Consultation Paper
Civil liability of good samaritans
and volunteers
(LRC CP 47 - 2007)
IRELAND
The
Law Reform Commission
35-39
Shelbourne Road, Ballsbridge, Dublin 4
© Copyright
The Law Reform Commission 2007
First Published November 2007
THE LAW REFORM COMMISSION
Background
The Law Reform Commission is an independent statutory body
whose main aim is to keep the law under review and to make practical proposals
for its reform. It was established on 20 October 1975, pursuant to
section 3 of the Law Reform Commission Act 1975.
The Commission’s Second Programme for Law Reform, prepared
in consultation with the Attorney General, was approved by the Government and
copies were laid before both Houses of the Oireachtas in December 2000.
The Commission also works on matters which are referred to it on occasion by
the Attorney General under the terms of the Act.
To date the Commission has published 84 Reports containing
proposals for reform of the law; eleven Working Papers; 46 Consultation Papers;
a number of specialised Papers for limited circulation; An Examination of the
Law of Bail; and 27 Annual Reports in accordance with section 6 of the 1975
Act. A full list of its publications is contained on the Commission’s
website at www.lawreform.ie.
The Statute Law Restatement Act 2002 provides for
the administrative consolidation of legislation, certified by the Attorney
General. At the Attorney’s request, and following a Government decision
in May 2006, the Commission agreed to take over responsibility for this
function from the Office of the Attorney General.
Subsequently, in December 2006 the Commission agreed to the
Attorney General’s additional request for the Commission to assume
responsibility in 2007 for the maintenance of the Chronological Tables of the
Statutes.
Membership
The Law Reform Commission consists of a President, one
full-time Commissioner and three part-time Commissioners.
The Commissioners at present are:
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President: |
The Hon Mrs Justice Catherine McGuinness, former Judge of the Supreme Court |
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Full-time Commissioner: |
Patricia T Rickard-Clarke, Solicitor |
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Part-time Commissioner: |
Professor Finbarr McAuley |
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Marian Shanley, Solicitor |
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Part-time Commissioner: |
Donal O’Donnell, Senior Counsel |
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Secretary/Head of Administration: |
John Quirke |
Law Reform Research
Staff
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Director of Research: |
Raymond Byrne BCL, LLM (NUI), Barrister-at-Law |
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Legal Researchers: |
Áine Clancy BCL, LLM (NUI) |
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Kate Dineen LLB, LLM (Cantab) |
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Philip Flaherty BCL, LLM (NUI), Diop sa Gh (NUI) |
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Eleanor Leane LLB, LLM (NUI) |
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Margaret Maguire LLB, LLM (NUI) |
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Richard McNamara BCL, LLM (NUI) |
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Jane Mulcahy BCL (Law and German), LLM (NUI) |
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Gemma Ní Chaoimh BCL, LLM (NUI) |
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Verona Ní Dhrisceoil BCL (Dlí agus Gaeilge), LLM (NUI) |
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Charles O’ Mahony BA, LLB (NUI), LLM (Lond), LLM (NUI) |
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Nicola White LLB, LLM (Dub) Attorney-at-Law (NY) |
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Joanne Williams LLB, LLM (NUI), Barrister-at-Law |
Statute Law
Restatement
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Project Manager for Restatement: |
Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor
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Legal Researchers: |
John P. Byrne BCL, LLM (NUI), Barrister-at-Law |
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John Kenny LLB, LLM (Cape Town), Barrister-at-law |
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Eimear Long LLB, Barrister-at-Law |
Chronological Tables
of the Statutes
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Project Manager for Chronological Tables: |
Deirdre Ahern LLB, LLM (Cantab), Dip E-Commerce (Law Society), Solicitor |
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Legal Researchers:
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Eóin Mac Domhnaill BCL (Dlí agus Gaeilge), LLM (Dub) |
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Eóin McManus BA, LLB (NUI), LLM (Lond) |
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Tina O’ Reilly BCL (Law and German), LLM (NUI) |
Administration Staff
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Project Manager: |
Pearse Rayel
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Higher Executive Officer: |
Alan Heade
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Executive Officers: |
Emma Kenny Denis McKenna Darina Moran Peter Trainor
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Legal Information Manager: |
Conor Kennedy BA, H Dip LIS
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Cataloguer:
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Eithne Boland BA (Hons), HDip Ed, HDip LIS
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Information Technology Officer:
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Liam Dargan |
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Clerical Officers: |
Ann Browne Ann Byrne Sabrina Kelly
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Principal Legal Researcher on this Consultation
Paper
Tara Murphy BCL
(Law with French Law), LLM (Essex)
Contact Details
Further information can be obtained from:
The
Secretary/Head of Administration
The Law Reform
Commission
35-39 Shelbourne
Road Ballsbridge Dublin 4
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+353 1 637 7600 |
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+353 1 637 7601 |
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E: |
info@lawreform.ie |
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W: |
www.lawreform.ie |
ACKNOWLEDGEMENTS
The Commission would like to thank in particular the
following people and organisations for their assistance in the preparation of
this Consultation Paper:
Professor William Binchy, Regius Professor of Laws, Trinity
College Dublin
Ms. Emer Burke, Lifeline Coordinator, Croí, University
Hospital Galway
Ms. Mary Davis, Chairperson of Taskforce on Active
Citzenship; CEO of Special Olympics
Ms. Catherine Eddery, Taskforce on Active Citizenship
Mr. Neil Johnson, CEO Croi, University Hospital Galway
Mr. Liam McCabe, Chairperson, Irish Mountain Rescue
Association
Mr. Paul Whiting, Development Officer, Irish Mountain Rescue
Association
Full responsibility for the content of this publication,
however, lies with the Commission.
Table of
Legislation
xi
Table of
Cases
xv
A Request by
the Attorney General
B The Good
Samaritan Bill 2005
C Outline of
this Consultation Paper
C Comparison
between the Good Samaritan Bill 2005 and the Attorney General’s Request
(4) The Recipient of the
Service
(6) Circumstances: Accident
or Emergency
D Categories
of Person specified in the Attorney General’s Request
(3) Voluntary Service
Providers
(4) The Fourth Paragraph of
the
Attorney
General’s Request
B Common Law
Duty to Intervene
D Imposition
of a Duty to Intervene
(3) Distinction between
Misfeasance and Nonfeasance
CHAPTER 4 Good Samaritan statute
B Good
Samaritan Statutes in Other Jurisdictions
C A Gross
Negligence Standard of Liability
CHAPTER 5 Summary of
Provisional Recommendations
|
RSQ c C-20 |
Can |
|
|
Adventure Activities Standards Authority Act 2001 |
No 34/2001 |
Irl |
|
Alabama Code 1975 |
|
USA |
|
Alaska Statute (Michie 2002) |
|
USA |
|
Arizona Revised Statutes 2006 |
|
USA |
|
California Government Code |
|
USA |
|
Charities Bill 2007 |
Bill No 31/2007 |
Irl |
|
Civil Code of Quebec |
RSQ chapter C-1991 |
Can |
|
Civil Law (Wrongs) Act 2002 |
|
Aus |
|
Civil Law (Wrongs) Act 2002 |
A2002-40 (CT) |
Aus |
|
Civil Liability (Good Samaritan) Amendment Bill 2007 |
(Q) |
Aus |
|
Civil Liability Act 1936 |
(SA) |
Aus |
|
Civil Liability Act 1961 |
No 41/1961 |
Irl |
|
Civil Liability Act 2002 |
No 22/2002 (NSW) |
Aus |
|
Civil Liability Act 2002 |
(WA) |
Aus |
|
Civil Liability Act 2003 |
No 16/2003 (Q) |
Aus |
|
Civil Liability Amendment Act 2003 |
(WA) |
Aus |
|
Colorado Revised Statutes 2007 |
|
USA |
|
Commonwealth Volunteers Protection Act 2003 |
No 2/2003 |
Aus |
|
Compensation Act 2006 |
|
UK |
|
Connecticut General Statutes 2007 |
|
USA |
|
Courts and Judicial Proceedings 2008 |
|
USA |
|
Defence Act 1954 |
No 18/1954 |
Irl |
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Delaware Code 1953 |
|
USA |
|
Dentists Act 1985 |
No 9/1985 |
Irl |
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Emergency Medical Aid Act 1979 |
RSS 1978, c E-8 |
Can |
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Emergency Medical Aid Act 1997 |
RSNL 1990, c E-9 |
Can |
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Emergency Medical Aid Act 2000 |
RSA 2000, c E-7 |
Can |
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Federal Tort Claims Act 1946 |
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USA |
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Fire and Emergency Services Legislation Act 2002 |
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Aus |
|
Fire Services Acts 1981 |
No 30/1981 |
Irl |
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French Civil Code |
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FR |
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Garda Síochána Act 2005 |
No 20/2005 |
Irl |
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Georgia Code 2005 |
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USA |
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German Civil Code |
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Ger |
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German Criminal Code |
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Ger |
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Good Samaritan Act 1996 |
RSBC 1996 |
Can |
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Good Samaritan Act 2001 |
SO 2001, c 2 |
Can |
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Good Samaritan Bill 2005 |
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Irl |
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Health and Social Care Professions Act 2005 |
No 27/2005 |
Irl |
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Highway Safety Code of Quebec |
RSQ c C-24.2 |
Can |
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Illinois Compiled Statutes |
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USA |
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Kansas Statutes 2005 |
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USA |
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Law Reform (Miscellaneous Provisions) Act 1995 |
No 35/1995 |
Aus |
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Licensing of Indoor Events Act 2003 |
No 15/2003 |
Irl |
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Massachusetts General Laws 2007 |
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USA |
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Medical Act |
CCSM c M90 |
Can |
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Medical Practitioners Act 2007 |
No 25/2007 |
Irl |
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Minnesota Statutes 2006 |
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USA |
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Minnesota Statutes 2007 |
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USA |
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Mississippi Code 2005 |
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USA |
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Model State Emergency Health Powers Act 2001 |
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USA |
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New Jersey Statutes 2007 |
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USA |
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New York Unconsolidated Laws (McKinney 2001) |
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USA |
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Nonprofit Corporations Amendment Act 2003 |
(SK) |
Can |
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Nurses Act 1985 |
No 18/1985 |
Irl |
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Occupiers' Liability Act 1995 |
No 10/1995 |
Irl |
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Oklahoma Statutes 2006 |
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USA |
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Ontario Highway Traffic Act |
RSO 1990 cH8 |
Can |
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Personal Injuries (Liabilities and Damages) Act 2007 |
(NT) |
Aus |
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Pharmacy Act 2007 |
No 20/2007 |
Irl |
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Planning and Development Act 2000 |
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Irl |
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Quebec Charter of Human Rights and Freedoms 1975 |
RSQ c C-12 |
Can |
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Road Traffic Act 1961 |
No 24/1961 |
Irl |
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Road Traffic Acts 1933-2004 |
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Irl |
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Safety, Health and Welfare at Work (General Application) Regulations |
SI No 299 of 2007 |
Irl |
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Safety, Health and Welfare at Work (General Application) Regulations 1993 |
SI 44 of 1993 |
Irl |
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Safety, Health and Welfare at Work Act 2005 |
No 10/2005 |
Irl |
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South Dakota Codified Laws 2006 |
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USA |
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Utah Code 2007 |
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USA |
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Voluntary Aid in Emergency Act 1973 |
(Q) |
Aus |
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Volunteer (Protection from Liability) Act 2002 |
(WA) |
Aus |
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Volunteer Protection Act 1997 |
42 USC 14501 |
USA |
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Volunteer Protection Act 2002 |
(SA) |
Aus |
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Volunteer Protection Act 2002 |
SNS 2002, c 14 |
Can |
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Volunteer Services Act (Good Samaritan) 1989 |
RS, c 497, s 1 |
Can |
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Volunteers Liability Act 1988 |
RSPEI 1988, c V-5 |
Can |
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Wrongs Act 1958 |
No 6420/1958 (V) |
Aus |
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Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 |
No 49/2002 (V) |
Aus |
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Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 |
No 49/2002 (V) |
Aus |
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Alexandrou v Oxford |
ENG |
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Anns v Merton Borough Council |
ENG |
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Barnett v Chelsea & Kensington Hospital Management Committee |
[1969] 1 QB 428 |
ENG |
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Boccasile v Cajun Music Ltd |
694 A2d (Rhode Island 1997) |
USA |
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Breslin v Brennan |
[1937] IR 350 |
IRL |
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Brogan v Bennett |
[1955] IR 119 |
IRL |
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Buck v Greyhound Lines Inc |
783 P2d 437 (Nev 1989) |
USA |
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Burke v John Paul & Co Ltd |
[1967] IR 227 |
IRL |
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Byrne v McDonald |
Supreme Court 7 February 1957 |
IRL |
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Cahill v Kenneally |
[1955-1956] Ir Jur 15 |
IRL |
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Caparo Industries plc v Dickman |
ENG |
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Capital and Counties plc v Hampshire County Council |
ENG |
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Cattley v St John's Ambulance Brigade |
QBD 25 November 1988 |
ENG |
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Commissioners for Special Purposes of Income Tax v Pemsel |
ENG |
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Condon v Basi |
ENG |
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Connolly v South of Ireland Asphalt Co Ltd |
[1977] IR 99 |
IRL |
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Conole v Redbank Oyster Co Ltd |
[1976] IR 191 |
IRL |
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Convery v Dublin County Council |
[1996] 3 IR 153 |
IRL |
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Cope v Sharpe (No 2) |
[1912] 1 KB 496 |
ENG |
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Curley v Mannion |
[1965] IR 543 |
IRL |
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Dahl v Turner |
458 P2d 816 (NM Ct App 1969) |
USA |
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Depuis v Haulbowline Industries Ltd |
Supreme Court 14 February 1962 |
IRL |
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Donoghue v Stevenson |
ENG |
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Doran v Dublin Plant Hire Ltd |
[1990] 1 IR 488 |
IRL |
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Dunne v National Maternity Hospital |
[1989] IR 91 |
IRL |
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East Suffolk Catchment Board v Kent |
[1940] UKHL 3; [1940] 4 All ER 527 |
ENG |
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Esso Petroleum v Southport Corporation |
[1956] AC 218 |
ENG |
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Fletcher v Commissioners for Public Works |
IRL |
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Flynn v United States |
[1990] USCA10 191; 902 F2d 1524 (10th Cir 1990) |
USA |
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Glencar Exploration plc v Mayo County Council |
IRL |
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Gough v Thorne |
ENG |
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Haynes v Harwood |
[1935] 1 KB 146 |
ENG |
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Health Board v BC |
High Court 19 January 1994 |
IRL |
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Hedley Byrne & Co Ltd v Heller & Partners Ltd |
[1964] AC 464 |
ENG |
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Henderson v Merrett Syndicates |
ENG |
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Hogg v Keane |
[1956] IR 155 |
IRL |
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Home Office v Dorset Yacht Co Ltd |
ENG |
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Howell v City Towing Associates Inc |
717 SW2d 729 (Tex Ct App 1986) |
USA |
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Johnson v Thompson Motors of Wykoff Inc |
No C1-99-666 2000 WL 136076 (Minn Ct App 2 February 2000) |
USA |
|
Kent v Griffiths |
ENG |
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Kirby v Burke |
[1944] IR 207 |
IRL |
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Leigh v Gladstone |
(1909) 26 Times LR 139 |
ENG |
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London Borough of Southwark v Williams |
[1971] Ch 734 |
ENG |
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Lowns v Woods |
(1996) Aust Torts Reports 81-376 (NSW CA) |
AUS |
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Martin v Peterborough City Council |
ENG |
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McDowell v Gillie |
626 NW2d 666 (ND 2001) |
USA |
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Murphy v Brentwood District Council |
ENG |
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O'Doherty v Whelan |
Prof Neg LR 440 (HC, 18 January 1993) |
IRL |
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O'Donovan v Cork County Council |
[1967] IR 173 |
IRL |
|
O'Gorman v Ritz (Clonmel) Ltd |
[1947] Ir Jur 35 |
IRL |
|
OLG Frankfurt 27 October 1988 |
NJW-RR 1989/II, 794 |
GER |
|
OLL Ltd v Secretary of State for Transport |
[1997] 3 All ER 897 |
ENG |
|
Osman v The United Kingdom |
ECHR |
|
|
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound (No 1)) |
ENG |
|
|
Philips v Whiteley |
[1938] 1 All ER 566 |
ENG |
|
Phillips v Durgan |
[1991] ILRM 321 |
IRL |
|
Purthill v Athlone UDC |
[1968] IR 205 |
IRL |
|
Re F (Mental Patient Sterilisation) |
ENG |
|
|
Roche v Peilow |
[1985] IR 232 |
IRL |
|
Secretary of State for Home Office v Robb |
[1995] 1 All ER 677 |
ENG |
|
Securities Trust Ltd v Hugh Moore & Alexander Ltd |
[1964] IR 417 |
IRL |
|
Simmons v St Clair Memorial Hospital |
481 A2d 870 (Pa Super 1984) |
USA |
|
Simonds v Isle of Wight |
[2004] ELR 59 |
ENG |
|
Smith v Eric S Bush |
ENG |
|
|
Spring v Guardian Assurance |
ENG |
|
|
Stovin v Wise |
ENG |
|
|
Sullivan v Creed |
[1904] 2 IR 317 |
IRL |
|
Sunderland v Louth County Council |
[1990] ILRM 58 |
IRL |
|
Sutherland Shire Council v Heyman |
[1985] HCA 41; (1985) 157 CLR 424 |
AUS |
|
Swenson v Waseca Mutual Ins Co |
653 NW2d 794 (Minn Ct App 2002) |
USA |
|
Sydney County Council v Dell'Ore |
(1964) 132 Comm LR 97 |
AUS |
|
The People (AG) v Dunleavy |
[1948] IR 95 |
IRL |
|
Tomlinson v Congleton Borough Council |
ENG |
|
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Tribunal Correctionnel d'Aix 27 March 1947 |
D 1947, 304 |
FR |
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Vaughan v Menlove |
[1837] EngR 424; (1837) 3 Bing, NC 468, 132 ER 490 |
ENG |
|
Wagner v International Railroad Co |
(1921) 232 NYS 176, 133 NE 437 |
USA |
|
Ward v McMaster |
[1988] IR 337 |
IRL |
|
Watt v Hertfordshire County Council |
ENG |
|
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Weirs-Rodgers v The SF Trust Ltd |
IRL |
|
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White v Jones |
ENG |
|
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Whooley v Dublin Corporation |
[1961] IR 60 |
IRL |
1.
On 30th January 2006, the Attorney General requested the
Commission, under section 4(2)(c) of the Law Reform Commission Act 1975,
to make recommendations on the following matters:
· 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.
·
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.
2.
The request arises against the immediate background of a Private Members
Bill, the Good Samaritan Bill 2005, which was debated in Dáil Éireann on
6th and 7th December 2005. Section 2 of the 2005
Bill proposed to 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
damages were caused by the gross negligence of the person.
3.
The 2005 Bill appears to be modelled on similar Good Samaritan Statutes
enacted, for example, in the US and Canada, 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. While the 2005 Bill did not progress
past Second Stage in Dáil Éireann, the Commission discusses the content of the
Bill here for the purposes of comparison and contrast with the Attorney
General’s request.
4.
Chapter 1 sets out the
general policy setting in which the Attorney General’s request was received and
the Good Samaritan Bill 2005 was drafted. The chapter discusses
how the Attorney General’s request and the Good Samaritan Bill 2005 may
be compared and contrasted. The chapter examines in detail the categories
of person referred to in the Attorney General’s request – Good Samaritans,
voluntary rescuers, voluntary service providers, citizens and members of an
Garda Síochána or the Defence Forces (when not engaged in duties in the course
of their employment). The chapter also examines the concept of “benefit
to society” and the extent to which it may already be recognised at common law.
5.
Chapter 2 discusses the
concept of a positive duty to intervene. The chapter examines the extent
to which the common law and the civil law recognise a positive duty to
intervene. In this regard, the chapter refers to a number of duties which
are imposed by statute in Ireland. The chapter discusses whether it would
be appropriate to amend the law in Ireland to provide for a positive duty to
intervene in the context of rescue or voluntarism in general.
6.
Chapter 3 examines the
current common law duty of care as applied to Good Samaritans and
volunteers. The chapter explores the application of the current law to
different scenarios, and in particular examines whether a duty of care is
more likely to arise where the intervention of the Good Samaritan or volunteer
is more invasive or at a high level of professionalism or training. This
chapter also examines the issues raised in relation to the standard of care to
be applied to Good Samaritans and volunteers.
7.
Chapter 4 examines the
extent to which it may be appropriate to apply a gross negligence test to Good
Samaritans and volunteers. The chapter refers to the approach taken by
other common law jurisdictions and by comparison, civil law jurisdictions.
8.
Chapter 5 contains a
summary of the Commission’s provisional recommendations for reform.
9.
This Consultation Paper
is intended to form the basis for discussion and accordingly the
recommendations made are provisional in nature. Following further
consideration of the issues and consultation with interested parties, the
Commission will make its final recommendations. Submissions on the
provisional recommendations contained in this Consultation Paper are most
welcome. In order that the Commission’s final Report may be made
available as soon as possible, those who wish to do so are requested to send
their submissions in writing by post to the Commission or by email to
info@lawreform.ie by 31 March 2008.
1
1.01
The request from the Attorney General requires the Commission to examine
the legal duty of care of Good Samaritans and volunteers against the general
background of its policy setting. This is clear from the immediate
context from which the request emerged, namely, the debate in Dáil Éireann of the
Good Samaritan Bill 2005. That debate posed the question of
whether the legal duty of care needed to be changed in order to underpin the
clearly desirable goal that Good Samaritans should not be discouraged from
helping strangers who are in danger and that volunteers should, likewise, not
be discouraged from taking part in activities of benefit to the
community. The 2007 Report of the Taskforce on Active Citizenship indicates
that there are many initiatives which are required to encourage active
participation in community and society activities, and the Attorney General’s
request deals with a narrow aspect of this wider debate.[1] Nonetheless, that wider setting
forms an important part of the analysis of the legal duty of care.
