as interventions of a medical nature or the provision of
first aid assistance. For example, protection under the Oklahoma statute is
available only for acts of artificial respiration, restoration of breathing,
preventing blood loss, or restoring |
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120
On the benefits of incorporation, see Part B, above. |
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108 |
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|
heart
action or circulation of blood.121 The Commission observes that
limitations also exist in respect of the activities covered by volunteer
protection legislation. 4.64
Since it is intended that the proposed
legislation should cover the activities of Good Samaritans, volunteers and voluntary
organisations, the Commission notes that it will be necessary to ensure that
no voluntary activity that is for the benefit of society or the community in
general is excluded from its remit. Again recalling the policy setting
outlined in Chapter 1, the Commission notes that to take a more restrictive
approach would be incompatible with the broad concept of “active citizenship”
which encompasses a wide variety of socially benevolent activities. In
addition, to place limits on the types of activity covered by the legislation
might have the inadvertent effect of limiting the range of individuals who
may avail of its protection. 4.65
The Commission considers the most wide-ranging
legislative approach is to state that protection is available to those who
render “any assistance, advice or care.” The Commission underlines in this
respect the importance of ensuring that all activities are covered, whether
they are the front-line activities undertaken by Good Samaritans or the more
removed activities undertaken by those volunteering in the offices of a
voluntary organisation. Given that the Commission has noted in Chapter 1 of
the importance of providing first-aid and the associated use of automated
external defibrillators (AEDs) in the context of cardiac sudden death,
however, the Commission has concluded that it would be appropriate to include
these activities in the definition of “assistance, advice or care.” Subject
to these points, the Commission recommends that the proposed legislation
should avoid making qualifications regarding the type of activity covered,
other than to stipulate that it must be for the benefit of society or the
community in general. In this respect, while the precise scope of this should
not be defined, Commission considers that it would also be useful to indicate
that the activities contemplated are comparable to those encompassed in the
definition of charitable activities in section 3(11) of the Charities Act
2009. 4.66
In summary, therefore, the Commission recommends that
the proposed legislation should apply to conduct that involves those who
render any assistance, advice or care, including first-aid and the use of
automated external defibrillators (AEDs). The Commission also recommends that
the proposed legislation should apply to activities that are for the benefit
of the community, including charitable activities within the meaning of
section 3(11) of the Charities Act 2009. 4.67
The Commission recommends that the proposed
legislation should apply to conduct that involves those who render any
assistance, advice or care, |
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121
Okla. Stat. tit. 76,
5(a)(2). |
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109 |
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including
first-aid and the use of automated external defibrillators (AEDs). The
Commission also recommends that the proposed legislation should apply to
activities that are for the benefit of the community, including charitable
activities within the meaning of section 3(11) of the Charities Act 2009. (5)
Protected Situations 4.68
Some States have defined the types of situation
in which the Good Samaritan assistance or services must be provided for the
statutory protection to operate. For instance, some statutes stipulate that
the assistance must be rendered at the scene of an “accident.” The rationale
for this would appear to be to ensure that only that assistance which is
provided in the heat of battle is protected. Clearly, where the urgency of
the situation demands immediate response, there is less time to prepare and
resource oneself and there is more chance that a mistake will be made. The
Commission notes, however, that setting strict conditions as to the
circumstances in which the assistance or services must be rendered often
necessitates the making of arbitrary distinctions between those interventions
which merit immunity and those which do not on the basis of whether they fit
a particular situational paradigm. As a result, a Good Samaritan who renders
first aid (such as CPR) or uses an automated external defibrillator (AED) at
the roadside might be protected while the Good Samaritan who drives the
injured person to hospital may not. 4.69
Other statutes have taken a more expansive
approach by stipulating that the assistance or services must be rendered at
the scene of the accident or “emergency.” As discussed by the Commission in
the Consultation Paper and noted by Nowlin,122 the term
“emergency” appears to be broader than the term “accident.” In particular,
the term emergency might be used to describe events which did not evolve from
accidents but nonetheless require immediate intervention or situations which
are detached from the immediate scene of the accident, such as where the
injured person is being transported to a health care facility. The Commission
notes, therefore, that including the term “emergency” in the proposed