1.02
In this Chapter, the Commission examines this policy setting. In
Part B, the Commission investigates the policy considerations at both the
national and international level. In Part C, the Commission discusses the
extent to which the Attorney General’s request may be compared with the Good
Samaritan Bill 2005. In Part D, the Commission examines the
categories of person specified by the Attorney General’s request. In Part
E, the Commission explores the meaning of the concept of “benefit to society”.
1.03
The Commission notes that the Good Samaritan Bill 2005 and the
Attorney General’s request arose against immediate concerns about the
phenomenon of sudden cardiac death syndrome. In 2004, the Department of
Health announced the appointment of a National Task Force on Sudden Cardiac
Death Syndrome. The report of the Task Force, entitled Reducing the
Risk: A Strategic Approach, was published in 2006.[2]
1.04
The Report emphasises the importance of timely responses in order to
improve the survival rate of those succumbing to cardiac arrest. The
Report recommends the roll out of a training programme for healthcare
professionals, occupational first-aiders and members of the public, in
cardiopulmonary resuscitation (CPR), basic life support (BLS) and operation of
automated external defibrillators (AEDs).[3]
Crucially, the Report highlights the need to clarify the legal position
of those responding to emergency situations:
“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,[4] the Task Force recommends that the legal
situation should be reviewed to protect rescuers from any possible litigation.”[5]
The Report can be seen against the background of other
Reports which have examined the legal and policy framework concerning the
activities of volunteers.
1.05
In 2000, the Government published a White Paper on Supporting
Voluntary Activity. It is noted in the White Paper 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.”[6]
1.06
In 2002, the National Committee on Volunteering (NCV) published Tipping
the Balance: Report and Recommendations to Governments on Supporting and
Developing Volunteering in Ireland. While the Report commends the
work of individual organisations in developing policies and procedures, it
notes 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.[7]
1.07
In 2005, the European Volunteering Centre (EVC) published a Country
Report on the Legal Status of Volunteers in Ireland, in conjunction with
the Association of Voluntary Service Organisations (AVSO). The EVC
observes that while there are policies to support the development of volunteerism,
there is no legislation specific to volunteers in Ireland. In particular,
the Country Report remarks upon the absence of legislative norms relating to
the reimbursement of out-of-pocket expenses and the insurance of volunteers
while “on the job”. In this regard, the Country Report refers to the
recommendation of Volunteering Ireland that organisations should draft
volunteer policies stating, amongst other things, that volunteers are insured
against risks of illness, accident and third party liability.[8]
1.08
The Commission notes that “volunteering” is not just a question of
domestic proportions. As an item on the international agenda, there is
increasing recognition of the role volunteering has to play in the fulfilment
of international obligations.
1.09
In particular, the Commission notes the importance that the UN General
Assembly has attributed to volunteerism,[9]
recognising the responsibility of governments to develop strategies and
programmes to support volunteering at a national level.[10] Furthermore, the General Assembly
underlines the value of volunteerism in many different fields such as those
covered by the Millennium Development Goals.[11]
1.10
Drawing from these
sources, the Commission notes the importance of
volunteerism, nationally and internationally. The Commission also
acknowledges the suggestion made by various bodies, including the Task Force on
Active Citizenship, that relevant legislation may be of some value in this
respect.
1.11
In Part C the
Commission examines the scope of the proposed Good Samaritan Bill 2005
and analyses the extent to which its provisions coincide with those of the
Attorney General’s request.
1.12
The language used in both the Good Samaritan Bill 2005 and the
Attorney General’s request is the language of civil liability in tort. While
the Good Samaritan Bill 2005 deals solely with the question of whether a
Good Samaritan may be found liable for his or her negligence,[12] the Attorney’s request looks at
this and whether a duty may be imposed on all persons to act as a Good
Samaritan.
1.13
The Commission notes that the Good Samaritan Bill 2005 was
intended to protect any person other than a health care professional acting in
the course of his or her employment, so long as that person has provided first
aid assistance at the immediate scene of the accident or emergency, voluntarily
and without expectation of compensation or reward.[13] Assuming that the term “person” is
not intended to include legal persons, such as companies or other incorporated
entities (such as State bodies), the 2005 Bill would have limited its
protection to individual Good Samaritans.[14]
1.14
The Commission observes that the purpose behind the Attorney General’s
request is different. First, the request asks the Commission to examine
the duty of care and the standard of care of: (a) Good Samaritans, (b)
voluntary rescuers and (c) voluntary service providers. Second, the
request asks the Commission to examine whether a positive duty to rescue may be
imposed on all citizens, members of the caring professions, the Garda Síochána
and the Defence Forces (when not engaged in duties in the course of their
employment).
1.15
On this basis, the Attorney’s request may apply to both individuals and
organisations. While the “Good Samaritan” tends to be an individual
providing a spontaneous response, the “voluntary rescuer” will normally be a
member of a rescue organisation providing a structured response. The
Commission also notes that a “voluntary service provider” is just as likely to
be an organisation as it is to be an individual. This may be contrasted
with the final paragraph of the request, which refers to “citizens” and
“members”, which clearly relates to individuals rather than organisations.
1.16
The Good Samaritan Bill 2005 intended to provide protection to
those providing “emergency first aid assistance”[15] and thus appears to anticipate
activities of a medical nature alone.[16]
In addition, the use of the term “emergency” in the 2005 Bill may exclude
medical intervention of a less than urgent nature. Since first aid
assistance is, by its very nature, reactive rather than pre-emptive, any
actions undertaken to prevent an illness, injury or lapse into unconsciousness
might have been excluded from the intended protection in the 2005 Bill.
1.17
By contrast with the 2005 Bill, the Attorney General’s request is not
limited to any particular type of activity. In respect of Good
Samaritans, for instance, the request refers to “assistance” and “help”
rendered to an “injured person”. While this does not necessarily mean the
assistance or help must be of a medical nature, it does seem to preclude any
pre-emptive action that would prevent injury. In respect of voluntary
rescuers, the activities most commonly undertaken would probably fall within
the range of what might be described as a “rescue operation”. These may
include, but are not limited to, “emergency first aid assistance”.
Furthermore, such activities may be either pre-emptive or reactive in nature,
although it is debatable as to whether pre-emptive action may accurately be
described as “rescue”. In relation to voluntary service providers,
“voluntary services” may encompass an infinite range of activities, so long as
such activities are for the “benefit of society”. The final paragraph of
the Attorney’s request refers to “assisting an injured person or a person who
is at risk of such an injury”. The term “assist” may refer to a wide
range of activities. Furthermore, since the recipient of the assistance
may be injured or simply at risk of such an injury, the assistance may be
either reactive or pre-emptive.
1.18
In jurisdictions where Good Samaritan statutes are already in use, there
has been much discussion as to which activities are actually protected.
Invariably, the courts have directed their scrutiny to the terminology used by
the legislators in the given statute. In this regard, the courts have frequently
been required to interpret the meaning of the term “assistance” or “render
assistance”.
1.19
For instance, in Johnson v Thompson Motors of Wykoff Inc[17] 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.[18] In Buck v Greyhound Lines Inc,[19] the Nevada Supreme Court denied the defendant’s
claim to Good Samaritan immunity as the plaintiffs were uninjured at the time
he offered assistance.[20]
1.20
In Howell v City Towing Associates Inc,[21]
a call for help did not satisfy the requirement of rendering emergency
care. However, it was noted that the outcome might have been different
had the call been made directly to medical personnel rather than via the
dispatcher.[22]
1.21
In McDowell v Gillie[23]
the court had to determine whether the act of stopping and inquiring if
assistance was required could constitute rendering aid or assistance under the
Good Samaritan Act.[24]
The court consulted 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].” Consequently, the court
concluded that the act of stopping and inquiring could constitute the rendering
of aid and assistance”.[25]
1.22
The Good Samaritan Bill 2005 envisaged the recipient of the
voluntary service as “a person who is ill, injured or unconscious.”[26]
1.23
The scope of the Attorney General’s request appears to be broader in
this respect. For the most part, the request refers to “third parties” as
the recipients of the voluntary service. The use of such a neutral term
prevents the situation from being further qualified by reference to the person
to whom the service is being rendered. Furthermore, the term “third
party” may also imply that there is no prior relationship, contractual or
otherwise, between the service provider and the recipient.
1.24
In respect of Good Samaritans, however, the term “third party” is used
in conjunction with in the request with the term “injured person”.
Consequently, an individual may not be considered a Good Samaritan unless he or
she is assisting an injured person, as opposed to a person who is merely in
need of assistance.
1.25
The recipient of the voluntary service contemplated by the final
paragraph of the Attorney’s request is not a third party but “an injured person
or a person who is at risk of such an injury.” As such, the recipient may
equally be a person who is injured or a person who is in danger of becoming
injured in the case of intervention by members of the caring professions and
members of an Garda Síochána or the Defence Forces.
1.26
As was mentioned above, the Good Samaritan Bill 2005 referred to
those who are “ill, injured or unconscious.”[27] While it may be readily apparent
that a person is unconscious, it may not be so easy to determine whether a
person is ill or injured. Furthermore, while it might be presumed that an
unconscious person requires emergency first aid assistance, the same might not
be presumed in relation to a person who is “ill” or “injured.”
1.27
For instance, the term “illness” may be used to describe a condition
affecting an individual’s physical or mental health. Its symptoms, if
any, may be visible for all to see or apparent only to a select few. The
“illness” may be a pre-existing condition, over which control is being
exercised or over which control has been lost. Likewise, the “illness”
may be a singular occurrence or an incident marking the beginning of a
persistent condition.
1.28
The term “injury” is equally unrestricted. In legal terms, an
“injury” may be of a physical (injury to a person or property), mental or
economic nature. As only injuries of a physical nature could require
emergency first aid assistance, it may be presumed that these were the type of
injuries contemplated by the 2005 Bill.
1.29
The Good Samaritan Bill 2005 did not set a gravity threshold in
respect of the “illness” or “injury”. To do otherwise would require
laypersons to determine the severity of a victim’s injury or illness before
offering assistance. In any case, it is possible that a less serious
injury or illness, left untreated, may become more serious.[28] The absence of a gravity threshold
would appear to be a fairly common characteristic of Good Samaritan Statutes.[29]
1.30
In respect of the Attorney General’s request, the paragraph dealing with
Good Samaritans refers specifically to an “injured person”. This is in
contrast to the Good Samaritan Bill 2005, which appeared to limit the
type of injury to those types requiring emergency first aid assistance.
Consequently, it is possible that “injury”, in the context of the
Attorney’s request, may refer to physical, mental or economic injury to a
person or property.
1.31
In respect of voluntary rescuers and voluntary service providers, the
Attorney’s request does not limit the examination of liability to instances in
which the individual is “ill, injured or unconscious”. In this respect, a
general examination is required.
1.32
As was noted above, the final paragraph of the Attorney’s request refers
to an “injured person or a person who is at risk of such an injury”. This
may, therefore, involve actual or potential injury. Where the injury can
be described as potential, it is not clear whether the volunteer must consider
the likelihood of injury actually eventuating before rendering assistance.
1.33
It must be noted that the legal treatment of any situation may need to
take into account whether an illness, injury or lapse into unconsciousness is
self-induced or the result of some outside force, such as a third party or
natural circumstances.
1.34
The Good Samaritan Bill 2005 contemplated situations of “accident
or other emergency”. Phrased in this way, it would seem that an
“accident” is to be interpreted as a type of “emergency”. To understand
why this might be so, it is useful to compare how the terms are defined in a
general sense and how they are defined in a legal sense.
1.35
According to the New Oxford English Dictionary, an accident is “an
unfortunate incident that happens unexpectedly and unintentionally, typically
resulting in damage or injury.”[30]
In contrast, an emergency is “a serious, unexpected and often dangerous
situation requiring immediate action.”[31]
Common to both definitions is the element of surprise or unexpectedness.
However, an “emergency” is not limited to “unintentional” incidents.
Furthermore, an “emergency” is of a serious nature and requires immediate
intervention.
1.36
In those jurisdictions where Good Samaritan statutes already apply, the
Commission notes that the need to define such terms has arisen. In Swenson
v Waseca Mutual Ins Co,[32]
for instance, the court acknowledged that the term “emergency” had not been
defined by statute or case law in the context of the Good Samaritan statute.
However, case law broadly defined an “emergency” as “any event or occasional
combination of circumstances which calls for immediate action or remedy.”[33]
1.37
The Attorney General’s request makes no reference to accident or
emergency. Therefore, it does not limit the question to situations
involving an accident or emergency. Thus, an extremely wide range of
situations may fall within its ambit. However, in the context of Good
Samaritans, voluntary rescuers, voluntary service providers and intervention to
assist an injured person or person at risk of injury, the presence of an
accident or emergency might be presumed.
1.38
The Good Samaritan Bill 2005 proposed that the emergency first
aid assistance must be provided “at the immediate scene of the accident or
emergency”.[34]
Most often, emergency first aid assistance will be administered at the site of
the accident or emergency. However, there may be situations in which it
is necessary to render assistance away from the site. Thus, had the term
“emergency” been used without the qualification of “immediate scene”, the
scenario contemplated might have extended beyond the precise location of the
incident. This might be the case where it is necessary to transport the
ill, injured or unconscious person to a health care facility. In Swenson
v Waseca Mutual Ins Co,[35]
the question arose as to whether transportation was protected under the Good
Samaritan Statute. While the court in that case concluded that
transportation was protected, a different conclusion was reached in Dahl v
Turner.[36]
1.39
The Commission notes that the Attorney General’s request is not
site-specific. As a result, it would allow first aid assistance and other
assistance to be rendered away from the scene of the incident.
1.40
The Good Samaritan Bill 2005 refers to those who have “acted
voluntarily and without reasonable expectation of compensation or reward.”[37] According to the Oxford English
Dictionary, the term “voluntary” is defined as “done, given or acting of one’s
own free will” and “working, done or maintained without payment”.[38]
1.41
A voluntary act, therefore, is an act performed without
compulsion. A person undertakes the activity not because he or she is
duty-bound to do so, but simply because he or she wishes to do so. This
would seem to exclude those acts performed in consequence of contractual
obligations, statutory duties or perhaps even special relationships. In
addition, a voluntary act may be an act done gratuitously. Thus, where an
individual performs an act without compulsion or reward he or she may be described
as voluntarily assuming responsibility. The Commission notes that this
may give rise to certain legal obligations.[39]
1.42
By contrast, the Attorney General’s request refers to those who are
engaged in “voluntary” activities in general, such as voluntary rescuers and
voluntary service providers. More specifically the request refers to
situations involving Good Samaritans and members of particular professions when
not compelled by their contracts of employment, for example, the caring
professions, the Garda Síochána and the Defence Forces.
1.43
The Good Samaritan Bill 2005 excluded “health care professionals”
acting in the course of their employment from its protection.[40] The 2005 Bill defined “in the
course of employment” as being where the health care professionals were
“providing emergency health care services or first aid assistance… having been
summoned or called to provide services or assistance for payment or reward.”[41] This echoed another provision of
the 2005 Bill, in which “a person other than a health care professional acting
in the course of employment” must have “acted voluntarily and without
reasonable expectation of compensation or reward.”[42]
1.44
The Commission observes here 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. In addition, he or she is reimbursed for any
risk he or she assumes. Consequently, it is only fair that such a person
should fall outside the remit of a statute intended to protect those who
volunteer their services.
1.45
Where a person acts in the “course of employment”, other routes to
redress may be available to the injured party. Aside from the personal
liability of the employee, liability may attach to the employer either
personally or vicariously. Therefore, the extent to which a volunteer may
also be an employee will have significant implications concerning employer’s liability.[43] Furthermore,
there may be arrangements in place to protect a professional person, such as
personal insurance policies, or indemnity schemes such as the Clinical
Indemnity Scheme in respect of health care providers.
1.46
During the Dáil Debates on the 2005 Bill, criticism was levelled at the
exclusion of health care professionals acting in the course of employment.[44] It was argued that the 2005 Bill
introduced a distinction between professionals on the ambiguous basis of
whether they had been “summoned or called to provide services or assistance for
payment or reward.” Consequently, a higher standard of care might be
expected of a doctor on duty than a doctor off duty, of a doctor treating his
or her patient than a doctor treating a stranger, of a paramedic on duty than a
doctor off duty, or of a doctor in the public health service than a private
consultant. The Commission notes that complications may also arise in
situations where off-duty professionals respond in accordance with obligations
imposed by a profession, such as the doctor’s Hippocratic Oath to strive to
save life, professional ethical guidelines, or Employer Supported Volunteering
(ESV) schemes.
1.47
An alternative approach, the Commission notes, would be to omit the
phrase relating to actions taken in the course of employment and to provide a
stronger definition of the term “Good Samaritan” instead.
1.48
The Attorney General’s request makes use of a similar phrase, referring
to members of the caring professions, the Garda Síochána and the Defence Forces
who are “not engaged in duties in the course of their employment”.
1.49
In respect of the
various elements of the Good Samaritan Bill 2005 and the Attorney
General’s request highlighted above, the Commission notes that the Attorney
General’s request contemplates a more wide-ranging scope of application.
Without prejudice to the provisional recommendations which the Commission makes
in the following chapters of this Consultation Paper, the Commission notes here
the value of having legislation that is sufficiently wide-ranging in scope to
encompass all organisations and individuals who provide an equally beneficial
service. In terms of specific issues, the Commission is inclined to the
view that the phrase “engaged in duties in the course of their employment”
might be made redundant if a comprehensive definition of the terms “Good
Samaritan”, “voluntary rescuer” and “voluntary service provider” were to be
included in such a statute.
1.50
In Section D, the
Commission now proceeds to discuss in detail the categories of person referred
to in the Attorney General’s request.
1.51
The phrase “Good
Samaritan” is derived from the moral and religious parable of the same name.[45] The parable, in effect, places a
moral demand on all persons to help those who are less well off - it advises us
to volunteer to help a person in need. In Chapter 2, the Commission notes
this moral rule has no legal standing in most common law states, such as
Ireland. Indeed, the leading case on civil liability for negligence, Donoghue
v Stevenson,[46]
is specifically premised on the view that a person has no legal duty to act to
rescue another person in need: there is no legal obligation to be a Good
Samaritan. The question addressed, however, in Good Samaritan statutes is
as follows: if a person who has no legal duty to help another person does so,
should they be under the ordinary legal standard of negligence, or should they
be excluded unless, for example, they act grossly negligently?
1.52
Much of the literature dealing with the topic of the “Good Samaritan”
uses the term to refer to any person who responds to an emergency or
rescue-type situation, especially where that person is not acting in the course
of his or her employment. This was echoed in the Good Samaritan Bill
2005.
1.53
The Commission observes that many definitions of the term “Good
Samaritan” have been constructed over the years.[47] Not all of these definitions
confine the Good Samaritan to the emergency or rescue-type scenario, using the
term “Good Samaritan” to describe a person who renders any type of charitable
assistance.[48]
More often than not, however, the definitions emphasise the moral motivation
behind the Good Samaritan’s intervention. The Commission notes that the
Attorney General’s request provides its own definition, defining the “Good
Samaritan” as one who intervenes to assist and help an injured person.
1.54
The Attorney General’s request clearly sets the Good Samaritan apart
from voluntary rescuers, voluntary service providers and, possibly, members of
certain professions (acting outside the course of employment). In the
context of voluntary rescuers and voluntary service providers, this may indicate
that a person ordinarily engaged in such activities may never be classified as
a “Good Samaritan”. Alternatively, it may simply indicate that a person
whose intervention is pursuant to his or her occupation as a voluntary rescuer
or voluntary service provider may not be classified as a “Good
Samaritan”. Thus, a person ordinarily engaged in voluntary rescue or
voluntary service provision may indeed be classified as a “Good Samaritan”
where he or she is off-duty. A similar logic may be applied to professionals
(acting outside the course of employment).
1.55
If this is so, it is most likely that these distinctions are based on
the relative levels of skill and preparation attributed to each category of
person - voluntary rescuers, voluntary service providers and members of
particular professions. However, there may be situations in which even
these individuals may be called upon to act, when they are not prepared or
equipped to do so. Thus, the term “Good Samaritan” may be used to
describe any person who happens upon an accident or emergency unexpectedly, who
is most likely unprepared to deal with the accident or emergency and who may or
may not be endowed with an element of specialist skill. The level of
skill may be pertinent to the analysis of the appropriate standard of care.
1.56
The Attorney General’s request distinguishes voluntary rescuers from
Good Samaritans, voluntary service providers and members of certain professions
(acting outside the course of employment).
1.57
By denoting this group as “rescuers”, the Attorney General’s request may
be suggesting that there is an element of specialty involved in the
activity. Although referring to first responder programmes, the
Commission notes the relevance of the characteristics listed in the 2006
Report of the Task Force on Sudden Cardiac Death.[49] These characteristics are:
· Structured
response systems based on the planned availability of first responders;
· Effective
alerting systems; and
· Defined
areas of coverage.
In the context of “rescuers”, the implication is that
rescuers operate in a specialised unit, in anticipation of an accident or
emergency and are quite prepared to deal with such an event should it arise.
1.58
While there may be some overlap between rescuers and first responders,
the definition in the Report of the Task Force on Sudden Cardiac Death
highlights that these two categories are more different than alike.
According to this definition a first responder is:
“A person trained as a minimum in BLS (Basic Life Support)
and the use of an AED (Automated External Defibrillator), who attends a
potentially life threatening emergency. This response may be by the
statutory ambulance service or complementary to it. If complementary,
first responders can be linked with the statutory emergency services or they
can be independent and stand alone. In any single event the first
responder may be an individual who happens to be present or part of a first
responder programme. Trained first responders may or may not participate
in a first responder programme.”[50]
This definition applies only to those people who are trained
in some form of first aid and, most likely, to situations requiring first aid
assistance. In addition, it contemplates an emergency situation that is
“potentially life threatening”. In contrast, not all incidents to which a
voluntary rescuer responds will be of such a serious nature. Furthermore,
the definition allows for responses made by a statutory ambulance, in other
words by people acting in the course of employment. The Commission
considers that it is unlikely that the Attorney General’s request intended to
include those acting in the course of employment in the definition of
“voluntary rescuers”.
1.59
The Report of the Task Force on Sudden Cardiac Death identifies
seven models of first responder programmes.[51] These are: Emergency Medical
Services (EMS) First Responders, General Practitioner (GP) First Responders,
Uniformed First Responders (on-duty and off-duty), Community First Responders,
Site Specific First Responders, Public Access Defibrillation and
Individual/Home First Responders. For the purposes of the Attorney
General’s request, these categories appear to be over-inclusive. They
cover every person who has attained a certain level of training, whether they
are professionals or non-professionals, on-duty or off-duty, members of a
specialised response team or non-members. Furthermore, in relation to
off-duty first responders, the Task Force Report includes those who are
off-duty members of certain professions and those who are members of voluntary
rescue organisations.
1.60
The Commission notes the importance which the Task Force Report attached
to voluntary organisations. The Task Force recommends that more
consideration should be given to the role of voluntary organisations and
highlights the importance of developing a closer relationship between the
statutory and voluntary sectors.[52]
By way of illustration, the Pre-Hospital
Emergency Care Council (PHECC)[53]
Commission lists, among others, the following groups as “voluntary rescuers”:
· Air
Corps
· Civil
Defence[54]
· Irish
Coast Guard
· The
Irish Heart Foundation
· Irish
Mountain Rescue
· Irish
Red Cross
· Irish
Society for Immediate Care
· Order
of Malta Ambulance Corps
· St
John Ambulance Brigade
1.61
A voluntary rescuer will usually be a member of a voluntary rescue
organisation, will be trained and equipped to deal with emergencies and
rescue-type situations and will have some level of expectation that an
emergency or rescue-type situation will arise. Thus, a voluntary rescuer
who intervenes while off-duty from the voluntary organisation may very well be
classified as a “Good Samaritan.” Furthermore, it is possible that there
may be situations in which a voluntary rescuer may also constitute a voluntary
service provider. Finally, there is nothing to suggest that members of
those professions mentioned in the Attorney General’s request may not
participate in the activities of a voluntary rescue organisation while not
engaged in the course of employment. In summary, therefore, each of these
categories and organisations are useful indications of the scope of the term
“voluntary rescuers”, but they indicate that there is considerable overlap
between them.
1.62
It is equally difficult to define with precision the term “voluntary
services”. The term may refer to the Voluntary and Community Sectors,
sometimes called the Third Sector. The Voluntary and Community Sector is
helpfully discussed in the Government’s 2000 White Paper on Supporting a
Framework for Voluntary Activity:
“The roots of the voluntary Sector can be traced back to the
charitable and philantropical organisations – many church-based – of the
eighteenth century. The voluntary Sector is the larger of the two [that
is, the voluntary and community Sectors], with a focus often on service
delivery and a greater reliance on charitable donations and fund raising.
Many voluntary Sector organisations are major service providers, particularly
in the fields of health, disability and services for the elderly.
Community Sector groups tend, on the other hand, to be smaller in scale and
focus on responses to issues within a given community (geographical or interest
based) and often with a social inclusion ethos.” [55]
1.63
Thus, the voluntary sector may be separate and distinct from the
community sector. While the voluntary sector may be described as
entailing the provision of not-for-profit social services, the community sector
is usually associated with mutual aid, self-help “active citizenship” groups
and focuses on issues of social inclusion and participatory democracy.[56]
1.64
The White Paper also notes that the term Voluntary Sector has also been
used to refer to the wider “non-profit Sector”.[57] The non-profit Sector may be
defined as the sector that is non-market and non-state. It spans a range
of specialised organisations and institutions, such as voluntary public
hospitals, major sporting organisations (such as the GAA or the Special
Olympics), church-based institutions, credit unions, political parties,
employer organisations, trade unions, major organisations supporting those with
limited intellectual capacity and educational institutions.
1.65
More recently, the Taskforce on Active Citizenship has defined the
voluntary sector as:
“…often traditionally equated loosely with charities or with
professionally-led non-profit organisations operating in the personal social
services, but recently equal emphasis has begun to be placed on community
organisations. The more usual phrase now is the ‘voluntary and community
sector’.”[58]
It may be noted that this definition refrains from drawing a
line between the voluntary sector, on the one hand, and the community sector,
on the other.
1.66
In any event, the Commission notes that there are a number of activities
generally undertaken by the Community and Voluntary sector:[59]
· Delivery
of essential services
· Advocacy
and provision of information
· Contributing
to policy-making
· National
and local partnership arenas
· Undertaking
research
· Creation
of opportunities for members and participants to access education, training,
income and employment opportunities
Some, but clearly not all, of these are relevant to the
question of liability of Good Samaritans and, more particularly, the type of
voluntary activity contemplated by the Attorney General’s request.
1.67
Voluntary services may
be provided by individual volunteers or voluntary organisations.[60] Thus, it is useful to consider
each type of provider separately.
1.68
The overarching theme of the Attorney General’s request relates to the
duty of care and standard of care of volunteers, whether such volunteers are
Good Samaritans, voluntary rescuers, voluntary service providers or certain
professionals (not acting in the course of employment). Schematically, it
is convenient to discuss the generalities of volunteers and volunteerism in
this section dealing with voluntary service providers.
1.69
The 2002 Report of the National Committee on Volunteering Tipping the
Balance examines the issue of volunteering in detail.[61] The Report observes that while
different definitions of the term “volunteering” apply in different countries,
a number of common elements may be discerned. It states that
“volunteering” is usually unpaid and without obligation and for the benefit of
others and society. It emphasises that while voluntary activity will
usually involve a degree of sacrifice, a volunteer may derive a number of
personal benefits. According to the Report, international comparative
research has found that consideration of the net cost of volunteering to an
individual is central to the public perception of who is acting, to a greater
or lesser degree, as a volunteer.
1.70
In the Irish context, the most popular definition of “volunteering”
appears to that contained in the Government’s 2000 White Paper on Supporting
Voluntary Activity, which defines volunteering as:
“…the commitment of time and energy, for the benefit of
society, local communities, individuals outside the immediate family, the
environment or other causes. Voluntary activities are undertaken of a
person’s own free will, without payment (except for reimbursement of
out-of-pocket expenses).”[62]
This definition was proposed by the Carmichael Centre for
Voluntary Groups and has recently been adopted by the Task Force on Active
Citizenship. The exclusion of services provided to one’s “immediate
family” from the ambit of “volunteering” is worth noting.[63]
1.71
The 2002 Report Tipping the Balance distinguishes between two
forms of volunteering, informal and formal. The Report explains that
informal volunteering refers to:
“…voluntary work done by the individual at her or his own
behest and not through an organisational setting, but not for a relative and
unpaid. ”[64]
In contrast, the Report explains that formal volunteering refers
to:
“…voluntary work done with or through an organisation.
Formal settings include not only voluntary organisations, but workplace
settings, the public sector, school or other educational establishments or, in
more recent times, virtual networks established over the Internet. Such
organisations are referred to as volunteer-involving organisations.”[65]
1.72
The Report observes that while there are many settings for formal
volunteering, the majority of this occurs in voluntary and community
organisations, which in turn make up the voluntary sector.[66] The individual may volunteer his
or her services at the top end of the voluntary organisation, for instance, as
a director or trustee, or at ground level, for instance, as a service
provider. Furthermore, a volunteer may work part-time or full-time, in
Ireland or abroad.
1.73
There are a number of areas in which Irish volunteers are particularly
active, both informally and formally:[67]
· Collecting
items to raise money for/give to those in need
· Visiting
the elderly
· Helping
at a club or with a club activity
· Visiting
the sick
· Visiting
the lonely
· Serving
as a ‘church helper’
· Serving
on a committee for a charity
· Voluntary
community work
· Giving
Blood
· Conservation
of the environment
· Involvement
in sports
It is clear that a large number of these activities are
relevant to the Attorney General’s request.
1.74
The Community and Voluntary Sector operates via a network of,
predominantly, voluntary organisations. Voluntary organisations are
formal, non-profit-distributing and independent of government.[68] In addition, they contribute to
the public good and contain some element of voluntary participation.
Similarly, the Johns Hopkins structural/operational definition of non-profit
organisations states that voluntary participation is a key defining
characteristic and one of five central criteria:[69]
· “Organised:
they have an institutional presence and structure;
· Private
or non-governmental: they are institutionally separate from the state;
· Non-profit
distributing: they do not return profits to their managers or to a set of
‘owners’;
· Self-governing:
they are fundamentally in control of their own affairs;
· Voluntary:
membership is not legally required and such organisations attract some level of
voluntary contribution of time or money.”
Therefore, without volunteering the organisation cannot be
described as “voluntary”. However, it must be stressed that voluntary
organisations may have paid employees and that both of these definitions allow
for different scales of voluntary activity within the organisation.[70]
1.75
In line with this, the Government’s 2000 White Paper on
Supporting Voluntary Activity lists a number of characteristics that
voluntary organisations may have in common. Typically, voluntary
organisations may be:[71]
· Distinguished
from informal or ad hoc, purely social, or familial groupings by having
some degree, however vestigial, of formal or institutional existence.
· Non‑profit
distributing
· Independent,
in particular of Government and other public authorities
They must also be:
· Managed
in what is sometimes called a “disinterested” manner ‑ in the Irish
context this particularly relates to containing some element of voluntary,
unpaid participation
· Active
to some degree in the public arena and their activity must be aimed, at least
in part, at contributing to the public good.
1.76
Voluntary organisations may be distinguished on the basis of their
primary activity. The most common activities undertaken by voluntary
organisations are:[72]
· Service
delivery or provision of services
· Advocacy
· Self-help
or mutual aid
· Resource
and co-ordination
In the context of this Consultation Paper, the Commission’s
focus is on those organisations involved in service delivery or the provision
of services. However, it must be remembered that such organisations may
undertake a range of activities, which span the other three categories listed.
1.77
There are three main structures which may give legal status to a group
in the Community and Voluntary Sector:[73]
· Trust,
especially Church-based organisations
· Limited
Company, usually limited by guarantee
· Industrial
and Provident Society.
1.78
There are a number of advantages to having a specific legal
structure. Firstly, the individual members of the group are not generally
legally responsible for the group’s activities, including any debts which may
arise. The group can own property, enter into contracts and employ people
in its own name. The group can bring and defend court proceedings in its
own name and the group can apply for charitable recognition (although this also
applies to some unincorporated groups).
1.79
An organisation in the Voluntary and Community sector may also be
recognised as a charity. [74] Under existing law, a charity is a body which is
established for charitable purposes only. Charitable purposes in this
respect involve:
· The
advancement of education
· The
advancement of religion
· The
relief of poverty, or
· Other
works of a charitable nature beneficial to the community.[75]
Looking at the fourth charitable purpose, there is a clear
similarity between the phrase “beneficial to the community” and the phrase “of
benefit to society” used in the Attorney General’s request. In this
respect, those organisations contemplated by the Attorney General include
charitable organisations.
1.80
With reference to the provision of services, “the [voluntary] sector not
only complements and supplements State provision, but is the dominant provider
in particular areas.”[76]
This point may be illustrated by reference to the activities
undertaken by the Irish Mountain Rescue Association, a voluntary group which is
not replicated in the public sector field, but which is funded in part by the
State.
1.81
The relationship between volunteering and government is increasing in
importance.[77]
In its Universal Declaration on Volunteering, the International Association for
Volunteer Effort (IAVE) called on governments:
“…[T]o ensure the rights of all people to volunteer, to
remove any legal barriers to participation, to engage volunteers in its work,
and to provide resources to NGOs to promote and support the effective
mobilisation and management of volunteers.”[78]
1.82
It is clear that different organisations maintain different
relationships with the State.[79]
While many form close partnership relationships with the State, often depending
on statutory funding for survival, others challenge the State through vigorous
social movements that some see as a “people’s opposition.” For their
future survival, one commentator has advocated the Irish Social Partnership
model, describing it as “imaginative in its strategy”.[80] The Social Partnership model
envisages a symbiotic relationship between the third sector and the State, with
an “enabling State” based on a social market economy positioned in the overall
framework of the European Union.
1.83
In its 2000 White Paper on Supporting Voluntary Activity, the
Government stated that it regards statutory support of the Community and
Voluntary sector as having an importance to the wellbeing of society that goes
beyond the utilitarian “purchase” of services. Accordingly, the
Government envisages a society which encourages its members to provide for
their own needs, independently of the State and, where this is not possible, in
partnership with statutory agencies.
1.84
The fourth and final
paragraph of the Attorney General’s request requires the Commission is to
examine whether a general duty to intervene should be imposed on “citizens” and
“off-duty members” of the caring professions, an Garda Síochána or the Defence
Forces. It is useful to deal with each category of person separately.
1.85
The first group mentioned in the final paragraph of the Attorney
General’s request is “citizens”. While the term “citizen” is, from a
legal perspective, commonly used in the context of citizens of a particular
state, the Commission considers that, for the purposes of this request, it was
not the intention of the Attorney General to limit this group to individuals
with an Irish passport. In this context, the term “citizens” is an
allusion to the idea of “active citizenship.”[81] The term “active citizen” was
discussed by the Taskforce on Active Citizenship:
“Broader than just a narrow definition of citizenship, such
as appears on a passport, being an active citizen implies that we are aware and
responsible members of a community. We can belong to a community in which
there are many communities – sometimes with divergent values and identities –
but all sharing some common sense of responsibility and shared civic
space. Indeed, developments such as the Good Friday Agreement and
increased migration have extended traditional notions of Irishness.”[82]
This definition emphasises that, for this purpose,
“citizenship” goes beyond ownership of an Irish passport. While
citizenship relates to being part of a community, it requires the citizen to be
an active participant in that community. Thus, citizenship entails both
rights and responsibilities. [83]
1.86
A similar definition is contained in the Government’s 2000 White
Paper on Supporting Voluntary Activity:
“Active citizenship refers to the active role of people,
communities and voluntary organisations in decision-making which directly
affects them. This extends the concept of formal citizenship and
democratic society from one of basic civil, political and social and economic
rights to one of direct democratic participation and responsibility.”[84]
This highlights that it is not just individuals who have a
role to play, but also communities and voluntary organisations.
1.87
The Commission stresses, however, that “active citizenship” is not
limited to communities and voluntary organisations. The role of business
is also increasing in importance. There is:
“…a growing consensus that the role of business in society is
more complex than maximising the return to shareholders. Business must
take account of the interests of other stakeholders – not just the obvious ones
like staff or customers – but the needs of the wider community in which they
operate. The long term economic success of a business requires
maintaining the legitimacy and public confidence that comes from compliance
with fair regulation, and from ethical behaviour and engagement with
communities in which they do business.”[85]
To illustrate this, the Commission notes the growing
importance of employer supported volunteering (ESV)[86] and corporate social responsibility.[87]
1.88
The three activities most commonly associated with “active citizenship”
are:[88]
· Civic
Participation: for example voting in elections, contacting a local councillor
or TD about an issue of public interest or attending a public meeting;
· Formal
volunteering/community involvement: unpaid help through a group or
organisation;
· Informal
volunteering: unpaid help to an individual or others who are either family
members or otherwise.
Thus, an active citizen may be any person who participates in his
or her community, whether by performing civic duties or undertaking voluntary
activity.[89]
In other words, the active citizen participates in civil society, which is the
domain of secondary associations that are distinct from primary domains, such
as family, Market and State. [90] The active citizen will generally be one who pursues
the common good.[91]
Therefore, the term “active citizen” is broad enough to encapsulate the
categories of Good Samaritan, voluntary rescuer, voluntary service provider and
member of a profession (when not acting in the course of employment) to which
the Attorney General’s request refers.
1.89
The Attorney General’s request refers, separately, to citizens and
off-duty members of the caring professions, an Garda Síochána and the Defence
Forces. The rationale for this may be to distinguish “citizens” from
“off-duty members” of the particular professions. However, as was noted
in the previous section, the term “citizen”, where it means “active citizen,”
is broad enough to incorporate off-duty members of those professions mentioned.
1.90
Before examining this any further, the Commission notes that each one of
these professions is defined and regulated by statute. For instance, the “caring
professions”, which is probably shorthand for “health and social care
professions”, are regulated by, for example, the Dentists Act 1985, the Nurses
Act 1985, the Health and Social Care Professionals Act
2005, the Medical Practitioners Act 2007 and
the Pharmacy Act 2007. An Garda Síochána is regulated by the
Garda Síochána Act 2005, while the Defence Forces are regulated by the Defence
Act 1954.
1.91
By grouping the caring professions, an Garda Síochána and the Defence
Forces together, the Attorney General may be acknowledging that members of
these professions assume professional obligations relating to public health and
safety. The Commission notes that members of these professions have
undertaken a certain amount of training and have, therefore, attained a certain
level of skill. As a result, it might easily be concluded that members of
these professions are in a particularly strong position to respond to emergency
and rescue-type situations whenever and wherever they occur. However,
such a conclusion would not acknowledge that within these professions there are
vastly different specialisations, skills and standards. For instance, it
may not be reasonable to expect an off-duty podiatrist (that is, a foot specialist)
to give the type of assistance that might be given by an off-duty accident and
emergency doctor, even though both are qualified “doctors”. This may be
even more pronounced within the ranks of an Garda Síochána and the Defence
Forces, where skills may differ depending on whether the individual is a
civilian, non-civilian or medical member of staff.
1.92
The final paragraph of the Attorney General’s request applies to
professionals “when not engaged in duties in the course of their
employment”. The Commission interprets this as referring to activities
undertaken by a professional person who is off-duty. This interpretation
may, however, raise concerns in respect of employees who are engaged in
employer-supported volunteering (ESV). The phrase may equally refer to a
role or duties, assumed by the professional, ancillary to that or those
designated by his or her contract of employment. This might accommodate
employer-supported volunteering schemes. The Commission also acknowledges
that the phrase may cover situations in which the professional is engaged in a
professional activity and unexpectedly deviates to render assistance.
1.93
The 2006 Report of the Task Force on Sudden Cardiac Death has
defined “on-duty” and “off-duty” in the context of uniformed first responders.[92] On-duty first responders include
an Garda Síochána, the fire brigade and other emergency personnel acting as
first responders in the course of their work. Off-duty first responders,
on the other hand, include off-duty health professionals, including emergency
medical technicians and “members of voluntary and auxiliary organisations who
are used to responding to emergencies.” While the two groups are defined
separately, the Task Force does not appear to distinguish between them in terms
of skill or liability. While the Task Force appears to prefer uniformed
first responder schemes to lay first responder schemes,[93] this preference is based on the
assertion that uniformed first responder schemes are likely to have greater
success than lay schemes.
1.94
Professionals acting outside the course of their employment may not
benefit from mechanisms applicable to professionals acting within the course of
their employment. For instance, professional insurance policies may only
cover those activities which are undertaken pursuant to a contract of
employment. Insurance policies applying to doctors will, however, usually
cover Good Samaritan interventions. Furthermore, the extent to which a
professional person acts outside the course of his or her employment may have
repercussions on the amount of control that may be attributed to his or her
employer, which in turn may determine whether the employer is vicariously
liable for the off-duty act of his or her employee.
1.95
Finally, the extent to which a professional acts outside the course of
his or her employment may affect the standard of care to be applied.
While it may be argued that members of the caring profession, an Garda Síochána
or the Defence Forces have voluntarily joined the profession to undertake
activities for the benefit of society, they are reimbursed and insured for
their altruism. Members acting outside the course of their employment,
however, may not benefit from such safeguards. The Commission
acknowledges that moderating the standard of care in respect of such
individuals may level the playing field.
1.96
Drawing from this
analysis of the general literature, the Commission notes that a volunteer
generally refers to a person who provides a service without obligation and free
of charge. The Commission has also noted that there is a good deal of
overlap between the various categories of volunteers identified in the
literature. In the specific setting of the Attorney General’s request,
the main premises to distinguish between the categories of person specified
would appear to be preparation, skill, activity and, to a lesser degree,
payment. In this regard, the Commission considers that it may be
unnecessary to distinguish between volunteers in general and off-duty members
of certain professions in particular. As to the specific issue of skill, the Commission
considers that this is more relevant in the context of the standard of care
question, discussed in Chapter 3.
1.97
In Section E, the
Commission turns to examine the meaning to be given to the reference to
voluntary activities being for the “benefit of society”.
1.98
The Attorney General’s request refers to those providing voluntary
services “for the benefit of society.” The term is closely related to
other terms, such as “public good”, “common good”, “social utility” and
“desirable activity.”
1.99
The Government’s 2000 White Paper on Supporting Voluntary Activity suggests
that “voluntary” organisations have a number of characteristics in common,
including that it “must be active to some degree in the public arena and their
activity must be aimed, at least in part, at contributing to the public good.”[94] From this, it might be inferred
that the notion of “benefit of society” is a crucial feature in defining the
term “volunteering. In other words, even if an activity is undertaken
free from obligation and without expectation of reward, it will not be
considered a voluntary act unless it is also for the benefit of society.
This view appears to be supported by other commentators. For instance,
the Government defines volunteering as “the commitment of time and energy for
the benefit of society,”[95]
while the Association of Voluntary Service Organisations (AVSO) notes that
volunteering, “…benefits the volunteer, communities and society as a whole.”[96] However, this might be too narrow
an approach.
1.100
An alternative approach is that the simple act of volunteering is
inherently for the benefit of society, as it contributes to “social capital”:
“Volunteering is one way in which social capital and
solidarity is strengthened (Putnam 2000). The involvement of the
individual in volunteering, whether for idealistic, altruistic or functional
reasons, leads to a relational engagement and thereby to the building of social
units, social cohesion and societal sustainability (Donoghue 2001).