legislation would maintain a balance between ensuring that only those
interventions made in the “heat of battle” are protected while taking care not to exclude unnecessarily other types of
worthy intervention. The Commission emphasises,
however, that this qualification only applies in respect of Good Samaritan
interventions. The assistance and services of volunteers, either voluntary
rescuers or voluntary service providers, and voluntary organisations, on the
other hand, may be rendered in any type of situation. The Commission proposes
to use the relevant terms used to described situations of |
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122
LRC CP 47-2007, paragraph 1.35 and Nowlin, “Don‟t
Just Stand There, Help Me!: Broadening
Minnesota‟s Good Samaritan Immunity through Swenson v Waseca Mutual
Insurance Co.” 30 Wm Mitchell Law Rev 1001. |
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110 |
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emergency
contains in section 11 of the Safety, Health and Welfare at Work Act 2005, which concerns situations of emergency and serious and imminent danger.123 4.70
In summary, therefore, the Commission recommends
that the proposed legislation should apply where assistance, advice or care
(including first aid and the use of defibrillators) is given by a Good
Samaritan in the event of an accident or situation of emergency and serious
and imminent danger. The Commission also recommends that the proposed
legislation should apply where assistance, advice or care (including first
aid and the use of defibrillators) is given by a volunteer in any setting. 4.71
The Commission recommends that the proposed
legislation should apply where assistance, advice or care (including first
aid and the use of defibrillators) is given by a Good Samaritan in the event
of an accident or situation of emergency and serious and imminent danger. The
Commission also recommends that the proposed legislation should apply where
assistance, advice or care (including first aid and the use of
defibrillators) is given by a volunteer in any setting. (6)
Good Faith 4.72
The Commission notes that many Good Samaritan
statutes require that the volunteer act “in good faith” in order to be
eligible for immunity.124 4.73
Courts have encountered much difficulty in
interpreting this term.125 Henry has argued that what is meant by
“good faith” in statutory immunities depends on the statutory provision under
consideration and the circumstances of the case.126 He asserts
that there are two possible tests for “good faith”: the first is subjective,
i.e. based upon what an individual knew or thought; the second is objective,
which requires a consideration of whether the person seeking to rely on the
section acted with the sort of diligence and caution that could have been expected of a reasonable person
in the circumstances. The |
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123
Section 11 of the 2005 Act derives from the requirements
of the EC “Framework” Directive on safety and health at work, 89/391/EEC. 124
Ala Code s-6-5-332 states “gratuitously and in good
faith”. 125
Central Estates (Belgravia) Ltd. v. Woolgar [1971]
3 All ER 647 at 650. 126
Henry, „Statutory immunities: when is good faith honest
ineptitude?‟ (2000) Australian Journal of
Emergency Management, Spring, p.10. Loh “Legal risks of volunteer firefighters
– how real are they?” (2008) Australian Journal of Emergency Management, May. See Bankstown City Council v. Alamdo
Holdings Pty Limited [2005] HCA 46. |
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111 |
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Commission
considers that the issue of good faith might come to bear when analysing the
standard of care applicable to the individual. 4.74
Henry notes that numerous cases demonstrate a
subjective approach to assessing good faith.127 He argues that in
the context of a statute aimed to protect and encourage persons who come
forward to assist in a medical emergency, the subjective test of good faith
will be the relevant one. Henry points out that this is consistent with the
approach taken in California where it was said, in relation to the Good
Samaritan statute in that state, that to act in good faith was to act with
“that state of mind denoting honesty of purpose, freedom from intention to
defraud, and, generally speaking, means being faithful to one‟s duty or
obligation.”128 In the Australian High Court, McTiernan J, when
considering a statutory immunity that applied to the New South Wales Fire
Brigades, said that the concept of “good faith” referred to an act that was
done “without any indirect or improper motive.”129 It would
appear, therefore, that a person who is providing emergency assistance acts
in good faith whenever their honest intention is to assist the person
concerned. More recently, the Federal Court of Australia has emphasised the
notion of honesty, although this is said to require more than honest
competence. In Mid Density Developments Pty Ltd v Rockdale Municipal
Council,130 the court considered that “good faith” “… in some
contexts identifies an actual state of mind, irrespective of the quality or
character of its inducing causes; something will be done or omitted in good
faith if the party was honest; albeit careless… Abstinence from inquiry which
amounts to a wilful shutting of the eyes may be a circumstance from which
dishonesty may be inferred … On the other hand, „good faith‟ may
require the exercise of caution and
diligence to be expected of an honest person of ordinary prudence.”131 4.75
In the Commission‟s view, this means that
the court will consider what a person‟s state of mind actually was, as
well as how a reasonable person with the same level of experience and
expertise would have conducted themselves in the same circumstances, in
determining whether the act or omission
was done in good faith. In this regard, Loh notes that, whatever the |
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127
Henry, „Statutory
immunities: when is good faith honest ineptitude?‟
(2000) Australian Journal of Emergency Management, Spring, p.10, 11. 128
Lowry v Mayo Newhall Hospital 64 ALR 4th 1191,
1196 (Cal 1986). 129
Board of Fire Commissioners v Ardouin (1961) 109
CLR 105, 115. 130
(1993) 116 ALR 460. 131
Ibid at 468. |
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112 |
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precise
definition of “good faith”, it is generally accepted that what is required of
“good faith” is no different nor less than what is required in common law for
liability, as outlined in Chapter 3, to behave as a reasonable person would.132
The Commission agrees with this view. 4.76
In these circumstances, the Commission considers
that there is no need for the proposed legislation to set out that the
assistance or other activities must be done in “good faith” as this is
already dealt with by setting out the standard of care applicable to the Good
Samaritan or volunteer. (7)
Voluntarily and
without reasonable Expectation
of Compensation, Payment or Reward 4.77
The Commission observes that terms such as
“gratuitously”, “without compensation or expectation of compensation” and
“without remuneration or expectation of remuneration” appear regularly in the
statutes of other jurisdictions. The implication is that the individual
seeking protection under the particular statute must not have received anything
for his or her assistance or services. Furthermore he or she must not have
engaged in the conduct with the expectation
of receiving any benefit. Professionals such as
professional rescuers, ambulance officers and medical teams who are acting in
their professional capacity are, thereby, excluded from the ambit of the
statute. Taking into account that the proposed legislation is to encourage
persons who would not otherwise be bound to do so to intervene, and that a
professional is reimbursed for any risk that he or she assumes, the
Commission considers that this approach is also appropriate in Ireland. 4.78
The Commission notes that the term “voluntarily”
is also evident in many of the statutes abroad. The term “voluntarily” would
seem to exclude those acts performed in consequence of contractual
obligations, statutory duties or perhaps
even special relationships. As the purpose of the
proposed legislation is to encourage people who are not otherwise obliged to
act, the Commission considers that it need not and should not apply to
persons who already have a legal obligation to act. A person who acts, when
legally obliged to do so, is not acting voluntarily and, therefore, should
not be protected by this sort of legislation.133 In particular,
the Commission notes that a person acting in the course of employment may not
accurately be described as acting voluntarily. As opposed to acting freely,
such a person acts because he or she is contract-bound to do so.
Consequently, it is only fair that such a person should fall outside the
remit of a statute intended to protect those who volunteer |
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132
Loh “Legal risks of
volunteer firefighters – how real are they?” The Australian Journal of
Emergency Management, Vol 23 2 May 2008. 133
See Velazquez v Jiminez, 798 A.2d 51, 64 (NJ,
2000). |
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113 |
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their
services. To ensure that the definition includes important activities that
are organised by State bodies, the Commission has also concluded that
volunteer activity should also include those who are volunteer members of the
civil defence, within the meaning of the Civil Defence Act 2002. The
2002 Act established the Civil Defence Board, and which plays a significant
role in the organisation of the State‟s national emergency plans.134
The Commission recommends, therefore, that the proposed legislation include
the requirement that individuals act “voluntarily and without expectation of
payment or other reward,” including volunteer members of the civil defence,
within the meaning of the Civil Defence Act 2002. 4.79
The Commission recommends that the proposed
legislation include the requirement that individuals act “voluntarily and
without expectation of payment or other reward,” including volunteer members
of the civil defence, within the meaning of the Civil Defence Act 2002. (8)
Standard of care for individuals: gross negligence 4.80
An important question addressed by Good Samaritan
legislation in other States is whether it is appropriate to apply the
ordinary standard of care in negligence to a person who, in the absence of a
legal duty, decides to intervene to assist another. While some jurisdictions
answer in the affirmative, the vast majority provide immunity from liability
to such persons, except where there is evidence of gross negligence. 4.81
In respect of individual Good Samaritans and
volunteers, the Commission considers that the imposition of a gross
negligence test succeeds in striking a balance between the policy
of encouraging altruistic behaviour with the
public‟s right to seek redress. With regard
to encouraging altruistic behaviour, the leniency of the gross negligence
test may be understood as a reward for good behaviour. Furthermore, it
militates against the deterrent effect that the fear of litigation may cause.