Volunteering makes an input to social capital, thereby, which as Healy and Cote
note ‘places social relations, values and norms at the centre of the debate
about economic and social development’ (Healy and Cote, 2001).”[97]
On this view, therefore, irrespective of the motivation,
volunteering inherently contributes to social capital by creating social
units. The Commission observes, however, that this idea fails to consider
the particular types of activity undertaken by these voluntary social units and
their potentially detrimental effects. For instance, a voluntary
paramilitary group is as much a voluntary social unit as is a Tidy Towns
Committee.
1.101
The Commission concludes, therefore, that it must have been the
intention of the Attorney General to limit the application of the request to
those entities engaged in voluntary activities which are for the benefit of
society and therefore may be equated with active citizenship.
1.102
The Commission notes here that the concept that an activity is for the
benefit of society may be taken into account by a court in deciding whether a
duty of care exists under the principles of negligence, in the sense that there
may be public policy reasons to protect the particular activity from the threat
of litigation.[98]
1.103
Secondly, where a particular duty is found to exist, the court may
qualify this by holding that it is owed to society at large rather than to a
private individual.[99] Consequently,
an injured individual will find it difficult to succeed in his or her private
claim. The Commission notes, however, that the European Court of Human
rights has ruled that a blanket immunity for those performing socially useful
functions, such as members of an Garda Síochána, is inconsistent with the right
to a fair trial in Article 6 of the European Convention on Human Rights.[100]
1.104
Thirdly, the concept that an activity is for the “benefit of society”
may be relevant to the court’s decision on the appropriate standard of care to
be applied. The court may look on the activity with more indulgence where
the object of the defendant’s conduct has a high social utility:[101]
“It is, of course, well established that the perceived social
utility of a risk-creating activity is one component of the negligence calculus
helping to decide what precautions the reasonable person would have adopted to
avoid the harm. Thus, we are all entitled to take abnormal risks in an
emergency to avoid life-threatening outcomes…”[102]
1.105
Fourthly, the concept of an activity being for the “benefit of society”
may affect the court’s consideration of the social cost of a finding of
liability. In other words, litigation and findings of liability may deter
individuals from pursuing socially beneficial activities. In Tomlinson
v Congleton Borough Council,[103] which concerned a young man who was
injured after diving into a pond in a public park, it was noted that:
“…it is not… the policy of the law to require the protection
of the foolhardy or reckless few to deprive, or interfere with, the enjoyment
by the remainder of society of the liberties and amenities to which they are
rightly entitled… In truth, the arguments for Mr Tomlinson have involved an
attack upon the liberties of the citizen which should not be
countenanced. They attack the liberty of the individual to engage in
dangerous, but otherwise harmless, pastimes at his own risk and the liberty of
citizens as a whole fully to enjoy the variety and quality of the landscape of
this country. The pursuit of an unrestrained culture of blame and
compensation has many evil consequences and one is certainly the interference
with the liberty of the citizen”.
1.106
The issue of social cost is closely related to the concern that
volunteers may, in the absence of legislative protection,[104] be discouraged from volunteering
because of a perceived risk of being sued. The Task Force on Active
Citizenship noted that the “fear of litigation has become a growing barrier for
many community and voluntary groups”,[105] although it would appear it has not
been a particularly significant deterrent.[106] While it seems that the current
law does not appear to be a particularly strong barrier to volunteerism, the
Commission is aware that many small organisations feel they must take out
expensive public liability insurance, even though it may be that liability
would be unlikely to be imposed in the absence of gross negligence. In
this respect, a Good Samaritan law such as the proposed Good Samaritan Bill
2005 is more likely to be declarative of existing law though it may have
the indirect effect that some aspects of insurance cover currently taken out
might no longer be required.
1.107
The concern relating to the deterrent effect of potential liability was
behind the enactment of section 1 of the UK Compensation Act 2006, which
states that:
“A court considering a claim in
negligence or breach of statutory duty may, in determining whether the
defendant should have taken particular steps to meet a standard of care
(whether by taking precautions against a risk or otherwise), have regard to
whether a requirement to take those steps might-
(a) prevent a desirable activity
from being undertaken at all, to a particular extent or in a particular way, or
(b) discourage persons from
undertaking functions in connection with a desirable activity”.
1.108
The Compensation Act 2006 was enacted as a response to the
concern that the UK was succumbing to a “compensation culture.”[107]
Although this concern was criticised as unfounded, it was acknowledged
that the mere perception was having disastrous effects. The Commission notes
that the 2006 Act has been criticised for confusing the situation, by doing no
more than restating the current common law approach in the UK,[108] and
by introducing the ambiguous term “desirable activity.” [109]
1.109
Some of the concerns which led to the UK Compensation Act 2006
may also have influenced the decision to introduce the Good Samaritan Bill
2005 although, as already discussed, there is also a more specific local
context concerning the desire to prevent sudden cardiac death through the
promotion of defibrillators at public venues and workplaces.[110]
1.110
The UK Compensation Act 2006 could also be described as largely
declarative of existing law in Ireland, especially in light of the decisions of
the Supreme Court in Glencar Exploration plc v Mayo County Council[111]
and Fletcher v Commissioners for Public Works..[112]
In that respect Irish courts already acknowledge the special circumstances of
those who undertake voluntary activities which have a public benefit or public
policy component.
1.111
The available data on the number of people volunteering their services
is insufficient to draw any definitive conclusions as to whether the threat of
legal liability has deterred others from doing so. The Task Force on
Active Citizenship notes that that there has been no drop in the numbers of
people participating in voluntary activities.[113] But there is anecdotal evidence
to suggest that the concern about liability has been raised in the context of
specific voluntary groups, in particular before insurance schemes were
introduced to allay such fears.[114]
1.112
The Commission notes
that the term “benefit of society” may be used to describe those activities
voluntarily performed for the social good and, as a result, constituting acts
of active citizenship. The Commission also notes that existing law may
already, at a number of levels, take account of the extent to which an activity
may be for the benefit of society.
1.113
The question arises
then as to whether the current approach of the law is sufficient to protect
those activities from the risk of litigation. The Commission turns in
Chapter 2 to examine in detail to what extent existing law in Ireland actually
poses a real risk of litigation for those engaged in the various forms of activity
encompassed by the Attorney General’s request to the Commission.
2
2.01
In Chapter 1, the
Commission examined the policy setting against which the Attorney General’s
request and the Good Samaritan Bill 2005 arose. In this chapter,
the Commission responds to two questions posed by the Attorney’s request,
namely, whether the common law recognises a positive duty to intervene and, if
not, whether the common law should be amended to recognise such a positive duty
to intervene. The Commission answers these questions in light of the
policy setting outlined in Chapter 1. In Part B, the Commission examines
the extent to which a positive duty to intervene is recognised in common law
and civil law jurisdictions. In Part C, the Commission reflects upon a
number of situations in which a positive duty to intervene has been imposed by
statute. In Part D, the Commission considers the various strands of the debate
surrounding the imposition of a positive duty to intervene. In Part E,
the Commission expresses its conclusions.
2.02
Even before the 20th
century development of a general legal duty not to injure another person
arising from negligence, the law opposed the
imposition of a positive duty to intervene.[115] This common law position was particularly strong,
extending to situations in which the injured person’s life depended upon an
intervention, and which would not expose the intervenor to any risk or even any
inconvenience. While most may agree that it is morally commendable to assist
a person in need of rescue, the view that there was no duty to intervene was
justified on the ground that the common law was founded upon the principle of
individual liberty and not the principle of altruism.[116] As such, it was argued that to impose a
positive duty to intervene would constitute too great an infringement on an
individual’s liberty.
2.03
The Commission notes
that this remains the position in the aftermath of the development of the
modern concept of negligence. In this context, it is worth
referring to the House of Lords decision of Donoghue v Stevenson,[117] in which Lord Atkin
developed the modern legal duty of care based on negligence, also known as the
“neighbour principle”. In light of the questions posed by the Attorney
General’s request, it is worth quoting the relevant passage in full:[118]
“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. 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.”
2.04
This passage involves a number of elements. First, Lord Atkin
makes clear that he has borrowed the idea of the “neighbour” from the moral -
and religious – principle that we should help our neighbour. He specifically
refers to the “rule” that you should “love your neighbour,” which is a direct
reference to the biblical parable of the Good Samaritan.[119] This parable, in effect, places a
moral demand on all persons to help those who are less well off. It
instructs us to actively volunteer to help our neighbour in need. In Donoghue
v Stevenson, however, Lord Atkin emphasises that it would be completely
inappropriate to translate this moral principle that we should help or
love our neighbour into a legal principle. He emphasises that many
legal principles have a moral basis, but that is clearly different from
imposing legal sanctions for failing to meet private moral principles to which
we might subscribe. To allow such a claim, he explains, would be to
create a precedent that would ground innumerable claims. This would be
contrary to the philosophy of the common law, which limits the circumstances in
which a case may be pursued. In “adapting” the moral obligation to love
your neighbour into a legal principle, Lord Atkin develops two significant
limits.
2.05
First, we have no legal duty to “love” - or help – our neighbour.
As the quotation makes clear, the moral rule that we must love or help our
neighbour becomes the much less onerous duty not to injure our neighbour.
This clearly indicates that we have no legal duty to volunteer to help a person
in need, which is a crucial point in the context of the Attorney General’s
request to the Commission. This approach is reinforced by the comment
made by Lord Atkin at the beginning of the quotation, namely that “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.”
The type of damage that may result from a moral wrongdoing may be difficult or
impossible to quantify, for example, moral injury or offence. In that
sense, while it may be morally objectionable that we would pass by a person in
the gutter and not help them, that person cannot sue us for failing to help
them.
2.06
The second limit involved in the adaptation of the moral principle
concerns the definition of “neighbour.” The moral principle tells us to
help those with whom we have had no previous contact whatsoever, such as those
we pass by in the street or, in the modern era, those we see on our TV
screens. Lord Atkin states clearly that the legal duty not to injure our
neighbour does not extend worldwide, but is limited to those whom we should
reasonably have predicted or foreseen would be injured by our lack of care
which caused them injury. Given the type of injury that may result from a
moral transgression and given that the injury may very well depend on the
sensibilities of the particular injured party, it would be virtually impossible
to predict or foresee who may be injured.
2.07
The argument that the common law does not enforce moral obligations is
just as persuasive today. Indeed, the modern day argument may be even
stronger, given the decision of the Supreme Court in Glencar Exploration plc
v Mayo County Council[120]
(citing Caparo Industries v Dickman[121] with
approval) which inserted an extra step in the test for negligence – the
proximity requirement. This requires that there must be a sufficiently
close relationship between the wrongdoer and the injured party. It is
very likely, however, in a case of moral wrongdoing that the person injured
will be one who is not spatially, temporally or in any other way connected to
the wrongdoer.
2.08
From this analysis of the development of the legal duty of care, the
Commission concludes that the current law does not impose a general obligation
to be a Good Samaritan or to go out of our way to assist a person in
need. Therefore, a bystander will not be held liable for failing to
assist a stranger, even where it is a matter of life or death for the stranger
and the bystander can provide such assistance with little or no inconvenience.
2.09
The Commission notes, however, that the current law does not necessarily
provide a clear answer to other related questions raised by the Attorney
General’s request. For instance, it is not clear what the legal position
is where an individual decides to intervene as a Good Samaritan and causes an
injury to the stranger in the process. Furthermore, it is not clear what
the position is where an individual decides to be a voluntary assistant in a
local community group or national organisation and, in the process, injures one
of the people under his or her care. In the Commission’s view, Lord
Atkin’s analysis in Donoghue v Stevenson indicates that liability might
– or might not – be imposed depending on which approach is taken. On the
one hand, it can be argued that, once a person volunteers to help and in doing
so causes injury, they may be held liable if they were careless and caused
injury to those they should have foreseen would be injured by their
carelessness. The detailed discussion by the Commission in Chapter 3
indicates that, where the involvement of the Good Samaritan or volunteer
becomes more intensive and is based on professional training or qualifications,
the more likely it is that liability will be imposed. On the other hand,
if such persons have no legal duty to be a Good Samaritan in the first place or
to volunteer to help – in the sense that they could (legally) have waved to a
drowning person and let them die – it might appear strange to impose liability
on the rescuer for breaking the arm of the person whose life they have
saved. In this respect, while Lord Atkin does not provide a definitive
answer, it is arguable that this situation comes within his general comment
that “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.”
2.10
Aside from some notable
exceptions, the principle of no-duty-to-intervene is prevalent across the
common law world. This may be contrasted with the approach taken by civil
law jurisdictions, in which a duty to intervene is imposed. In this section,
the Commission provides a general analysis of the position in other
jurisdictions.
2.11
Most states in the United States adhere to the general common law
approach that there is no duty to intervene, whether that translates into a
duty to rescue or a duty to volunteer in normal circumstances. By way of
exception, chapter 604A.01 of the Revised Minnesota Statutes 2007 imposes
an affirmative duty to assist in an emergency as follows:
“A person at the scene of an emergency who knows that another
person is exposed to or has suffered grave physical harm shall, to the extent
that the person can do so without danger or peril to self or others, give
reasonable assistance to the exposed person. Reasonable assistance may
include obtaining or attempting to obtain aid from law enforcement or medical
personnel. A person who violates this subdivision is guilty of a petty
misdemeanour.”
It is worth noting that this type of provision is both
exceptional in terms of other jurisdictions and, in any event, is limited in
scope.
2.12
Australia, for the most part, also adheres to the general common law
approach that there is no duty to intervene, whether that entails a duty to rescue
or a duty to volunteer. There have been some deviations from this
approach.
2.13
In the first place, Australian courts may find a public authority under
a duty to perform a particular function under the theory of general
reliance. Under this theory, the public authority may be held liable to a
private individual for an injury resulting from a failure to perform the
particular function with which it has been entrusted. The reason for this
is that by virtue of the nature of the authority and the character of the
function, society as a whole may reasonably rely on its performance. The
rule was stated in Sutherland Shire Council v Heyman: [122]
“There will be cases in which the plaintiff’s reasonable
reliance will arise out of a general dependence on an authority’s performance
of its function with due care, without the need for contributing conduct on the
part of a defendant or action to his detriment on the part of the
plaintiff.”
2.14
This may be contrasted with the approach followed in Ireland and
England, which refrains from imposing a positive duty to act on public
authorities. Liability will normally not arise unless the public
authority is responsible for causing more damage than would have occurred
without its intervention.[123]
2.15
In the second place, the Australian courts have imposed a positive duty
to intervene on doctors. In Lowns v Woods,[124] a
doctor was found liable for refusing to treat a boy, who was having a serious
epileptic seizure, when the doctor had no reasonable excuse for his
refusal. This led to a suggestion that there should be a duty on persons
for whom rescue is the very thing for which they are trained.[125]
2.16
Quebec is the only province in Canada to have enacted legislation which
provides for an affirmative duty to rescue. Unlike France, discussed
below, Quebec does not base its duty to rescue on its Civil Code 1991.[126] Instead,
article 2 of the Charter of Human Rights and Freedoms 1975 obliges every person
to render emergency assistance to one whose life is in peril. This may be
done by personally intervening in the situation or by procuring emergency
assistance from another source. This duty does not apply where it would
pose a risk to the person in peril or to third parties or for any other
reasonable reason. Even though article 2 of the Charter would appear to
limit the duty to rescue to situations in which the victim’s life is in peril,
there is an argument that the “bon père de famille”, the French equivalent of
the reasonable person, would assist in situations other than those where the
life of the victim is, strictly speaking, in peril.[127]
2.17
The French equivalent to the law of tort, le droit des obligations
délictuelles, is set out in articles 1382-1386 of the French Civil Code. Articles 1382
and 1383 are of particular importance, laying down the general rules for
imposing liability for personal negligence. Article 1383 of the French Civil
Code states that everyone is liable for the harm which he or she has caused
not only by his or her deed, but also by his or her failure to act or
his or her lack of care.
2.18
This liability may be imposed for acts of omission. It is argued
that while French jurists distinguish between omissions in action, such as the
classic example of the driver failing to apply the brakes, and pure omissions,
such as the failure of the bystander to assist the injured stranger, the French
courts do not. Some jurists suggest that even where the case is one of
pure omission, the courts may impose liability where a “bon père de famille”
would have intervened in similar circumstances.
2.19
In any case, under the concept of the unity of criminal and civil
faults, the French legal system regards the commission of any criminal offence
which causes harm to another as a fault for the purposes of articles 1382 and
1383. Since article 63 paragraph 2 of the Criminal Code makes it
an offence to deliberately fail to help a person in peril where there is no
risk to oneself or others in doing so, such a failure may give rise to civil
liability under article 1383 of the Civil Code.[128] In 1947, the Tribunal
Correctionnel d’Aix awarded damages to the plaintiff, who had nearly drowned
when he fell through ice into a deep canal. The defendant, the
plaintiff’s father-in-law, had walked away from the scene after refusing to assist
a third person who tried to rescue the plaintiff by handing him an iron bar to
which he might cling.[129]
2.20
The German equivalent of negligence can be found in section 823 of the German
Civil Code (BGB):[130]
“A person who, intentionallyor negligently, unlawfully
injures the life, body, health, freedom, property or other right of another
person is liable to make compensation to the other party for the damage arising
from this.”
2.21
The same obligation is placed upon a person who infringes a statute
intended for the protection of others. If, according to the provisions of
the statute, an infringement of this is possible even without fault, the duty
to make compensation arises only in the event of fault.
2.22
It would seem that no distinction is made in this section between
liability for feasance and liability for nonfeasance. However, when interpreting
the requirement of unlawfulness in section 823, the courts have taken a
different approach towards actions on the one hand and inaction on the
other. If one of the protected interests has been infringed through a
positive act, this act is presumed to have been unlawful. However, if one
of the protected interests has been infringed by inaction, the inaction is only
regarded as unlawful if it violates a duty to act.
2.23
In a similar approach to that taken by France, section 823 BGB may be
invoked where a person is injured as a result of the violation of a statutory
provision. Section 323 (c) of the German Criminal Code (StGB)
penalises anyone who:
“… fails to render assistance in case of accident, common
danger or emergency, although such assistance was needed and could have been
expected from him under the circumstances, especially since he could have
rendered it without placing himself in significant danger and without violating
any important duties…”[131]
2.24
While it is likely that this provision was intended to give rise to a
private law duty under section 823 (2) BGB, the prevailing legal opinion
now is that it was not intended to protect individual persons but society as a
whole.[132]
2.25
The Commission notes
that the common law has generally refrained from imposing a positive duty to
intervene. This approach is prevalent in most common law jurisdictions
subject to some isolated exceptions in the United States, Australia and
Canada. This may be contrasted with the approach taken by most civil law
jurisdictions. The Commission notes, however, that while the common law
is against imposing a positive duty to intervene, it is less clear as to what
the consequences of voluntarily intervening are. These will be discussed
in greater detail in Chapter 3. Section C will now consider the extent to
which a positive duty to intervene in an emergency may already exist.
2.26
In this section, the
Commission notes that there are a number of statutory duties imposing positive
obligations on individuals. The main areas of concern appear to be those
duties imposed on professional rescuers and those duties imposed on individuals
involved in road traffic accidents.
2.27
The Commission notes that for those professional rescuers governed by
statute, a distinction is often made between a statutory power of discretion
and a statutory duty.[133]
In the case of a statutory power of discretion, a duty to intervene does not
usually arise, as this would impede the freedom of the particular body to
choose how to manage its resources.[134] In the case of a statutory duty,
the duty may be one which is owed to the public at large rather than to the
particular individual.[135] The
purpose of the particular statute may also be a deciding factor.[136]
2.28
Even if there is an intervention in an accident or emergency situation,
the Commission observes that the rescue body is not generally held to have
voluntarily assumed responsibility for the rescue. Thus, even if the
rescue is performed carelessly or negligently, the body will not be held
liable, unless it causes damage which would not have occurred but for its
intervention. In Capital and Counties plc v Hampshire
County Council,[137]
the English Court of Appeal considered whether a fire brigade could be said to
have assumed responsibility when it arrived at the scene of a fire. The
Court held that by taking control of operations, the senior fire officer was
not to be seen as voluntarily assuming responsibility for the particular incident,
regardless of whether the owner of the premises relied on the fire
brigade. The Court held that a fire brigade does not enter into a
sufficiently proximate relationship with the owner or occupier of the premises,
giving rise to a duty of care, merely by attending at the fire ground and
fighting the fire. This is so even though the senior officer actually
assumes control of the fire fighting operations. The Commission notes
that this principle has also been applied to a case involving the coastguard.[138]
2.29
The position may be different with regard to those rescuers considered
to be part of the health services. From the decision of the English Court
of Appeal in Kent v Griffiths,[139] it would seem that ambulances come under a duty
of care. Furthermore, this duty of care is owed to the particular
individual rather than to the public at large. The doctrines of
assumption of responsibility and detrimental reliance appear to have had some
influence in the decision. In the absence of a justifiable excuse, such
as a conflict of resources, the ambulance service may be held liable for
failing to turn up promptly or failing to turn up at all. The Commission
notes that a similar conclusion was reached in Ireland in respect of
doctors. In the High Court decision O’Doherty v Whelan,[140]
O’Hanlon J held that in the particular circumstances of the case the defendant
doctor had been negligent in failing to make a home visit to her patient. This
may be compared with the Australian case of Lowns v Woods,[141]
in which a doctor was found liable for failing to treat a young boy who
was not his patient. The court based its decision on a finding that there
was physical, circumstantial and causal proximity between the parties. In
effect, this decision may have gone further than Kent v Griffiths, in
that the doctor was under a duty to respond even though he had not agreed to
attend the boy.
2.30
The Commission notes
that, unlike many of its common law counterparts, Ireland does not impose a
duty to intervene in situations involving road traffic accidents. The
nearest obligation that exists is a duty to report an accident involving
personal injury to the Garda Síochána under section 106 of the Road Traffic
Act 1961.