The Commission is of the view that this is an appropriate approach regarding
Good Samaritans and individual volunteers, whether formal or informal, taking
into account the benefits that flow from their activities and the sacrifices
that they have made, from their own pocket and time, in conferring them. The
application of the ordinary negligence test, on the other hand, would be to
impose too heavy a burden that would threaten the continuation of such
benevolent activities. |
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134
See the Framework
for Major Emergency Management (2006), PRN A6/1509, September
2006. The Framework was developed jointly by three Government Departments:
Environment. Heritage and Local Government; Health and Children; and Justice
Equality and Law Reform. It is also available on the websites of the three
Departments. See Byrne, Safety, Health and Welfare at Work Law in Ireland 2nd
ed (Nifast, 2008), p.548. |
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114 |
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4.82
In the Consultation Paper135 the
Commission provisionally recommended that the gross negligence test set out
by the Court of Criminal Appeal in The People (Attorney General) v
Dunleavy136 was an appropriate template for the
proposed legislation. In that case, it was decided that, in the context of
gross negligence manslaughter, gross negligence is to be determined by the
degree of departure from the expected standard and that the test is
objective. The individual need not, therefore, be actually aware that he or
she had taken an unjustifiable risk. The task of distinguishing whether the
departure from the expected standard of care constitutes ordinary negligence
or gross negligence is for the court. In the Commission‟s Report on
Homicide: Murder and Involuntary Manslaughter137 the key elements
of the Dunleavy test of gross negligence, with a variation to take
account of the capacity of the individual to advert to risk or to attain the
expected standard, were set out: a)
The individual was, by ordinary standards, negligent; b)
The negligence caused the death of
the victim; c)
The negligence was of a very high
degree; d) The negligence
involved a high degree of risk or likelihood of substantial personal injury
to others; and e) The accused was
capable of appreciating the risk or meeting the expected standard at the time of the alleged gross negligence. 4.83
The Commission notes that the Dunleavy case
involved the application of the criminal standard of gross negligence. As has
been pointed out, however, it is suitable to apply that concept in the civil
context of the tort of negligence where it is clear that it is being used to
describe a high degree of careless conduct which, although not intended, was
something which ought to have been foreseen.138 Subject to the required
changes to apply the test in the context of civil liability in negligence,
therefore, the Commission confirms the thrust of the approach taken in the
Consultation Paper. 4.84
The Commission therefore recommends that the
proposed legislation should introduce a gross negligence threshold in respect
of the activities undertaken by individual Good Samaritans and volunteers.
The Commission also recommends that the test for gross negligence should be
that: |
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135
LRC CP 47-2007 at paragraph 4.58. 136
[1948] IR 95, at 102. 137
LRC 87-2008, at paragraph 5.69. 138
See Charlesworth
& Percy on Negligence 11th ed (Thomson Sweet &
Maxwell, 2006), paragraphs 1.15-1.17. |
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115 |
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a) The individual was,
by ordinary standards, negligent; b) The negligence
caused the injury at issue; c) The negligence was
of a very high degree; d)
The negligence involved a high
degree of risk or likelihood of substantial personal injury to others;
and e)
The individual was capable of
appreciating the risk or meeting the expected standard at the time of
the alleged gross negligence. 4.85
The Commission recommends that the proposed
legislation should introduce a gross negligence threshold in respect of the
activities undertaken by individual Good Samaritans and volunteers. The
Commission also recommends that the test for gross negligence should be that: a) The individual was,
by ordinary standards, negligent; b) The negligence
caused the injury at issue; c) The negligence was
of a very high degree; d)
The negligence involved a high
degree of risk or likelihood of substantial personal injury to others;
and e)
The individual was capable of appreciating
the risk or meeting the expected standard at the time of the alleged
gross negligence. (9)
Standard of care for organisations 4.86
As was noted in the Consultation Paper,139 the Commission draws from the experience
of comparable common law jurisdictions in reaching its conclusion that the
gross negligence test should not be extended to voluntary organisations.
Taking into account the structure of voluntary organisations, the control
exercised, the responsibility assumed, the statutory duties to which they are
subjected (in particular under legislation such as the Safety, Health and
Welfare at Work Act 2005) and the various protections available to them,
the Commission considers it appropriate that voluntary organisations should
be held accountable for ordinary negligence, regardless of whether they are
directly or vicariously responsible. The Commission also considers, however,
that the proposed legislation must, in some way, acknowledge the significant contribution that voluntary organisations make
to society. In this context, therefore, the Commission
has also concluded that the proposed legislation should, in addition to
requiring volunteer organisations or undertakings to conform to the ordinary
standard of reasonable care in negligence, stipulate that account must be
taken of the benefits which have accrued to society because of |
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139
LRC CP 47-2007 at paragraph 4.60. |
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116 |
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the
organisation‟s work in determining whether it is just and reasonable to
impose a duty of care.140 4.87
The Commission recommends that the proposed
legislation should require volunteer organisations or undertakings to conform
to the ordinary standard of reasonable care in negligence. The Commission
also recommends that the proposed legislation should provide that account be
taken of the benefits which have accrued to society because of the
organisation’s work in determining whether it is just and reasonable to
impose a duty of care. (10)
Effect on other duties 4.88
To avoid any doubt, the Commission considers that
the proposed legislation should provide that the duties proposed should be in
place of any common law (judge-made) duties that would otherwise apply to
Good Samaritans, volunteers and volunteer organisations or undertakings. This
is consistent with the approach taken in, for example, section 2 of the Occupiers
Liability Act 1995 which made clear that the statutory duties contained
in the 1995 Act would not create a parallel set of statutory rules with which
the pre-1995 common law rules might continue to compete. 4.89
At the same time, the Commission is conscious
that the proposed legislation should not override statutory duties that have
been put in place by the Oireachtas, including the Occupiers Liability Act
1995 itself and other legislation, such as the Safety, Health and
Welfare at Work Act 2005 which has already been referred to in this
Report. 4.90
On that basis, therefore, the Commission
recommends that the proposed legislation should provide that the duties of
Good Samaritans, volunteers and volunteer organisations or undertakings
contained in it are in place of any common law duties that would otherwise
apply, but that the legislation does not affect any civil liability that
arises as a result of any other statutory duty or duties. 4.91
The Commission recommends that the proposed
legislation should provide that the duties of Good Samaritans, volunteers and
volunteer organisations or undertakings
contained in it are in place of any common law |
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140
In O’Keeffe v Hickey and the Minister for Education
and Science [2008] IESC 72, Supreme
Court, 19 December 2008, Hardiman J expressed some concern on the impact of
the extension of the principles of vicarious liability to a volunteer
organisation, in this case a school. The Commission notes the specific
circumstances of that case (which involved child abuse) and considers that
its recommendations in this Report, with the proviso that the social utility
of the activities involved be taken into account, will avoid any unnecessary
burden on volunteer organisations. |
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117 |
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duties that would otherwise apply, but that the legislation does not affect
any civil liability that arises as a
result of any other statutory duty or duties. |
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118 |
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CHAPTER 5
SUMMARY OF RECOMMENDATIONS |
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The recommendations contained in
this Report may be summarised as follows: 5.01
The Commission recommends that there should be no
reform of the law to impose a duty on citizens in general, or any particular
group of citizens, to intervene for the purpose of assisting an injured
person or a person who is at risk of such an injury. [Paragraph 2.82] 5.02
The Commission recommends that there should not
be reform of the law to impose a duty to carry out an “easy rescue.”