2.31
Many States in the US impose a duty on drivers involved in road traffic
accidents to assist endangered persons. While such a duty does not appear
in the statute books of Ireland or England, it would be inaccurate to suggest
that it is a complete aberration of the common law approach. To impose a
duty on a person who is responsible for creating a risk which has resulted in
injury is not an unheard of phenomenon. Section 4202(a) of the Delaware
Code 1953 is
a clear illustration of this:
“The driver of any vehicle involved in an accident resulting
in injury or death to any person shall immediately stop such vehicle at the
scene of such accident. The driver shall give the driver’s name, address
and the registration number of the driver’s vehicle and exhibit a driver’s
license or other documentation of driving privileges to the person struck or
the driver or occupants of any vehicle collided with and shall render to any
person injured in such accident reasonable assistance, including the carrying
of such person to a hospital or physician or surgeon for medical or surgical
treatment if it is apparent that such treatment is necessary or is requested by
the injured person, or by contacting appropriate law enforcement or emergency
personnel and awaiting their arrival.”
2.32
It would appear that the majority of provinces in Canada have enacted
some form of legislation, obliging drivers involved in accidents to render
assistance to injured people. For example, section 200 (1) of the Ontario
Highway Traffic Act obliges
every person in charge of a vehicle or street car that is directly or
indirectly involved in an accident to remain at or immediately return to the
scene of the accident, to render all possible assistance and to give his or her
particulars, in writing, to anyone sustaining loss or injury, any police
officer or witness. S 200(2) imposes a criminal sanction for breach of
section 200(1). Similarly, article 168 of the Highway Safety Code of
Quebec obliges
the driver of a road vehicle involved in an accident to remain at or
immediately return to the scene of the accident and render the necessary
assistance to any person who has sustained injury or damage.
2.33
Employers have
statutory duties under the Safety, Health and Welfare at Work Act 2005
which go beyond the duty to act in a reasonably careful manner. The
duties in sections 8, 12 and 15 of the 2005 Act extend to the obligation to
avoid omissions which are likely to cause injury both to employees and persons
other than employees who may be affected by the employer’s activities.
This imposes a positive obligation to intervene to put in place certain
precautions and preventative measures, and these measures must be set out in
writing in a safety management document called the Safety Statement, which
section 20 of the 2005 Act mandates must deal with the measures concerning both
employees and persons other than employees.
2.34
In addition, Chapter 2,
Part 7 of the Safety, Health and Welfare at Work (General Application)
Regulations 2007, which were made under the 2005 Act, sets out duties
on employers concerning the provision of first-aid at all places of work.
While the 2007 Regulations do not explicitly require the provision of automated
external defibrillators (AEDs)
in all places of work, a Guide to the 2007 Regulations published by the Health
and Safety Authority (the regulatory body for the 2005 Act) states:
“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 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.”[142]
This Guide to the 2007 Regulations, published by the regulatory body for
the Safety, Health and Welfare at Work Act 2005 is, in the Commission’s
view, an acknowledgement of the increasing significance attached to the importance
of automated external defibrillators (AEDs) in general. The
specific reference in the Guide to the prevention of sudden cardiac death must
be taken to be an implicit echoing of the views of the 2006 Report of the
Task Force on Sudden Cardiac Death, discussed by the Commission in Chapter
1, and which also influenced the publication of the Good Samaritan Bill
2005.
2.35
The Commission notes
that certain legislative provisions in common law jurisdictions may involve the
imposition of a positive duty to intervene in certain defined
circumstances. First, professional rescuers may come under a positive
duty to intervene where they may be considered members of the health
services. Second, some common law jurisdictions, (though not Ireland),
impose a positive duty on drivers involved in an accident to assist the
injured. Finally, safety at work legislation may impose a duty to act in
the sense of imposing a duty that penalises omissions and there is recent acknowledgement
in relevant guidance issued by the Health and Safety Authority of the relevance
of automated external defibrillators (AEDs) in a workplace setting.
2.36
As to whether the law
should recognise a general positive duty to intervene, there are a number of
persuasive arguments for and against this policy. Bearing this in mind,
the Commission emphasises the setting outlined in Chapter 1 concerning
volunteerism in general.
2.37
The Commission notes
that a number of intertwining arguments, both theoretical and practical, have
been advanced opposing the imposition of a positive duty to intervene.[143]
While they have been expressed, almost exclusively, in the context of a
positive duty to act as a Good Samaritan, they are of undoubted relevance with
respect to volunteers as well.
2.38
As was noted above, one of the most prevalent arguments against the
imposition of a positive duty concerns the principle of altruism. The
rationale behind this argument is that the duty to intervene is morally
motivated. Thus, it has been asserted that it is inappropriate to set a legal
sanction to enforce a moral obligation. Since altruism entails voluntary
action in favour of another, it is argued that to transform the duty to rescue
into a legal obligation would be to deprive it of its altruistic quality.
2.39
It has been argued that this approach is consistent with the
individualistic spirit of the common law.[144] The common law endeavours to
protect the personal liberty of each individual as far as possible and only
those restrictions which are necessary to enable peaceful co-existence are
permitted. In other words, common law encourages the individual to pursue
his or her desires, without requiring him or her to benefit another.
2.40
It is argued that the imposition of a positive duty to rescue would
constitute too great an infringement on personal liberty.[145] While a negative duty permits the
individual to do everything except for the prohibited conduct, a positive duty
prevents the individual from doing anything but the required activity. It
is also noted that a positive duty may require more of the individual than a negative
duty, in the sense that a negative duty will only oblige an individual to
refrain, while the positive duty will require the individual to take positive
steps.
2.41
There may also be practical concerns about imposing a positive duty to
intervene. Thus, the common law distinguishes between misfeasance and
nonfeasance.[146]
While legal liability may flow from an act of misfeasance, it may not flow from
an act of nonfeasance. It is argued that the distinction here is between
active misconduct and passive inaction. In a case of misfeasance, the
actor causes a new risk, while in a case of nonfeasance the actor fails to
confer a benefit. In the context of rescue, the term misfeasance suggests
that the actor has some part to play in the creation of the risk, while the
term nonfeasance suggests that the actor fails to abate a risk that is
independently created. In terms of duty, misfeasance may be translated as
the breach of a negative duty, while nonfeasance is the breach of a positive
duty. In other words, misfeasance is a breach of the duty not to do
something, while nonfeasance is a breach of the duty to do something in particular.
Since the duty to rescue would constitute a positive duty rather than a
negative duty, it is argued that the common law has no capacity to recognise it
as legally enforceable.
2.42
It has been asserted that one who fails to comply with a positive duty
to intervene cannot be said to be causally responsible for damage accruing.[147]
While one who fails to comply with a negative duty may be understood as
creating a new risk of harm, one who fails to comply with a positive duty may
only be understood as failing to prevent a harm from occurring. In the
context of a rescue, it is argued that the bystander only fails to confer a
benefit on the stranger, in the sense that he or she fails to abate an
independently arising harm.
2.43
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. This would go against the philosophy of negligence, which
seeks to redress those situations in which damage has been caused.
2.44
While this may appear convincing, the Commission notes that it has also
been asserted that there may be some confusion between the issue of causation
and the issue of duty. From this it follows that inaction is just as
likely to give rise to harm as positive action. However, if there is no
duty to act, then a failure to act will not give rise to legal liability.
2.45
While it may be relatively easy to identify those responsible in a case
of misfeasance, the same may not be said for cases of nonfeasance.[148]
In any scenario involving nonfeasance or passive inaction, it is likely that
there may be more than one person guilty of failing to act. In contrast
to cases of misfeasance, cases of inaction do not afford the opportunity of analysing
whose inaction is most responsible for the harm.
2.46
As against this argument, there is nothing to prevent a case being taken
against one tortfeasor, who may then bring an action against any other
tortfeasor for contribution.
2.47
Some writers have
advocated a modified stance, in the sense of imposing a positive duty to
conduct an “easy rescue.”[149]
In support of this, it has been noted that there has been an erosion of the
general principle of no-duty-to-intervene and that a rescuer may now
recover damages for injuries sustained.[150] In addition, it has been asserted
that the defences of voluntary assumption of risk and novus actus interveniens
are no longer available.[151]
While Irish law may not have gone so far, it would certainly seem that the
courts are less likely to consider these defences unless it can be shown that
the rescuer has acted in some reckless or wanton way.[152] Furthermore,
it has been argued that there is an ever-increasing number of situations in
which a duty to intervene is being found on the basis of some new special
relationship.[153]
It has also been noted that, in practice, a rescuer will rarely be found
liable, unless he or she has acted wantonly either in his or her assessment of
the situation or in his or her reaction to the situation.
2.48
In consequence, it has
been argued that there may be room to recognise a modified duty to
intervene. Such a duty might require the bystander to undertake some
activity to assist the stranger, where that activity does not unduly
inconvenience the bystander. The ease with which the act may be performed
may be analysed by reference to the nature of the particular activity.
For instance, where all that is needed is a phone call to the emergency
services, it may be expected that a bystander with a mobile phone could easily
perform this task.[154]
The ease with which the task may be performed may also be adjudged with
reference to the skill of the particular bystander. For example, a
trained paramedic may be in a much better position to administer CPR to an
injured stranger than an inexperienced bystander.
2.49
The Commission notes
that such a duty to intervene, 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.
2.50
The Commission has
concluded that the arguments against the imposition of a positive duty to
intervene have a great deal of weight, in particular because they are
consistent with the general basis of the duty of care in negligence which has
not been criticised in any significant respect. Some commentators have
taken a modified stance in advocating an “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. While it may be more
reasonable to expect an individual to conduct an easy rescue, the Commission notes
that there is no greater legal basis for such an obligation than there is for a
full blown duty to rescue. In this regard, the Commission is particularly
concerned about the uncertainty that the operation of such a duty might
entail.
2.51
On this basis, the
Commission has concluded that the arguments against imposing a duty to
intervene outweigh any which would impose a general duty. The Commission
has concluded that existing statutory duties to intervene, such as those which
apply in connection with professional rescuers, road traffic accidents or the
duties of employers for the safety of their employees and the public, are best
left to individual development by the Oireachtas, taking into account the
specific settings in which they arise.
2.52
The Commission
provisionally 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.
3
3.01
In Chapter 1, the
Commission discussed in some detail the policy setting against which the
Attorney General’s request was received and against which the Good Samaritan
Bill 2005 was constructed. In Chapter 2, the Commission noted that
current law refrains from imposing any general positive duty to intervene as a
Good Samaritan or, indeed, as a volunteer of any kind and provisionally
recommended that there should be no change in this position. The
Commission also noted, however, that this did not resolve the issue of whether
an individual, acting as a Good Samaritan or volunteer, comes under a duty to
act with reasonable care. The Commission now turns to examine this aspect
of the Attorney General’s request. In Part B, the Commission examines the
position of Good Samaritans. In Part C, the Commission examines the
position of voluntary rescuers, while in Part D, the Commission deals with
voluntary service providers. In Part E, the Commission sets out its
conclusions.
3.02
Drawing from the
discussion in Chapter 1, the Commission notes that the term Good Samaritan may
be defined broadly as:[155]
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).
Thus, the Good Samaritan might be an unskilled passerby, an
off-duty voluntary rescuer, an off-duty voluntary service provider or an
off-duty professional.
3.03
The Commission emphasises that situations involving the Good Samaritan
are relatively rare.[156]
Any provisional recommendations, therefore, will only apply to a small number
of cases. In this respect, it is useful to describe a scenario in which
the Good Samaritan is likely to intervene. For instance, let us consider
a situation in which a stranger is clinging to a floating log in the middle of
a lake. The stranger has no means of getting to shore and so requires
outside intervention to abate the risk that he or she faces. It is in the
context of such a situation that the Attorney General inquires as to the appropriate
duty of care and standard of care to be applied to an individual intervening as
a Good Samaritan.
3.04
In Glencar Exploration v Mayo County Council[157] and Fletcher v Commissioner of
Public Works,[158] the Supreme Court has stated that to
establish a duty of care it must be shown that:[159]
· There
is proximity between the alleged duty holder and the injured person;
· The
injury caused was foreseeable by the alleged duty holder;
· It
is just and reasonable to impose a duty.
3.05
In this three-stage test, the concepts of “proximity” and
“foreseeability” continue to be important considerations, but new weight is
given to the third element in determining whether it is just and reasonable to
impose a duty of care. This third element is sometimes referred to as the
policy factor which, in a previous test applied by the courts,[160]
had a less important default position. The added importance given to the
third policy, factor is of great significance in the context of the Attorney
General’s request.
3.06
The Commission notes
that in order to establish a duty of care, it must first be shown that there is
a relationship of proximity between the Good Samaritan and the stranger.[161]
While it has been asserted that the Good Samaritan voluntarily assumes
responsibility by intervening,[162] it is not always clear what is meant by
this expression.[163] It would seem,
however, that the essential elements are those laid down in Hedley
Byrne & Co Ltd v Heller & Partners Ltd.[164] In that case, it was held that a person
may come under a duty of care in favour of another, where the person
voluntarily uses a skill in favour of that other, in circumstances where the
person knows or ought to know that that other will reasonably rely on the skill
being exercised.
3.07
Applied to the rescue scenario, the Good Samaritan must voluntarily
intervene in favour of the stranger, the stranger must rely on this voluntary
intervention and the Good Samaritan must or should know that the stranger is so
relying. While this may aptly describe those rescue situations in which
there are relationships of undertaking and reliance, separate conditions may
apply to rescue situations involving relationships of control and
dependence.
3.08
The Commission turns first to consider those rescue situations in which
the prevailing relationship is one of undertaking and reliance.[165] In the scenario described above,
the Good Samaritan may voluntarily intervene to assist the stranger
clinging to the log and the stranger may rely on this voluntary
intervention to extract him or her from the predicament. The Commission
notes the importance, therefore, of understanding what is meant by the terms
“voluntary intervention” and “reliance.”
3.09
The principal ways in which a Good Samaritan may voluntarily intervene
in a rescue situation are by making a promise or performing an act in favour of
the stranger.
(a)
Promise
3.10
For example, where the Good Samaritan throws a rope to the stranger
clinging to the log and says that he or she will pull the stranger to safety if
the stranger grabs the rope, this is an express promise. If the Good
Samaritan, on the other hand, throws the rope in the direction of the stranger
and merely advises the stranger to grab the rope, it might be implied from this
that the Good Samaritan intends to pull the stranger to safety.
3.11
The law does not generally recognise a statement of intention as legally
enforceable, unless made in the context of contractual relations. Thus,
the Good Samaritan may justifiably change his or her mind at any stage.
Alternatively, the execution of the promise may be frustrated. While it
may seem callous to suggest that the Good Samaritan could promise to rescue a
stranger and then change his or her mind, it is readily apparent that a promise
to rescue may not always meet with a successful outcome. This raises the
issue as to the exact nature of the promise.
3.12
The promise to rescue may be more aptly described as a promise to
endeavour rather than a promise to achieve a successful outcome. This is
an important distinction as the nature and content of a promise to endeavour,
rather than to achieve a successful outcome, is less specific and so, less
likely to lend itself to becoming an enforceable obligation. With a
promise to endeavour, every minute effort made by the Good Samaritan may count
in his or her favour. In contrast, where the Good Samaritan promises to
achieve a successful outcome, he or she will not fulfil his or her promise
until he or she saves the stranger. Furthermore, where the Good Samaritan
promises to endeavour, he or she concedes that he or she may only be capable of
stabilising or abating the risk, while a promise to achieve a successful
outcome suggests that the Good Samaritan must complete the rescue operation.
(b)
Voluntary Act
3.13
A voluntary intervention may simply mean that the Good Samaritan has
voluntarily undertaken a particular course of conduct in favour of the
stranger. By using the term “voluntarily”, it should be understood that
the Good Samaritan has intentionally acted for the benefit of the
stranger. Situations involving a Good Samaritan unintentionally acting in
favour of the stranger and situations involving a Good Samaritan who, despite
his or her best efforts, fails to avoid acting in favour of a stranger are extremely
rare.
3.14
In the context of a rescue situation, there is a wide range of
activities that a Good Samaritan may potentially undertake in favour of the
stranger. Generally, the conduct pursued by the Good Samaritan will
relate directly to the injury, if any, suffered by the stranger and the skill
that the Good Samaritan may contribute. First, the Good Samaritan may set
himself or herself apart from the situation, by alerting the predicament of the
stranger to a third party, such as the emergency services. Second, the
Good Samaritan may involve himself or herself to some extent, by alerting the
stranger to an imminent risk. Third, the Good Samaritan may become
directly involved by physically intervening in the predicament of the stranger.
It may be noted at this point that there is a greater chance that the Good
Samaritan will cause an injury to the stranger the more direct and physical his
or her intervention becomes.
3.15
The Commission queries whether the issue of reliance is really a
necessary condition for those voluntary interventions constituted by a
voluntary act. The Commission accepts, however, that reliance may be a
necessary condition where the voluntary intervention is constituted by an act
that is unintentionally in favour of the stranger.
(c)
Reliance
3.16
The law is reluctant to
recognise a relationship of proximity in every case where there is a voluntary
intervention in favour of one party. This is so, irrespective of
whether the voluntary intervention is constituted by a promise or a voluntary
act. Under the Hedley Byrne principle,[166] the Commission observes that the
additional element of reliance may also be required. If by voluntarily
intervening the Good Samaritan induces the stranger to rely upon him or her,
this may give rise to a proximate relationship. This raises the issue as
to what constitutes reliance in the context of a rescue situation.[167]
3.17
In general terms, reliance may mean that the stranger has, in some way,
changed his or her position on faith of the intervention made by the Good
Samaritan. In this sense, a proximate relationship does not arise when
the Good Samaritan throws the rope to the stranger clinging to the log, but
rather when the stranger swims towards the rope in order to grab a hold.
However, reliance alone may not be sufficient. Under the Hedley Byrne
principle, it must also be shown that the Good Samaritan knows or ought to have
known that the stranger would rely on the Good Samaritan’s intervention.
This will only be the case in those situations where reliance by the stranger
is objectively reasonable.
3.18
In the context of a rescue, however, what may be considered objectively
reasonable may be a far cry from what may ordinarily be considered objectively
reasonable. First, in any rescue situation it is likely that the
stranger’s capacity for reasoned judgment will be lower than usual.
Injury, illness, panic and exhaustion are factors which are likely to impede
the stranger’s normal thought processes. Since the stranger may find
himself or herself in a life or death situation, instinct may compel the stranger
to undertake a course of conduct, which is not without inherent risks but
offers him or her a glimmer of hope. The identity of the Good Samaritan
may also be a crucial factor in this analysis. Where the Good Samaritan
is skilled, for example as a doctor, the stranger may be more inclined to rely
on his or her advice. Other factors may need to be taken into account,
such as the alternative courses of conduct open to the stranger.
3.19
Assuming that the stranger’s reliance is reasonable, a question arises
as to the exact nature of that reliance. On the one hand, reliance may be
non-detrimental in the sense that the stranger is no worse off, having changed
his or her position on faith of the Good Samaritan’s intervention. For
instance, the Good Samaritan may throw a rope to the stranger, advising him or
her to tie the rope to the log so that the Good Samaritan may pull him or her
to shore. If the rope breaks before the Good Samaritan can complete the
operation, the stranger’s position is no worse than it was before the Good
Samaritan’s intervention, so long as the stranger is still clinging to the log.
3.20
The same might hold true even where the stranger is at risk of imminent
injury or death. For instance, let us imagine a situation in which the
stranger is no longer clinging to the log and is drowning. The Good
Samaritan may throw a rope to the stranger and attempt to pull him or her to
shore. If the rope breaks before the Good Samaritan can complete the
operation and the stranger drowns, the stranger’s position is technically no
worse than it would have been before the Good Samaritan intervened.
3.21
A question then arises regarding situations in which injury or death is
not an imminent threat, but the ultimate consequence of non-intervention.
For instance, the Good Samaritan may throw a rope to the stranger, who is
clinging to a log. If no intervention is made, the stranger will cling to
the log until he or she is too weak to hold on. The Good Samaritan may
advise the stranger to tie the rope to the log so that the Good Samaritan may
pull him or her to shore. If the force of the pull causes the log to snap
and the stranger drowns, a question arises as to whether the Good Samaritan may
be held liable for speeding up an inevitable consequence. It may be the
case that since the stranger was not under an imminent threat of death, the
Good Samaritan should have spent extra time planning the rescue operation.
3.22
The law is reluctant to recognise non-detrimental reliance as a ground
for holding the Good Samaritan liable for his or her intervention. This
is so because non-detrimental reliance implies that the stranger has not
succumbed to any injury or damage because of the reliance. Where there is
no injury or damage, there is no claim in negligence. This raises a
question in respect of situations in which there is no alternative to the Good
Samaritan’s intervention or a certain amount of damage is necessary to its
overall success.
3.23
The law is more receptive to the idea of detrimental reliance.
Detrimental reliance suggests that the stranger changes his or her position for
the worse, on faith of the Good Samaritan’s intervention. The question
then arises as to how detriment is assessed. On the one hand, detriment
may suggest that the stranger is in a worse position than he or she was just
before the Good Samaritan intervened. For instance, the Good Samaritan
may throw a rope to the stranger and advise the stranger to let go of the log
and hold on to the rope instead. If, in the meantime, the log floats away
and the rope snaps, it may be asserted that the stranger is in a worse position
than he or she would have been had the Good Samaritan not intervened. In that
sense, the Good Samaritan’s intervention has caused the stranger to be in a
position of greater risk.
3.24
On the other hand, detriment may suggest that, on faith of the Good
Samaritan’s intervention, the stranger sacrifices an alternative option.
In this sense, the damage to the stranger may simply be the loss of an
alternative. However, such a conclusion must surely depend on whether the
alternative was likely to inspire a more successful outcome.
Distinguishing options on the basis of their potential for success may not
always be an easy task. Firstly, such an assessment may require excessive
use of the faculty of hindsight. Furthermore, the more obvious it is
which option has the greatest potential for success, the less realistic the
scenario becomes. It is unlikely, for instance, that the stranger will
choose the option proffered by the Good Samaritan where it is clearly less
favourable. Finally, it should be noted that some interventions may be
considered less favourable in the sense that while they have a greater
potential for success they involve a greater risk of injury. For
instance, in saving the stranger’s life by using the rope to pull him or her to
shore, the Good Samaritan may inadvertently dislocate the stranger’s shoulder.