[Paragraph 2.89] 5.03
The Commission recommends that the legal duty of
care of Good Samaritans, voluntary rescuers and voluntary service providers
should be set out in legislation. The Commission also recommends that the
legislation should take account of the high social utility of Good Samaritan
acts and volunteering activities, particularly in light of the increased
awareness of sudden cardiac death and the use of Automated External
Defibrillators (AEDs). [Paragraph 3.107] 5.04
The Commission recommends the enactment of a
single piece of legislation that deals with the civil liability of both Good
Samaritans and volunteers. [Paragraph 4.56] 5.05
The Commission recommends that the proposed
legislation should accommodate: the range of individuals that may constitute
Good Samaritans and volunteers; the various types of intervention that might
be made; and the different situations in which those interventions might take
place. [Paragraph 4.58] 5.06
The Commission recommends that the proposed
legislation should distinguish between, on the one hand, the liability of
individuals, and, on the other, the liability of organisations, whether
unincorporated or incorporated, which are not formed for profit. [Paragraph
4.62] 5.07
The Commission recommends that the proposed
legislation should apply to conduct that involves those who render any
assistance, advice or care, including first-aid and the use of automated
external defibrillators (AEDs). The Commission also recommends that the
proposed legislation should apply to activities that are for the benefit of
the community, including charitable activities within the meaning of section
3(11) of the Charities Act 2009. [Paragraph 4.67] 5.08
The Commission recommends that the proposed
legislation should apply where
assistance, advice or care (including first aid and the use of |
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119 |
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|
defibrillators)
is given by a Good Samaritan in the event of an accident or situation of
emergency and serious and imminent danger. The Commission also recommends
that the proposed legislation should apply where assistance, advice or care
(including first aid and the use of defibrillators) is given by a volunteer
in any setting. [Paragraph 4.71] 5.09
The Commission recommends that the proposed
legislation include the requirement that individuals act “voluntarily and
without expectation of payment or other reward,” including volunteer members
of the civil defence, within the meaning of the Civil Defence Act 2002. [Paragraph
4.79] 5.10
The Commission recommends that the proposed
legislation should introduce a gross negligence threshold in respect of the
activities undertaken by individual Good Samaritans and volunteers. The
Commission also recommends that the test for gross negligence should be that: a)
The individual was, by ordinary
standards, negligent; b)
The negligence caused the injury
at issue; c)
The negligence was of a very high
degree; d)
The negligence involved a high degree of risk or likelihood of
substantial personal injury to others; and e)
The individual was capable of appreciating the risk or meeting the
expected standard at the time of the alleged gross negligence. [Paragraph
4.85] 5.11
The Commission recommends that the proposed legislation should require
volunteer organisations or undertakings to conform to the ordinary standard of reasonable care in negligence. The
Commission also recommends that the proposed legislation should
provide that account be taken of the benefits
which have accrued to society because of the organisation‟s work in determining
whether it is just and reasonable to impose a duty of care. [Paragraph 4.87] 5.12
The Commission recommends that the proposed
legislation should provide that the duties of Good Samaritans, volunteers and
volunteer organisations or undertakings contained in it are in place of any
common law duties that would otherwise apply, but that the legislation does
not affect any civil liability that arises as a result of any other statutory
duty or duties. [Paragraph 4.91] |
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120 |
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APPENDIX
DRAFT CIVIL LIABILITY (GOOD SAMARITANS AND VOLUNTEERS) BILL 2009 |
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|
121 |
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|
ACTS
REFERRED TO Charities Act 2009
2009, No.6 Civil Defence Act 2002
2002, No.16 |
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122 |
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DRAFT
CIVIL
LIABILITY
(GOOD
SAMARITANS
AND VOLUNTEERS) BILL 2009 |
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|
ARRANGEMENT OF SECTIONS 1. Short title and
commencement 2. Definitions 3. Civil liability of
good samaritans 4. Civil liability of
volunteers 5. Civil liability of
volunteer undertakings 6. Effect on common
law and statutory duties |
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123 |
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|
DRAFT
CIVIL
LIABILITY
(GOOD
SAMARITANS
AND VOLUNTEERS) BILL 2009 |
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|
BILL Entitled AN ACT TO PROVIDE FOR THE EXTENT
OF THE CIVIL LIABILITY OF GOOD
SAMARITANS,
VOLUNTEERS
AND
VOLUNTEER UNDERTAKINGS BE IT ENACTED BY THE OIREACHTAS AS
FOLLOWS: |
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|
Short title and commencement 1.—(1) This Act may be cited as the Civil Liability
(Good Samaritans and Volunteers) Act 2009. (2) This
Act comes into operation on such day or days as the Minister for Justice,
Equality and Law Reform may appoint by order or orders either generally or
with reference to any particular purpose or provision, and different days may
be so appointed for different purposes or provisions. |
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|
Definitions 2.—In
this Act, unless the context otherwise requires— “assistance,
advice or care” includes administering first-aid and, or alternatively,
using an automated external defibrillator, “damage” includes death of or
personal injury to any person; “gross negligence” means— (a) The
individual was, by ordinary standards, negligent, (b) The
negligence caused the injury at issue, (c) The
negligence was of a very high degree, (d) The negligence involved a high degree of risk or
likelihood of substantial personal injury to
others, and |
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124 |
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|
(e) The
individual was capable of appreciating the risk or meeting the expected
standard at the time of the alleged gross negligence; |
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|
“personal injury” includes any
injury or illness; “purpose
that is of benefit to the community” includes the instances referred to in
section 3(11) of the Charities Act 2009; “volunteer undertaking” means an unincorporated or
incorporated body formed for the purpose of giving assistance, advice or care
to individuals and that is of benefit to the community and is not formed for
profit. Explanatory note This
section implements the recommendations in paragraphs 4.62 (definition of
“volunteer undertaking”), 4.67 (definitions of “assistance, advice or care”
and “purpose that is of benefit to the community”) and 4.85 (definition of
“gross negligence”). |
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Civil liability of good samaritans 3.—(1)
A good samaritan shall not be held liable in any civil proceedings for damage
caused to another person in the circumstances referred to in subsection
(2), unless the damage is caused by the gross negligence of the good
samaritan. (2) The
circumstances are that the good samaritan provides assistance, advice or care
to another person who has been injured in an accident or in an emergency or
other circumstance of serious and imminent danger. (3)
In this section and Act a “good samaritan” is an individual who provides
assistance, advice or care in the circumstances referred to in subsection
(2) without any expectation of payment or other financial reward. Explanatory note This
section implements the recommendations in paragraphs 4.71 (scope of
application to Good Samaritans), 4.79 (no expectation of payment) and 4.85
(“gross negligence” test). |
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Civil liability of volunteers 4.—(1)
A volunteer shall not be held liable in any civil proceedings for damage
caused to another person in the circumstances referred to in subsection
(2), unless the damage is caused by the gross negligence of the
volunteer. |
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(2) The circumstances are
that the volunteer— (a) agrees
to provide his or her services with a view to giving assistance, advice or
care to another person, and (b) does
so for a purpose that is of benefit to the community. (3) In
this section and Act a “volunteer” is an individual who, without any
expectation of payment or other financial reward, agrees to provide
assistance, advice or care in the circumstances referred to in subsection
(2), and includes an individual who does so under the auspices of a
volunteer undertaking (including as a volunteer member of the civil defence
within the meaning of the Civil Defence Act 2002). Explanatory note This
section implements the recommendations in paragraphs 4.71 (scope of
application to volunteers), 4.79 (no expectation of payment, and inclusion of
civil defence volunteer) and 4.85 (“gross negligence” test). |
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Civil liability of volunteer
undertakings 5.—(1)
Subject to subsection (4), a volunteer undertaking is liable in civil
proceedings for damage caused to a natural person in the circumstances
referred to in subsection (2) where the damage is caused by the
failure of the volunteer undertaking to take such care as is reasonable to expect. (2) The circumstances are
that the volunteer undertaking— (a)
is engaged in activities that involve giving assistance, advice or care to
individuals, and (b) is
for a purpose that is of benefit to the community. (3)
Notwithstanding section 4, a volunteer undertaking is liable for
the negligence of a volunteer. (4) A
volunteer undertaking shall not be held liable in civil proceedings under
this section where, having regard to the benefit to the community of its
activities, it would not be just and reasonable to impose liability. |
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Explanatory note This section implements the
recommendations in paragraph 4.87 (scope of liability of volunteer
undertaking). |
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Effect on common law and statutory
duties 6.—(1)
Subject to subsection (3), any duty or liability provided for by this
Act is in place of any common law duty or liability that applied to a good
samaritan, a volunteer or a volunteer undertaking prior to the coming into
force of this Act. (2)
This Act does not apply to a cause of action which accrued before the
commencement of this Act. (3) Nothing
in this Act shall be construed as affecting any civil liability that arises
as a result of any statutory duty or duties (other than the duties in this
Act). Explanatory note This
section implements the recommendations in paragraph 4.91 (application to
other duties). |
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depen ut pri orpor (pre |
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€15 |
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ADDReSS
TeLePhone
FAx
emAIL
WebSITe 35-39 Shelbourne Road
Dublin 4 Ireland +353 1 6377600
+353 1 6377601
info@lawreform.ie www.lawreform.ie |
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The Law Reform
Commission is a statutory body established by the Law Reform Commission Act
1975 |
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