3.25
Thus, the Commission notes that where the voluntary intervention is a
promise, it is most likely that the stranger will rely, in some way, on the
Good Samaritan. Where the voluntary intervention is a voluntary act, the
issue of reliance may depend on the nature of the act. For instance,
where the Good Samaritan informs a third party of the stranger’s predicament,
it is likely that the stranger will rely on the third party rather than the
Good Samaritan. Where the Good Samaritan intervenes by alerting the
stranger to an imminent risk, it might be asserted that the Good Samaritan has
maintained a sufficient amount of distance to dispel any argument in relation
to reliance. However, where the Good Samaritan directly and physically intervenes
into the predicament of the stranger, it is most likely that the stranger will
rely on the Good Samaritan.
3.26
Not all rescue situations involve relationships of undertaking and
reliance. Whereas such rescue situations anticipate a stranger choosing
to rely on the Good Samaritan’s intervention, it is not difficult to imagine a
number of rescue situations in which the stranger is unable to choose, either because
there is no alternative to the Good Samaritan’s intervention or because the
stranger is incapable of making a choice, such as where the stranger is
unconscious. Such rescue situations may be more aptly described as
involving relationships of control and dependence, where the Good Samaritan
asserts control over the stranger’s predicament. The law may be reluctant
to recognise such relationships as giving rise to a duty of care.[168]
It is important, then, to address the meaning of the terms control and
dependence in the context of the rescue situation.
3.27
Like the term “voluntary intervention”, a number of meanings may be
attributed to the term “control.” A broad interpretation is that the term
control relates to the respective powers of the parties involved.
Relative to each another, the Good Samaritan occupies a comparatively strong
position while the stranger occupies a comparatively weak position. Of
the two parties, the only one who is capable of asserting some measure of
control over the situation is the Good Samaritan.
3.28
A narrower interpretation of the term control seems to suggest that the
Good Samaritan intentionally takes charge of the situation. This may be
illustrated by an express statement of intention or may be inferred from the
conduct of the Good Samaritan. In line with this interpretation, the Good
Samaritan may assume initial control of the situation. For instance, the
Good Samaritan may alert the stranger to an imminent risk, affording the
stranger the opportunity to assert control over the situation.
Alternatively, the Good Samaritan may initiate the rescue operation by alerting
a lifeguard to the predicament of the stranger. In this sense, the Good
Samaritan is only in control of the situation for a specific period of
time. Control over the situation may pass to the lifeguard, or whoever,
once he or she has been informed. Alternatively, the Good Samaritan may
assume total control over the situation, sometimes to the extent of excluding
the efforts of others. In this way, the Good Samaritan may give the
impression that he or she is capable of carrying out the rescue operation
alone. For instance, the Good Samaritan may claim to have a particular
skill that puts him or her in the best position to render assistance.
3.29
Where the Good Samaritan asserts control, it is most likely that the
stranger will be in a situation of dependence. As such, the dependent
stranger may be distinguished from the reliant stranger.
3.30
First, the dependent stranger may have no choice but to succumb to the
will of the Good Samaritan. This may be because there are no alternatives
to the Good Samaritan’s intervention. Alternatively, it may be because
there are no real alternatives to the Good Samaritan’s intervention, in the
sense that the alternative may entail imminent injury or death. The
Commission notes that common sense would seem to indicate that the natural
instinct of most people would be to choose the method that provides at least
some chance of success over injury or death. Thus, it may be more
accurate to say that the stranger acts out of natural impulse rather than
choice.
3.31
The situation may be slightly different where the stranger is in a
position which poses a threat of ultimate injury or death, rather than imminent
injury or death. In this sense, the stranger may have some time at his or
her disposal before such an eventuality occurs. It is quite conceivable,
therefore, that the stranger might choose to do nothing for the time being
rather than opt for the method proposed by the Good Samaritan.
3.32
Even where a real choice is available to the stranger, there may be many
rescue situations in which the stranger is incapable of choosing. In
other words, the stranger may be in a position that prevents him or her from
absorbing any representation made by the Good Samaritan and from changing his
or her position on faith of it. This is likely to be the case where the
stranger has become incoherent or has fallen unconscious. In such a
situation, it may be asserted that the Good Samaritan acts on behalf of the
stranger.
3.33
By intervening in either of these situations, the Good Samaritan must be
aware of the power that he or she holds over the fate of the stranger. In
particular, it must be clear to the Good Samaritan that his or her conduct and
decisions will have a direct impact on the well-being and life of the
stranger. Furthermore, the Good Samaritan must know that by intervening,
he or she may aggravate an existing condition or create a new risk of
harm. The voluntary intervention, then, may signify that the Good
Samaritan appreciates the gravity of the situation and accepts to take
responsibility for it. It is unclear, however, whether “responsibility”,
in this sense, may be equated with “legal responsibility.”
3.34
Once it has been established that there is a relationship of proximity
between the Good Samaritan and the stranger, the next question to be answered
is whether it was reasonably foreseeable that the intervention of the Good
Samaritan would injure the stranger.[169] If it can be
shown that the Good Samaritan knew or ought to have known that his or her
intervention would injure the stranger, then it might be asserted that the Good
Samaritan ought to have modified his or her conduct.[170] The test in this respect is
objective, in the sense that the law will not look to the actual knowledge of
the Good Samaritan, but to the knowledge that would be expected of a reasonable
person in similar circumstances.[171] Furthermore, since the issue of
foreseeability ultimately depends on the circumstances of the particular case,
this section involves a broad discussion around the relevant factors.
3.35
First, the risk of injury may be greater, and therefore more
foreseeable, where the stranger is in a particularly perilous situation or has
already incurred a certain amount of damage.[172] Related to this,
foreseeability is whether the Good Samaritan is privy to knowledge of the
circumstances which have given rise to the stranger’s predicament.
Second, the chance of injury arising may also depend on the type of
intervention undertaken by the Good Samaritan. For instance, injury may
be more likely where the Good Samaritan undertakes to administer medical
assistance than where the Good Samaritan undertakes to ring the emergency
services. In this context, the type and level of skill possessed by the
Good Samaritan may also be relevant. If the Good Samaritan attempts to do
something for which he or she does not have the requisite skill, then the
likelihood of harm arising may be greater. The Commission recognises that
this may pose a problem, in the sense that the Good Samaritan may have no
alternative but to undertake the particular task in question.
Furthermore, it should be noted that there may be situations in which injury is
an inevitable consequence. The question then arises as to whether the
Good Samaritan should be held liable for an injury that he or she foresaw, even
where that injury was unavoidable in the overall rescue operation.
3.36
Foreseeability may also relate to the type of relationship that exists
between the Good Samaritan and the stranger. As was noted in the previous
section, a proximate relationship may be established on the basis that there
has been an undertaking by the Good Samaritan and corresponding reliance by the
stranger. The extent to which the Good Samaritan may foresee injury may
depend on whether the reliance in question is of a non-detrimental or a
detrimental nature. Where the reliance is non-detrimental, for instance,
the Good Samaritan may expect the stranger to change his or her position on
faith of the Good Samaritan’s intervention, but to be in no worse a position as
a result. Where the reliance is detrimental in nature, on the other hand,
the Good Samaritan may expect the stranger to change his or position on faith
of the Good Samaritan’s intervention and to be in a worse position. The
problem with such a theoretical argument, however, is that it is unlikely that
considerations of non-detrimental or detrimental reliance will be at the
forefront of the Good Samaritan’s mind.
3.37
Relationships of proximity may also be established where a Good
Samaritan asserts control over an entirely dependent stranger. Regardless
of the reason for the absence of choice, dependency arises from a situation in
which the stranger is already in a vulnerable position. As such, the
possibility of the Good Samaritan inflicting injury may be greater, to the
extent that the Good Samaritan may be aggravating a precarious situation or an
existing injury.
3.38
These considerations are by no means an exhaustive list. They do,
however, help to illustrate the elusive nature of foreseeability in the Good
Samaritan scenario.
3.39
Even where the conditions of proximity and foreseeability may be
satisfied, the Commission notes that under the three-point test adopted by the
Supreme Court in Glencar Explorations plc v Mayo County Council[173]
the law will not impose a duty of care unless it is “just and reasonable” to do
so. In other words, it must be shown that there are no issues of public
policy which may 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 which are
recoverable. This must be considered in light of the particular case and
in light of the precedent that the decision may create.
3.40
In the first place, the Commission notes that activities undertaken by
the Good Samaritan may present a particular problem at this stage of the duty
of care enquiry. As was noted in Chapter 1, activities undertaken by the
Good Samaritan may be understood as being activities performed for the benefit
of society. Thus, it may be asserted that Good Samaritan activities
should be acknowledged and encouraged. Obviously, this may be a “just and
reasonable” factor to be taken into account in this respect.
3.41
Secondly, the Commission notes that the main objective of imposing
liability may be to identify the party who is to bear the cost of
damages. In the context of the Good Samaritan scenario, this process may
be particularly delicate. On the one hand, it is asserted that the law
should acknowledge and encourage the good works of the Good Samaritan, while on
the other hand, it is asserted that the law should not unduly prejudice the
stranger, who may already be in a vulnerable situation.
3.42
Thirdly, the Commission observes that the extent to which liability may
dissuade individuals from undertaking dangerous activities may have a negative
impact on those who would otherwise be willing to intervene in a rescue
situation. This may be so as a rescue, by definition, will usually entail
some element of danger – both for the stranger and the Good Samaritan.
3.43
Finally, the Commission notes that a finding of liability may not only
deter future Good Samaritans from intervening, but may also create a precedent
for future claims against Good Samaritans. In this context, the Good
Samaritan may appear to occupy a particularly vulnerable position. Since
Good Samaritans do not generally organise themselves in groups, they may not
have the benefit of training, support or advice.[174] Thus, Good Samaritans may range
from those persons who are highly skilled to those persons capable only of
making rudimentary responses. Furthermore, Good Samaritans may not
benefit from the safeguards which are typically available to those involved in
organisations, for instance, insurance cover and vicarious liability.
Good Samaritans, therefore, may be personally liable for any damage arising
from their intervention.
3.44
At this point, the Commission emphasises that there is a lack of case
law on this area, not only in Ireland but in other states. The absence of
case law may be attributed to a number of factors. First, it may indicate
that the stranger’s gratitude to the Good Samaritan generally outweighs the
stranger’s desire to seek compensation for any
incidental injury: they are alive. Second, it may indicate that lawyers
are advising their clients against suing Good Samaritans, in light of the
weight given by the courts to the element of societal benefit. Third, it
may indicate that the strangers who do pursue cases against Good Samaritans are
settling their cases before they get to court. Finally, though less
likely, it may indicate that individuals are no longer intervening as Good
Samaritans. While the absence of caselaw does not definitively prove one
position or another, the Commission considers that a combination of gratitude
by the rescued stranger and the unlikelihood of succeeding in any event are the
most likely reasons. The Commission’s inquiries indicate that fear of
litigation, while present, does not currently deter people from acting as Good
Samaritans.[175]
3.45
Once it is established
that the Good Samaritan owes the stranger a duty of care, the next stage of the
inquiry requires an examination of whether the Good Samaritan has performed the
rescue operation to the appropriate standard of care. Thus, the
test is an objective one, requiring the defendant to exercise such care as
would be exercised by the reasonable person in similar circumstances.[176]
3.46
To a certain extent, however, regard may be had to the characteristics
of the particular group to which the defendant belongs.[177] Such characteristics may include
physical characteristics,[178]
mental characteristics,[179]
moral qualities[180]
and skill.[181]
With the exception of moral qualities,[182] the law generally takes a subjective
approach to these characteristics. Of particular relevance to the Good
Samaritan scenario is the issue of skill, given that the Good Samaritan may be
any individual, ranging from the unskilled to the highly skilled.[183] While a reasonable standard of
intelligence may be expected of all Good Samaritans, higher levels of skill may
indicate the presence of greater physical dexterity and greater knowledge.[184] The question, then, is whether the
standard of care to be applied to the Good Samaritan should take these
variations into account.[185] This may be complicated because the Good
Samaritan may feel obliged to undertake an activity for which he or she is not
sufficiently skilled. Ordinarily, the law’s approach to such a situation
is that one who undertakes to do a particular task requiring a minimum level of
skill may be held liable for falling below that level of skill.[186]
This may be considered unfair in the context of the Good Samaritan.
3.47
If the Good Samaritan is expected to exercise such care as the
reasonable person would in similar circumstances, then, the question arises as
to the care a reasonable person would exercise in similar circumstances.
Four factors have been identified to assist in this inquiry:[187]
· Probability
of Harm
· Gravity
of Potential Injury
· Cost
of Eliminating Risk
· Social
Utility
3.48
This factor is
closely linked to the issue of foreseeability. The general principle is
that the greater the likelihood of harm to the plaintiff, the more probable it
is that the court will regard it as unreasonable for the defendant to engage in
the risky conduct or to fail to take steps to avert the threatened injury.[188] The
difficulty with applying this principle to the Good Samaritan scenario is that
the Good Samaritan, by definition, happens upon a situation for which the
probability of harm occurring is independently high. Thus, the situation
may be described as precarious, in the sense that the prevailing conditions may
easily be exacerbated, or the existing injuries easily aggravated, by the Good
Samaritan’s intervention.[189]
3.49
This factor, therefore, refers to the probability of harm caused by the
Good Samaritan, rather than the probability of harm in general. As with
the issue of foreseeability, the type of intervention undertaken by the Good
Samaritan may be of particular relevance. For instance, it is much less
likely that the Good Samaritan will cause harm where he or she intervenes by
alerting the emergency services to the stranger’s predicament than where the
Good Samaritan intervenes by rendering medical assistance. Related to
this, the skill possessed by the Good Samaritan may be of equal
importance. The more skilled the Good Samaritan is, the better able he or
she may be to assess the situation and to tailor his or her undertaking
accordingly. The Commission notes, however, that just because one Good
Samaritan may be particularly skilled, this does not mean that he or she is
obliged to use that skill to its fullest extent. It may be just as
reasonable for such a Good Samaritan to limit his or her intervention to
alerting the emergency services.
3.50
Again, there is a difficulty in applying this principle to the Good
Samaritan scenario, as it asserts that where the potential injury is great, the
creation of even a slight risk may constitute negligence.[190] The problem is that the Good Samaritan, by
definition, happens across situations for which there may be an independent
risk of serious injury. Thus, the real issue here relates to the gravity
of the injury threatened by the Good Samaritan’s intervention, whether this
results from the Good Samaritan exacerbating a precarious situation or
aggravating an existing injury. As a result, the severity of the injury
threatened by the Good Samaritan’s intervention may need to be balanced against
the severity of the independent threatened injury. For instance, it may
seem unfair to hold the Good Samaritan liable for breaking the stranger’s ribs,
when such was a necessary consequence of administering vital CPR.
3.51
The Commission notes that while the potential benefits of physical
intervention may be greater, so too may the risk of serious harm. For
instance, it is much less likely that the Good Samaritan will cause severe harm
where he or she alerts the emergency services to the predicament of the
stranger than where the Good Samaritan physically intervenes by rendering
medical assistance. Related to this, the skill of the Good Samaritan may
be relevant. For instance, one who is trained in a rescue-related area may
be better equipped to assess the predicament of the stranger and to tailor his
or her response appropriately. However, the Good Samaritan may not always
be privy to the circumstances which have led to the stranger’s predicament or
to the exact nature of the stranger’s injury.[191] In that respect, it may seem unfair to
hold the Good Samaritan liable for something that he or she would not have done
had he or she had further information. In such a situation the Good Samaritan
might ordinarily be expected to err on the side of caution. This may not
always be possible in the context of a rescue.
3.52
In an organised setting, the cost of eliminating the risk usually refers
to the financial cost of implementing safeguards around an activity.[192] This does not
easily translate in the Good Samaritan scenario. Given the spontaneous
and one-off nature of the Good Samaritan intervention, it is unlikely that the
Good Samaritan will ever be in a position to implement such safety
measures. This is not to suggest, however, that the Good Samaritan does
not have the opportunity to limit the risk to which he or she exposes the stranger.
In this context, regard may be had to the alternative methods of intervening
that are reasonably available to the Good Samaritan at the time of his or her
intervention. As was noted above, some methods of intervening may expose
the stranger to a great deal of risk while other methods may entail little or
no risk at all. For instance, the Good Samaritan may be best advised to
refrain from rendering physical assistance (as advised in the Rules of the
Road, the guide to road traffic legislation published by the Road Safety
Authority) where it is safer in the circumstances to alert the emergency
services to the stranger’s predicament. In such a case, the Good
Samaritan may be instrumental in securing the scene and attracting attention to
the stranger’s plight, rather than in undertaking the rescue operation himself
or herself. This may be problematic in those rescue situations where
direct, physical intervention is urgently required and any delay by the emergency
services may prove fatal. There is a concern, therefore, that the Good
Samaritan may become so preoccupied with limiting the risk of liability to
which he or she is exposed that he or she will be distracted from the ultimate
purpose of his or her intervention.
3.53
Where the defendant’s conduct has a high social utility it will be
regarded with more indulgence than where it has none.[193] In particular, the saving of life
or limb may justify taking risks which would not be permissible in the case of
an ordinary commercial enterprise.[194] This principle is of particular relevance
to the Good Samaritan scenario.
3.54
The social utility of the Good Samaritan intervening to assist the
stranger is clear. The Good Samaritan may be the first person on the
scene and, as such, may be instrumental in attracting attention, securing the
scene and even conducting a rescue operation. The Commission notes,
however, that the extent to which the Good Samaritan may be willing to get
involved may relate to the level of skill that he or she possesses. In
the context of a rescue, there is a particular social benefit in encouraging
those with specialist life-saving skills to intervene.
3.55
In respect of the duty of care question, despite the lack of relevant
case law, the general principles of negligence do not clearly exempt the Good
Samaritan from liability. For those rescue situations entailing physical
intervention at least, it is likely that the relationship between the Good
Samaritan and the stranger will be recognised as sufficiently proximate to give
rise to a duty of care. Furthermore, in such rescue situations, it is
foreseeable that the Good Samaritan may cause some injury to the stranger,
though this may not often happen in practice, certainly evidenced by the
absence of litigation. It may be of course that a duty of care would not
be imposed on the basis that it is not “just and reasonable” and the Commission
considers that the arguments here are persuasive.
3.56
As to the standard of
care to be applied to the Good Samaritan, the Commission notes that this will
vary with the individual Good Samaritan, including the Good Samaritan’s level
or lack of skill.[195] This, however,
may give rise to numerous standards being set, none of which pay 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 possessed by Good Samaritans while also acknowledging the social
utility of the Good Samaritan’s intervention. This will be discussed in
greater detail in Chapter 4.
3.57
In Chapter 1, the
Commission observed that the term “voluntary rescuer” generally refers to any
person who is a member of a voluntary rescue organisation,[196] 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. Thus, a voluntary rescuer may
be any person who has received the requisite amount of training, whether he or
she is a lay person or an off-duty professional.
3.58
Given the specialist
nature of the services provided, the strategic role that voluntary rescuers and
their organisations play in terms of emergency management should be noted.[197] In this regard, voluntary
rescuers support the work of statutory bodies, both by supplementing existing
services and by providing additional services. The Commission emphasises
the importance of considering this role and the extent to which it benefits
society when making any recommendations.
3.59
Furthermore, voluntary
rescuers are usually stationed either at help-centres or locations where the
risk of accident or emergency is particularly high. Thus, for any
incident requiring the voluntary rescuer’s assistance there will be a certain
amount of anticipation involved. While the exact nature of the particular
incident may not be foreseen, the voluntary rescuer may certainly have expected
some incident to arise. This is the context in which the Attorney
General’s request concerning the appropriate duty of care and standard of care
to be applied to the voluntary rescuer is to be considered.
3.60
As was noted in Part B,
three conditions must be satisfied in order to establish a duty of care.[198]
First, there must be a relationship of proximity. Second, damage must be
reasonably foreseeable. Third, it must be just and reasonable to impose a
duty of care. In contrast to the Good Samaritan, 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.[199]
As a result, different considerations apply to the discussion of the duty of care
of the voluntary rescuer in comparison to the Good Samaritan.
3.61
The first question is
how a relationship of sufficient proximity may be established between the
voluntary rescuer and the recipient of his or her services. In this
regard, there is a doubt about whether the principle applied in respect of the
Good Samaritan, that is, voluntary assumption of responsibility, applies to the
voluntary rescuer.[200]
As before, the analysis here deals with rescue situations involving
relationships of undertaking and reliance first and then rescue situations
involving relationships of control and dependence.
3.62
In the context of a
rescue situation involving a relationship of undertaking and reliance, the
voluntary rescuer may undertake to do something, or to voluntarily intervene,
upon which the recipient may rely. If this is the case, it is necessary
to examine how terms such as “voluntary intervention” and “reliance” apply to
the voluntary rescuer.
3.63
As with the Good
Samaritan, the voluntary rescuer’s intervention may arise from a promise or a
voluntary act.
(a)
Promise
3.64
There are a number of
aspects to a promise which must be borne in mind. First, a promise may be
made in express terms or be inferred from the conduct of the voluntary
rescuer. Second, outside a contract setting a promise is not legally
enforceable unless there is reasonable reliance of which the voluntary rescuer
knows or ought to have known. Thirdly, in the context of a rescue, a
promise will generally be a promise to endeavour rather than a promise to
achieve a successful outcome.
3.65
There are, at least,
three stages at which a promise may be discerned in the context of a voluntary
rescue. First, by undertaking training the voluntary rescuer, arguably,
promises to intervene any time an accident or emergency arises. However,
obliging the voluntary rescuer to intervene, irrespective of whether he or she
is on duty may be akin to imposing a positive duty to rescue.[201]
Second, by joining a voluntary rescue organisation and by committing to its
schedule, the voluntary rescuer, arguably, promises to intervene only where an
accident or emergency arises within the hours of his or her rota.
However, a promise of that nature might still be described as a promise to
society in general and as such, comes dangerously close to the theory of
general reliance.[202]
Alternatively, it might be argued that a promise to intervene only arises where
the voluntary rescuer, like the Good Samaritan, agrees to respond to the
predicament of a particular individual.[203] This approach appears to the
Commission to maintain a safe distance from both the imposition of a positive duty
to intervene and the theory of general reliance.
(b)
Voluntary Act
3.66
Alternatively, a
voluntary intervention may be signified by a voluntary act in favour of the
individual in need. By using the term “voluntary”, anything the rescuer
does on behalf of the rescue organisation may be considered a voluntary act.
3.67
In this regard, there is a wide range of activities that a voluntary
rescuer may undertake to assist an individual in need. In contrast to the
Good Samaritan scenario, however, it may be expected that the natural responses
of the voluntary rescuer will run in reverse order. First, the voluntary
rescuer, by virtue of his or her training, may be more inclined than the
average Good Samaritan to become directly involved by physically
intervening. As was noted in Part B, the more invasive the intervention,
the greater the risk of injury. Second, the voluntary rescuer may very
well be in a position to alert the individual to a danger or to direct the
individual on how to extricate himself or herself from the predicament.
Such an intervention may indicate a certain level of remove from the
individual’s predicament. Third, while the voluntary rescuer may be more
skilled than the average Good Samaritan, there may still be incidents to which
the voluntary rescuer is incapable of providing an adequate response. It
is likely, then, that the voluntary rescuer will call the emergency services
for assistance. Nevertheless, the voluntary rescuer, more so than the
Good Samaritan, may be expected to secure the scene temporarily or assist the
individual until the emergency services arrive.
3.68
As was noted in Part B, the Commission queries whether the issue of
reliance is really necessary for those voluntary interventions constituted by a
voluntary act.
(c)
Reliance
3.69
Under the Hedley
Byrne principle, the law is reluctant to recognise relationships of
proximity in every case involving a voluntary intervention, irrespective of
whether that intervention is constituted by a promise or a voluntary act.
As was noted in Part B, the additional element of reasonable reliance may be required.
In the current discussion, the Commission reiterates a number of elements
relating to the concept of “reasonable reliance.”
3.70
First, the term
“reliance” suggests that the individual in need changes his or her position on
faith of the particular intervention. Thus, an individual may be more
likely to rely on an intervention where it is undertaken by the skilled
voluntary rescuer than where it is undertaken by the average Good
Samaritan. This is the case, regardless of whether the reliance is of a
non-detrimental or a detrimental nature.[204]
3.71
Second, in the context
of a rescue, what may be considered reasonable in the legal context may be a
far cry from that which may ordinarily be considered reasonable. As
against this, reliance on the intervention of the skilled voluntary rescuer may
rarely be considered unreasonable. However, voluntary rescuers neither
have, nor hold themselves out as having, unlimited skills and, thus, only a
certain level of reliance may be considered reasonable. For example, it
might not be considered reasonable for an individual to rely on a voluntary
rescuer to cure his or her cancer.
3.72
Since the voluntary
rescuer may be more inclined to become directly involved by rendering physical
assistance, it is likely that the individual will rely directly on the
voluntary rescuer. A certain distance may be maintained, however, where
the voluntary rescuer merely alerts the individual to a risk or directs the
individual on how to extricate himself or herself from a predicament. In
such a scenario, while the voluntary rescuer’s expert advice may be persuasive,
the individual relies to some extent on himself or herself. Where the
voluntary rescuer engages the emergency services to assist, however, it is
likely that the individual will transfer his or her reliance from the voluntary
rescuer to the emergency services once the emergency services take over.
3.73
As already noted, some
rescue situations may involve relationships of control and dependence rather
than relationships of undertaking and reliance. Thus, the individual in
need may find that he or she has no choice but to rely on the voluntary
rescuer’s intervention, whether this is due to a lack of comparable
alternatives or incapacity to choose. In this regard, by virtue of his or
her skill and the reputation of his or her organisation, the voluntary rescuer
may be more inclined to play an authoritative role in any given rescue
situation. It is, therefore, likely that situations involving the
voluntary rescuer will entail relationships more akin to those based on control
and dependence than those based on undertaking and reliance. It is
useful, therefore, to examine the notions of “control” and “dependence” in the
context of the voluntary rescuer.
3.74
As observed above,
voluntary rescuers, by virtue of their skill and reputation, may be in a
particularly strong position to assert control over accident and emergency
situations. Given the strategic role that voluntary rescue organisations
play in supplementing the services of statutory bodies, a call for assistance
may indicate either that there is no statutory body available to intervene or
that there is no organisation of comparable expertise. In this respect,
the individual does not have a real alternative to engaging the voluntary
rescuer to assist.
3.75
Furthermore, voluntary
rescue organisations tend to place themselves at help-centres or locations
where there is a particularly high risk of accidents and emergencies. The
voluntary organisation, therefore, makes itself available to requests for
assistance and represents that it is willing and able to take charge. In
this regard, the voluntary organisation may assert total control over the
operation, conducting the rescue from start to finish, or partial control,
temporarily securing the scene or abating the risk, while ultimately relying on
another party to save the individual.
3.76
As there may be no
alternative to the voluntary rescue organisation’s intervention, whether
because there is no statutory body available to assist or no organisation of
comparable expertise, the individual may be described as being dependent on the
intervention of the voluntary rescuer. This dependency may be partial, as
where the voluntary rescuer asserts partial, or initial control, or total, as
where the voluntary rescuer asserts total control over the operation.
3.77
The Commission also
notes that a call to the voluntary rescue organisation may suggest that there
is a particularly delicate situation that requires a suitably skilled
intervention. For instance, the individual may be in a particularly
precarious situation, be injured or unconscious. In that case, the
individual may not be sufficiently coherent to choose between the voluntary
rescuer’s intervention and possible alternatives. If so, the individual
may depend, to some extent, on the voluntary rescuer’s intervention.
3.78
Once a sufficiently
proximate relationship has been established, the issue arises as to whether it
was reasonably foreseeable that the voluntary rescuer’s intervention would
cause injury. As was noted in Part B, the test is objective, in the sense
that it seeks to calibrate the knowledge possessed by the defendant against the
knowledge possessed by the reasonable person in similar circumstances. In
this context, the voluntary rescuer might be distinguished from the Good
Samaritan, on the basis that a greater depth of knowledge may be expected of
the voluntary rescuer. Thus, the reasonable voluntary rescuer may be in a
better position to foresee the potential risks inherent in a situation or a
particular intervention.
3.79
This is of particular
relevance where the voluntary rescuer finds the individual in a precarious
situation or with existing injuries. While the extent to which the
voluntary rescuer is privy to the events that have led to the individual’s
predicament may be relevant, the ability of the voluntary rescuer to assess the
situation and to tailor his or her conduct appropriately is of greater
consequence. In particular, the voluntary rescuer is more likely than the
average Good Samaritan to be aware of latent risks and best practice precautions.
There may, therefore, be less of a chance that the voluntary rescuer will
inadvertently exacerbate the situation or aggravate any existing injury.
3.80
Foreseeability may
depend on the type of intervention undertaken and the level of skill possessed
by the defendant. While the voluntary rescuer may be trained to undertake
a variety of interventions, there may still be certain interventions that 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. The
Commission observes, however, that particularly where life is at stake, the
voluntary rescuer may feel that he or she has no choice but to intervene.
3.81
Finally, foreseeability
of harm may, to some extent, depend on the nature of the relationship between
the voluntary rescuer and the individual in need. For instance, where the
relationship is based on undertaking and reliance, harm may be a more
foreseeable consequence where the reliance is of a detrimental, rather than a
non-detrimental, nature. Furthermore, where the relationship is based on
control and dependence, there may be a greater risk of aggravating prevailing
vulnerabilities. In that respect, it may be more foreseeable that harm
will result.
3.82
Once it is established
that there is a sufficiently proximate relationship and that damage is
reasonably foreseeable, it must then be shown that it is just and reasonable to
impose a duty of care on the voluntary rescuer. As noted in Part B, this
necessitates an analysis of relevant policy issues, which may negative, limit
or reduce the scope of the duty of care, the class of persons to which it is
owed or the amount of damages that are recoverable.
3.83
In the first place, the
activities undertaken by voluntary rescuers and their organisations are for the
benefit of society. On the one hand, by bolstering the services provided
by statutory bodies, voluntary rescuers save lives. Not only do they save
lives, voluntary rescuers also facilitate the organisation of large-scale
events, also for the benefit of society, by providing a presence to guard
against accidents and emergencies. With a particular emphasis on the
organisation, voluntary organisations, in general, benefit society by providing
a forum for their members to interact and to develop skills. It might, therefore,
be asserted that, to the extent that the fear of litigation may pose an
impediment to such activities, it may not be just and reasonable to impose a
duty of care.
3.84
Secondly, in the
context of identifying the party who is to bear the cost of damages, the duty
of care analysis may necessitate a delicate balancing exercise. First, it
may be asserted that the good works of voluntary rescuers should be recognised
and encouraged, particularly in light of the time sacrificed to training and
committed to the organisation’s rota. However, it may also be asserted
that, given the nature of the service provided, it would be inappropriate to be
more lenient in respect of the duty of care owed. It might, therefore, be
argued that those participating in the voluntary organisation’s activities have
willingly and knowingly put themselves at risk of litigation.[205]
In this regard, it might be noted that voluntary rescuers and their
organisations will most likely be covered by insurance.[206]
3.85
Thirdly, in the context of dissuading individuals from undertaking
dangerous activities, the imposition of a duty of care may have a particularly
deleterious effect on the activities of the voluntary rescuer. As was
noted in Part B, a rescue, by definition, will usually involve some element of
danger. In this regard, however, the voluntary rescuer may be
distinguished from the Good Samaritan to the extent that the voluntary rescuer
opts to intervene on a regular basis. Cumulatively, then, the voluntary
rescuer may be more exposed to the danger that the Good Samaritan experiences
on a one-off basis.
3.86
Finally, a finding of
liability may not only deter individuals from becoming voluntary rescuers, but
may also create a precedent for future claims against voluntary rescuers.[207] On the one
hand, the Commission notes that volunteers engaged in the activities of
voluntary organisations may be better protected than most, to the extent that
they may benefit from training, insurance cover and vicarious liability.
On the other hand, however, the Commission notes that the cost of litigation
and expensive insurance premiums may place an inordinate financial burden on
voluntary rescue organisations, particularly where their survival depends on
charitable donations. Ultimately, this may force the voluntary rescue
organisation to reduce the number of members it engages and the level of
activities it undertakes. The Commission is aware that while this is not
a pressing issue for organisations at present, it has been raised as a matter
of some potential concern.
3.87
If it is established
that the voluntary rescuer owes the individual in need a duty of care, the next
issue is whether the voluntary rescuer has performed the rescue operation to
the appropriate standard of care. As was noted in Part B, the test is
objective, requiring the defendant to exercise such care as would be exercised
by the reasonable person in similar circumstances. Given the level of
training that the voluntary rescuer has undergone, a higher level of skill
might be expected of the voluntary rescuer than the average Good
Samaritan. Thus, the appropriate standard may relate to the standard
applicable to the reasonable rescuer rather than the reasonable person.[208]
In this regard, reference may be made to general and approved practice, as
stated in the training manual of the particular voluntary group.[209]
The Commission notes, however, that an issue may arise where the particular
voluntary rescuer is additionally skilled, perhaps as the result of
professional training. The question then is whether the appropriate
standard is that related to the voluntary rescuer or that related to the
particular profession.[210] Aside
from this complication, each case involves 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.
3.88
As was noted in Part B,
the greater the likelihood of harm, the more probable it is that the court will
regard it as unreasonable for the defendant to engage in risky conduct or to
fail to take steps to avert the injury. The Commission notes the
difficulty of applying this principle to the scenario of the voluntary
rescuer. In the first place, the voluntary rescuer will generally
intervene in situations where there is an independent risk of injury. Thus,
the likelihood of harm may be greater, in the sense that the voluntary rescuer
may easily exacerbate the prevailing conditions or aggravate any existing
injuries. Therefore, the voluntary rescuer may be required to choose
between the risk independently arising and the risk posed by his or her
intervention. Related to this, voluntary rescuers may be more inclined to
undertake physical interventions, to which a greater risk of harm may be
attributed. Furthermore, irrespective of the course of action undertaken,
the voluntary rescuer is likely to encounter situations where injury is an
inevitable consequence.
3.89
As distinct from the
Good Samaritan, however, the voluntary rescuer may be in a particularly strong
position to deal with such rescue situations. The risk posed by the
voluntary rescuer’s intervention may, therefore, be minimal. In this
regard, the voluntary rescuer will usually have undergone a certain amount of
specialised training. Thus, 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. Furthermore, any such
intervention is likely to be performed with the benefit of appropriate
equipment and the support of other voluntary rescuers. In any event, the
voluntary rescuer anticipates, to some extent, that a rescue situation will
arise. Therefore, the voluntary rescuer generally has adequate time to
consider and prepare his or her response.
3.90
As was noted in Part B,
where the potential injury is great, the creation of even a slight risk may
constitute negligence. Again, the Commission observes the difficulty of
applying this principle to the scenario of the voluntary rescuer. First,
it should be noted that the voluntary rescuer is very likely to come across and
intervene in a situation where there is an independent risk of serious harm.
In that respect, by intervening, the voluntary rescuer might easily exacerbate
the prevailing conditions or aggravate any existing injuries. Related to
this is that the voluntary rescuer may be more inclined to undertake a physical
intervention, which is more likely to give rise to serious harm than a more
remote intervention, such as calling the emergency services. However, it
must be noted that, by intervening, the voluntary rescuer may indeed improve
the condition of the individual in need.
3.91
The voluntary rescuer
will, however, most likely have undergone a certain amount of training.
By virtue of this training, the voluntary rescuer should be better able to
assess the situation and to tailor his or her intervention appropriately.
While the voluntary rescuer might not be able to diagnose the exact nature of
any existing injury or predict, with certainty, the severity of a potential
injury, he or she might be expected to proceed cautiously where there is a real
risk of serious harm. This may leave the voluntary rescuer with nothing
to do other than secure the scene or abate the risk to the individual until
third party assistance may be obtained. However, there may be situations
in which the voluntary rescuer has no third party to fall back on. If so,
it might be that greater leniency should be shown to the voluntary rescuer who
intervenes, even though he or she might otherwise be advised to refrain.
3.92
As was noted in Part B,
the cost of eliminating the risk usually refers to the financial cost of
implementing safeguards around an activity. In this regard, particular
difficulties may arise in the context of voluntary rescue, which is an
inherently dangerous activity.[211] While it may be impossible to eliminate
all the risks involved in undertaking a rescue, much can be done to lessen the
likelihood of such risks materialising.
3.93
In the first place, voluntary rescue organisations may provide training
and refresher courses to develop skills and ensure that they are kept up to
date. Secondly, such organisations may adopt some method of ensuring that
those who are engaged as voluntary rescuers are appropriate candidates.
For instance, candidates may be required to pass an examination before being
engaged. Thirdly, they may ensure that voluntary rescuers have adequate
equipment and support at their disposal.
3.94
In the context of a specific rescue, certain interventions may involve a
greater degree of risk than others. While it may be preferable that the
voluntary rescuer opt for the intervention involving the least amount of risk,
there may be situations where the voluntary rescuer has no alternative but to
opt for a more dangerous method. For instance, where the voluntary rescue
organisation provides a unique service in a remote area, there may be no other
group qualified to provide the service or close enough to provide assistance without
injurious delay.
3.95
With regard to the risk of litigation, certain measures may be taken to
protect voluntary rescuers and their organisations, notably, through
insurance. The Commission notes, however, that this might be problematic
to the extent that the cost of insurance may place a burden on voluntary
rescuers and their organisations.[212]
3.96
In Part B, it was noted that where an activity has a high social
utility, it will be regarded with more indulgence than where it has none.
This has particular relevance to the voluntary rescuer. Indeed, it may be
asserted that the social utility of the voluntary rescuer’s activity goes
beyond the specific intervention in the particular accident or emergency.
In a broader context, the voluntary rescuer provides a service for the benefit
of the public, by supplementing the services provide by statutory bodies and by
providing additional services. In addition, voluntary rescue
organisations ensure that the service provided by its members is given against
the background of adequate instruction, training and experience. As such,
those in need of emergency assistance are less likely to be put at risk by the
voluntary rescuer’s intervention. Furthermore, the knowledge imparted to
voluntary rescuers may be passed on and used by other members of society, with
the result that more people are capable of assisting in similar situations.
3.97
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, a
relationship of proximity is likely to be established once the voluntary
rescuer intervenes. Second, given that the voluntary rescuer’s
intervention is likely to be direct and physical, injury to the individual in
need may be a foreseeable risk in most cases. Thus, it is only at the
“just and reasonable” stage of the enquiry that a question arises as to whether
a duty of care should be imposed on the voluntary rescuer. While
there are very persuasive policy considerations, the Commission notes that the
voluntary rescuer, to some extent, advertises his or her willingness and
ability to assist in emergency situations. Thus, it may be argued that
the voluntary rescuer, to some extent, assumes responsibility and, therefore,
assumes a duty of care.
3.98
As with the Good
Samaritan, the Commission notes that there is some uncertainty regarding the
standard of care to be applied to the voluntary rescuer. On the one hand,
it may be asserted that the standard should be set according to the
individual’s status as a voluntary rescuer. This may be problematic,
however, to the extent that it does not recognise the particular skills of
certain volunteers, such as those who may be professional rescuers or
medics. Alternatively, the standard may be set according to the
particular voluntary rescuer’s level or lack of skill, but this may result in
the creation of numerous standards of care. In the Commission’s view the
solution is to have a standard that will appreciate the various skills
possessed by voluntary rescuers while at the same time acknowledge that
voluntary rescuers are motivated by a desire to do good. This will be
discussed in greater detail in Chapter 4.
3.99
In Chapter 1, 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. The voluntary
service provider is thus 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” and those defined as “formal volunteers.”
3.100
The voluntary service
provider may be involved in an array of activities, most often involving social
services and social inclusion. The services provided by the voluntary
service provider may, therefore, be distinguished from those provided by the Good
Samaritan and the voluntary rescuer. First, the range of activities may
be much broader. Second, the activities will not necessarily be of an
inherently dangerous nature. The analysis of the duty of care and the
standard of care question may, therefore, be based on a more subtle
premise. Finally, while the Good Samaritan and the voluntary rescuer tend
to respond to risks independently arising, the voluntary service provider may
actually be responsible for the risk that has led to the individual’s predicament.
3.101
As a result, while
there may be some overlap between this Part and Parts B and C, dealing with the
Good Samaritan and the voluntary rescuer, the Commission concludes that the
distinguishing traits of the voluntary service provider justify the
re-examination of certain issues.
3.102
In respect of the
voluntary service provider, there are two branches to the duty of care
question. In the first place, certain activities, whether or not
undertaken by a voluntary service provider, may be regulated by statute.[213]
For instance, a voluntary service provider who is also an employer may be
subject to health and safety legislation. Likewise,
a voluntary service provider who organises an event may be subject to
obligations under the Occupiers’ Liability Act 1995,
the Planning and Development Act 2000 (licensing of outdoor events)
or the Licensing of Indoor Events Act 2003. However, the Commission notes that duties may
also arise by virtue of the relationship between the voluntary service provider
and the recipient of the service. In this respect, the general test to be
applied, irrespective of whether the voluntary service provider is an individual
or an organisation, is that laid down in Glencar Exploration plc v Mayo
County Council.[214]
As was noted previously, this test requires an examination of whether there is
a sufficiently proximate relationship between the voluntary service provider
and the recipient of the service; whether the damage is reasonably foreseeable;
and, whether it is just and reasonable to impose a duty of care on the
voluntary service provider.
3.103
As to proximity, the
issue is whether the provision of a voluntary service draws the provider and
the recipient of that service into such a close relationship that the voluntary
service provider ought to have foreseen that his or her actions would cause
harm to the recipient. In respect of the formal volunteer, a direct
relationship of proximity may be established with the recipient of the service,
as well as an indirect relationship of proximity by virtue of the relationship
between the formal volunteer and the voluntary organisation and the
relationship between the voluntary organisation and the recipient of the
service. Given
the range of services that the voluntary service provider could provide and the
various entities that might constitute a voluntary service provider, the
Commission proposes to discuss the three most common types of scenario giving
rise to a proximate relationship. The first is where the voluntary
service provider is in a special relationship with the recipient of the service.
The second is where the voluntary service provider is in a special position in
relation to the danger. The third is where the voluntary service provider
voluntarily assumes responsibility with respect to the recipient.
3.104
The term “special
relationship” is most commonly used to describe those relationships giving rise
to a legal duty. These exist in at least two types of situation.
3.105
Firstly, it may exist
where the defendant is, in some way, responsible for the well-being of the
plaintiff. For example, a parent may be responsible for the welfare of
his or her child.[215] While this is
not usually applied directly to the voluntary service provider, it is possible
to do so. It would not be very difficult to imagine a situation in which
the voluntary service provider is, in some way, responsible for the recipient’s
well-being. For instance, where a voluntary service provider performs caring
functions, it might be asserted that it is responsible for the well-being of
the individual in whose favour the caring functions are being performed.
3.106
In the second place, a
special relationship may also be held to exist where the defendant exercises
some element of control over the (injurious) actions of a third party.
For instance, prison officers may exercise control over the conduct of
prisoners.[216] Again, while
it is not usually applied directly to the voluntary service provider, it could
be applied. For instance, where a voluntary service provider opts to
bring a group of youths on a field trip, it might be asserted that the
voluntary service provider has a duty to supervise those youths. Such a
duty to supervise not only protects the youths from harm, but also protects
third parties from harm by preventing the youths from getting up to mischief.
3.107
Proximity may also be
established where the voluntary service provider is, in some way, connected to
the source of the damage. This may be so where the voluntary service
provider exercises some element of control over the source of the danger.
This may be of particular relevance where a voluntary service provider is
contemplating a fund-raising event, such as a sports competition, concert or
fair. By organising such an event, 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.
3.108
Proximity might also be
established where the voluntary service provider creates a risk which it fails
to control.[217] This is so,
even where the voluntary service provider is legally entitled to create the
risk. For instance, where the voluntary service provider organises an
event, it is likely that a crowd will be drawn to it. Where there is a
crowd, there is a greater risk of harm occurring. Thus, it may be
asserted that the voluntary service provider has created a risk, which it must
now control. In this regard, the voluntary service provider may be
required by the relevant legislation to implement certain crowd control
measures, such as ensuring that the maximum capacity is not exceeded and that
there is an adequate emergency evacuation plan.
3.109
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.[218]
This might be the case where a voluntary youth group organises a hill-walk for
its members. While hill-walking may entail some inherent risks, these
might be aggravated where the voluntary service provider fails to provide
adequate equipment or proceeds with the walk despite forecasts of adverse
weather conditions.
3.110
Even where proximity
cannot be established on the ground that there is a special relationship or on
the ground that the voluntary service provider is in a special position in
relation to the danger, proximity may still be established on the ground that
there is a voluntary assumption of responsibility. As was noted
previously, a voluntary assumption of responsibility may be based on a
relationship of undertaking and reliance or a relationship of control and
dependence.
(a)
Undertaking
3.111
Where the undertaking
is a promise, the Commission emphasises three essential factors. First, a
promise may be express or inferred from the voluntary service provider’s
conduct. Second, given that the involvement of the voluntary service
provider is not limited to rescue situations, the promise of the voluntary
service provider is just as likely to be a promise to endeavour as a
promise to achieve a successful outcome. Third, it is generally accepted
that the law will refrain from enforcing a simple promise, unless it can be
shown that there was reasonable reliance of which the voluntary service
provider was aware.
3.112
In the first place, it
is necessary to consider the point at which the promise to voluntarily provide
services arises. As was noted above, the promise may be express or
implied. Thus, the Commission observes that the promise may be made
directly to the recipient of the service or be inferred from the voluntary
service provider’s conduct in favour of the recipient. This is so
regardless of whether the voluntary service provider is an informal volunteer,
a formal volunteer or a voluntary organisation. Where the voluntary
service provider is a formal volunteer, however, the promise may also be made
directly to or inferred from conduct in favour of the voluntary
organisation. Registration with the voluntary organisation may, then, be
understood as an express promise to carry out the organisation’s work.
From this it might be inferred that the formal volunteer intends to help those
people targeted by the voluntary organisation and to render such help to the
standard expected of the voluntary organisation.[219] Where the voluntary service
provider is a voluntary organisation, an express promise may be made to the
world at large or be inferred from the organisation’s general activities.[220]
3.113
The question then
arises as to the nature of the particular promise. As was noted above,
given the array of activities that the voluntary service provider may
undertake, 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. For instance,
where a volunteer makes a promise to achieve a particular outcome, such as to
mow the lawn, it will be clear at what point the volunteer has fulfilled his or
her promise. Where a volunteer makes a promise to endeavour, such as
prepare hot meals for the elderly, however, it may be more difficult to discern
the point at which that promise is fulfilled. Such seemingly open-ended
engagements may be curtailed where the volunteer commits to providing the
service for a certain period only.
3.114
The Commission
reiterates that simple promises are not generally enforceable. To have it
otherwise might be to impose too onerous a burden on the voluntary service
provider. This might be a particular problem for individual volunteers
who have made promises in respect of open-ended engagements that are not
time-limited. This may be less of a problem for voluntary organisations,
as they may continue to exist so long as the service is required.
Furthermore, there may be situations in which the personal commitments of the
individual may conflict with the undertaking to provide 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 to trump the provision of services.
3.115
An undertaking may also consist of a voluntary act in favour of the
recipient of the service. For the purpose of this section, “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,
may be included.
3.116
Given the immense range of activities that might be undertaken by the
voluntary service provider, it is not possible to analyse each one
individually. The Commission observes, however, that certain activities
will necessarily entail a greater degree of risk than others. Thus, the
more a service concerns the physical integrity of an individual, the more
likely it is that harm will occur. In this regard, the identity of
persons to whom the service is provided may be relevant. For instance,
where the service is provided to a particularly vulnerable group, it is more
likely that harm will occur, than where the service is provided to a more
robust group. Such activities may be contrasted with those activities
which have a more remote effect, either because they do not touch upon the
physical integrity of the recipient or because the voluntary service provider
distances itself from the actual provision of the service. For instance,
a voluntary group might provide training to enable volunteers to provide a
service, but may refrain from getting involved in the provision of the service.
3.117
The Commission also notes that the voluntary service provider may commit
to providing a service on a once-off basis, for a certain period of time or on
a regular and recurring basis. As was noted above, it might be easier for
the voluntary organisation to provide a service on an indefinite basis than it
would be for an individual volunteer. In this regard, it may be observed
that the voluntary organisation is less likely to be impeded by those obstacles
encountered by the individual volunteer, such as conflicting personal commitments
and fatigue.
3.118
Furthermore, the nature of a voluntary act may vary depending on the
type of voluntary service provider that undertakes it. For instance,
where the informal volunteer undertakes to provide 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, on
the other hand, it is likely that he or she will personally undertake the
service but 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.
3.119
As in the context of the Good Samaritan and the voluntary rescuer, the
law is reluctant to recognise a relationship of proximity on the basis of a
voluntary intervention alone. The Commission notes that it must also be
shown that there is reasonable reliance of which the voluntary service provider
is aware.[221]
This is so regardless of whether the voluntary service provider is an informal
volunteer, a formal volunteer or a voluntary organisation. It is useful,
in this context, to reiterate that the term “reliance” refers to those
situations in which the recipient of the voluntary service has, in some way,
changed his or her position on faith of the voluntary service provider’s
undertaking.
3.120
In this respect, reliance may be of a non-detrimental nature.[222]
Where there is non-detrimental reliance, 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. 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. Alternatively,
reliance may be of a detrimental nature. In such a scenario, the
recipient of the voluntary service may have changed his or her position for the
worse, on faith of the volunteer’s undertaking. For instance, in the
scenario above, the elderly neighbour may, on faith of the volunteer’s
undertaking, get rid of his or her cooker. As a result, if the volunteer
fails to turn up, it is very likely that the elderly neighbour would find it
difficult to make an alternative arrangement.
3.121
The question then arises as to what type of reliance may be considered
“reasonable.” A number of elements must be considered in this
respect. First, while we are no longer dealing with the urgency of a
rescue situation, many of those receiving voluntary services may be particularly
vulnerable. As such, they may be more inclined to rely on the voluntary
provision of services. Second, the extent to which reliance, particularly
detrimental reliance, is “reasonable” may depend on the nature of the
volunteer’s promise. For instance, where the volunteer expressly promises
to do something at a future date, it might be considered hasty of the recipient
to change his or her position before he or she can ascertain that the volunteer
will keep his or her promise. There is, in that context, a greater chance
that the reliance will be considered reasonable where the promise is either
inferred from or supported by conduct, particularly where the conduct is on a
regular and recurrent basis.[223]
Third, the formal volunteer may be coloured by the reputation of the voluntary
organisation with which he or she associates. In that respect, the
recipient of the voluntary activity may be more inclined to rely on the formal
volunteer’s undertaking than, perhaps, the informal volunteer’s
undertaking. In this regard, the recipient may anticipate that the formal
volunteer has received a certain amount of training, will provide the service
to the standard set by the voluntary organisation and can avail of sufficient
and appropriate resources. Finally, in a related context, reliance may be
induced by the particular volunteer’s undertaking or by the voluntary
organisation’s overall undertaking. Where reliance is triggered by the
voluntary organisation’s overall undertaking, it may be that the individual
volunteer and his or her undertaking are dispensable. In other words,
even where the individual volunteer fails, the voluntary organisation may
continue with the undertaking and even substitute another volunteer for the original
one. In such a case, it may be debatable as to whether reliance on the
individual volunteer, rather than the overall organisation, would be
reasonable.
3.122
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. To
classify the relationship as such might suggest that the voluntary service
provider plays an authoritative role, while the recipient of the service has no
choice but to succumb to the will of the provider. That the recipient of
the service has “no choice” may be because there are no comparable alternatives
to the voluntary service provider’s undertaking or that the recipient does not
have the capacity to choose.
(a)
Control
3.123
In a general sense,
“control” refers to where the voluntary service provider is in a relatively
powerful position compared to the recipient of the service. In some instances,
the voluntary service provider may be especially well placed to provide a
particular service. For instance, the volunteer may have relevant
professional training or may be attached to a voluntary organisation that
specialises in the provision of a particular service.
3.124
A narrower
interpretation may also be attributed to the term “control”, namely, the
voluntary service provider takes charge of a situation. In this context,
the voluntary service provider may assert general control. For instance,
the voluntary service provider may organise an event and thus be expected to
manage the operations in accordance with the relevant legislation.[224] Alternatively, the voluntary service
provider may take charge of a particular task. For instance, the
voluntary service provider may provide an art class, free of charge, to the
local youth club.
3.125
In line with this, relationships of control and dependence are most
likely to arise where the voluntary service provider is a voluntary
organisation. Realistically, the voluntary organisation is one of the few
actors that has the capacity, resources and authority to assert control.
For instance, a voluntary organisation may assert control every time it directs
its volunteers, provides a specialised service or organises an event.
Relationships of control and dependence may also arise where the voluntary
service provider is a formal volunteer. While the formal volunteer may
have direct control over the particular task with which he or she is charged,
ultimate control, however, is likely to rest with the voluntary
organisation. In this regard, a distinction should be drawn between those
voluntary organisations that maintain an authoritative involvement and those
that prefer to limit their involvement to the provision of resources, such as
training. Relationships of control and dependence may also arise where
the voluntary service provider is an informal volunteer.
(b)
Dependence
3.126
The term “dependence” suggests that the recipient of the voluntary
service has no alternative but to succumb to the will of the voluntary service
provider.[225]
This may be because no other entity provides a comparable service or that the
recipient of the service does not have the capacity to choose between
alternatives. Furthermore, “dependence” seems to suggest that the
recipient of the voluntary service is incapable of performing the operation
alone.
3.127
Some voluntary service providers tend to supplement the services
provided by statutory bodies. As such, voluntary service providers tend
to provide necessary services. Therefore, where the recipient of a
service turns to a volunteer or voluntary organisation to provide a particular
service, the inference may be that there is nobody else to provide that service
on those terms.
3.128
Other voluntary service providers are constituted specifically for the
purpose of assisting vulnerable people, whether this vulnerability may be
attributed to personal or financial circumstances. While the voluntary
service provider may have full knowledge of the recipient’s dependence, partial
dependence may develop into complete dependence over time. As was noted
above, a voluntary organisation may be in a better position to provide a
constant service than the average individual volunteer, whose personal
commitments may at times conflict with the provision of the service.
3.129
It might 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. It may also be apparent to the
voluntary service provider that the recipient is dependent on the voluntary
service provider, in particular, to safeguard his or her well-being.
3.130
Once it is established that there is a relationship of proximity between
the voluntary service provider and the recipient, it is then necessary to
consider whether it was reasonably foreseeable that the voluntary service
provider’s conduct might cause harm to the recipient. This is so irrespective
of whether the voluntary service provider is an informal volunteer, a formal
volunteer or a voluntary organisation.
3.131
Firstly, the extent to which harm is foreseeable may relate to the
nature of the service being provided. At one end of the spectrum there
are services which do not affect the physical integrity of the recipient at
all, while at the other end are services which affect it greatly. This
end of the spectrum involves a higher degree of inherent risk. For instance,
where a voluntary service provider undertakes to mow the lawn, it is much less
likely that this will cause harm than where it undertakes to organise a
sporting event.
3.132
In the second place, the extent to which harm is foreseeable may relate,
at some level, to the skill possessed by the particular voluntary service
provider. In this regard, a higher level of skill might be expected of
the formal volunteer than the informal volunteer – the implication being that
harm is more foreseeable where the voluntary service provider is an informal
volunteer. Such a comparison might only be appropriate, however, where
the formal volunteer and the informal volunteer are providing equivalent
services. In such a scenario, the formal volunteer has received specialised
training and guidance from the voluntary organisation, aimed at reducing the
risk to which the voluntary organisation, the volunteer and the recipient of
the service are exposed. However, any volunteer, whether informal or
formal, may also have relevant professional training. Thus, it may be
more accurate to assert that regardless of whether the voluntary service
provider is an informal volunteer, a formal volunteer or a voluntary
organisation, the foreseeability of harm is greater where the provider departs
from its area of competence.
3.133
On a related note, where the voluntary service provider is an
organisation it may be foreseeable that some harm will arise, by virtue of the
simple fact that the voluntary organisation depends on many individuals to
provide its service. As a result, there may be a greater chance of human
error. In this regard, it must be examined whether it was reasonably
foreseeable that harm would arise from the means employed by the voluntary organisation
in selecting, training and directing its volunteers.[226]
3.134
In the third place, the extent to which harm is foreseeable may relate
to the nature of the relationship between the voluntary service provider and
the recipient of the voluntary service. For instance, where the
relationship is one of undertaking and non-detrimental reliance, the voluntary
service provider may foresee that there is less risk of harm as the recipient
of the voluntary service has retained a certain amount of autonomy and can,
therefore, participate in safeguarding his or her own well-being. Where
the relationship is one of undertaking and detrimental reliance, however, the
voluntary service provider may anticipate a greater risk of harm, since the
recipient of the voluntary service has placed himself or herself in a more
vulnerable position on faith of the voluntary service provider’s
undertaking. The Commission notes that harm may be a particularly
foreseeable consequence where the relationship is one of control and
dependence. In such a scenario, the voluntary service provider ought to
appreciate the potential impact of its exercise of power on the recipient of
the voluntary service, in the sense that it may exacerbate an existing
vulnerability. Furthermore, it should be clear to the voluntary service
provider, 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.
3.135
Finally, the issue of “inevitable harm” may be less persuasive in the
context of the voluntary service provider than in the context of the Good
Samaritan or the voluntary rescuer. In this regard, the Good Samaritan
and the voluntary rescuer might assert that some harm was inevitable to ensure
the overall success of the rescue and as such, constitute the lesser of two
evils. The voluntary service provider, on the other hand, may face a more
onerous task in establishing that some harm was outweighed by the overall benefits
of the voluntary provision of services. In the specific context of the
voluntary organisation, this might be translated into the argument that injury
to one individual is justified by the success of the organisation’s overall
goal.
3.136
Once it is established
that there is a sufficiently proximate relationship and that the harm was
foreseeable, it must also be shown that it is just and reasonable to impose a
duty of care on the voluntary service provider in accordance with the
three-part test set out in Glencar Exploration plc v Mayo County Council.[227]
3.137
In this respect, it
might be argued that the voluntary provision of services is for the benefit of
society. Of course, the extent to which this is true may depend on the
nature of the services being provided. In respect of the recipients, the
Commission observes that by supplementing the statutory provision of services, voluntary
service providers ensure that many more people may benefit from those
services. In respect of the volunteers themselves, by opting to become a
voluntary service provider, an individual becomes a more engaged member of
society. Furthermore, where the voluntary service provider is a voluntary
organisation, a forum is created for volunteers to interact, develop skills and
work towards a common purpose. Thus, it may be argued that, to the extent
that potential liability threatens such activities, it may not be just and
reasonable to impose a duty of care.
3.138
Second, in the context
of identifying the party who is to bear the cost of damages, the risk of harm
must be weighed against the potential benefit to society. Where the
balance falls in favour of imposing a duty of care, the voluntary organisation
may be in a better position to bear the cost of damages than the individual
volunteer.[228]
By virtue of its resources, structure and experience, it might be asserted that
the voluntary organisation is most likely to have anticipated the risk of
damage. In that respect, it is likely that the voluntary organisation
will have implemented precautions to guard against the risk and mechanisms to deal
with the risk should it arise. Therefore, the voluntary organisation may
be better able to absorb the cost of damage without endangering its
activities. In respect of individual volunteers, the formal volunteer may
be in a stronger position to bear the cost of damages than the informal
volunteer. In this regard, the formal volunteer is likely to benefit from
the support of its voluntary organisation, in terms of vicarious liability and
insurance. By contrast, the informal volunteer may have to resort to personal
resources, which may not be sufficient, to meet the cost of damages.
Given the weight of such a burden, it might be asserted that it may not be just
and reasonable to find the informal volunteer to bear the cost of
damages. As against this, the Commission notes that it may be just and
reasonable to completely deny the recipient of the voluntary service the right
to seek redress.
3.139
Thirdly, in the context
of dissuading organisations and individuals from participating in dangerous activities,
the imposition of a duty of care may have a severe impact on the provision of
voluntary services. The Commission notes that this may have a
particularly disastrous effect on those activities importing a greater degree
of inherent risk.
3.140
Finally, a finding of
liability may not only deter individuals from volunteering but may also create
a precedent for future claims against voluntary service providers. While
it might be asserted that voluntary organisations and formal volunteers may be
in a better position to bear this risk, it must be remembered that the cost of
litigation and insurance may impose too onerous a burden, particularly on those
that are dependent on charitable donations for their survival. The
Commission notes that the situation may be even worse for informal volunteers,
who in the majority of cases finance their work from their own resources.
3.141
Once it is established
that the voluntary service provider owes the recipient of the voluntary service
a duty of care,[229]
it must then be shown that the voluntary service provider has not provided the
service to the appropriate standard of care. As noted previously, the
test that is usually applied is an objective test, at least, to the extent that
it seeks to examine whether the conduct of the voluntary service provider was
reasonable in the circumstances. The Commission notes, however, that an
element of subjectivity may be introduced to the extent that the test may
acknowledge that where the voluntary service provider is skilled it may be capable of exercising a higher degree of
care.[230]
In this regard, it might be asserted that, by virtue of his or her training,
the formal volunteer should be held to a higher standard of care than the
informal volunteer and that the off-duty professional should be held to a
higher standard again. Such a comparison should, however, only be made where
the volunteers are providing equivalent services and where the skills referred
to are relevant to the particular service being provided, irrespective of
whether those skills derive from the professional or the voluntary
sector.
3.142
At a most basic level,
the voluntary service provider should exercise such care as would be exercised
by the reasonable person in similar circumstances. The Commission notes,
however, that where the voluntary service provider undertakes to perform a
particular function, the voluntary service provider may be considered negligent
unless it has, or reasonably believes that it has, the requisite skill to
perform that function. This is because by undertaking to perform the
particular function the voluntary service provider represents that it has the
requisite level of skill. In that regard, the voluntary service
provider’s conduct may be judged against that level of skill, regardless of
whether or not the voluntary service provider is actually that skilled.[231] The
Commission notes, however, that the law must be realistic. As a result,
where the voluntary service provider claims, legitimately or not, to be a
specialist in a particular field, the law will expect the voluntary service provider
to have the ordinary level of skill amongst those who specialise in that
field. The voluntary service provider will not be expected to have a
higher degree of skill or competence.[232]
It would seem, then, that regard may be had to the “general and approved
practice” in the particular field, irrespective of whether the service is being
provided by a lay volunteer[233] or a professional volunteer.[234]
The Commission notes, however, that a question arises as to whether a practice
that is general and approved in the voluntary sector will necessarily be a
practice that is general and approved in the professional sector.
3.143
These general
principles apply across the board to all voluntary service providers. As
such, they apply to voluntary organisations and individuals, amateurs and
off-duty professionals. The extent to which the distinctions between
these categories of voluntary service provider may affect the issue of
liability will ultimately depend on the facts of that case. Because of
this, the Commission proposes to analyse this issue further under the headings
of probability of harm, gravity of threatened injury, cost of preventing the
risk and social utility.
3.144
Under this principle, the greater the likelihood of harm, the more
probable that the law will regard it as unreasonable for a person to engage in
risky conduct or to fail to take measures that guard against the injury.
3.145
In this respect, it is notable that voluntary service providers
undertake to provide a wide variety of services, not all of which carry the
same potential for injury. For instance, harm may be more likely where
the particular services affect the physical integrity of the recipient or are
provided to particularly vulnerable individuals. Where this is so, there
is a certain element of inherent risk or sensitivity that might easily be
exacerbated or aggravated.[235]
Where it is common knowledge that the particular activity is inherently risky,
the voluntary service provider may be expected to put in place precautions that
will guard against the risk. In contrast to the Good Samaritan and the
voluntary rescuer, the voluntary service provider may have a greater
opportunity to make preparations and implement precautions in advance of the
provision of the service.
3.146
Second, harm may be a more likely consequence where the voluntary
service provider is insufficiently skilled to provide the particular service or
departs from the guidance or instruction it has received. Voluntary
organisations may be guided by legislation, principles or best practice that
has been developed in their field of expertise, which are passed on to their
members, the formal volunteers. Thus, voluntary organisations and formal
volunteers may be in a particularly strong position to assess the risks of a
given service and to identify the most appropriate precautions. By
contrast, the informal volunteer’s capacity to assess the situation will depend
very much on the volunteer’s personal experience. This would seem to imply
that the standard of care to be applied to the informal volunteer may be that
applicable to the reasonable person. However, it must also be recognised
that any volunteer, formal or informal, may also have relevant professional
skills that may put him or her in a particularly strong position. The
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 by the voluntary organisation.
3.147
Finally, where the voluntary service provider is a voluntary
organisation rather than an individual volunteer, there may be a greater
likelihood of harm arising at some stage. This may be because that the
voluntary organisation is likely to be involved in orchestrating the particular
activity, to be directing a number of volunteers and overseeing a number of
recipients.
3.148
Where the gravity of
the potential injury is great the creation of even a slight risk may constitute
negligence. By contrast with those scenarios involving the Good Samaritan
or the voluntary rescuer, the voluntary service provider may not intervene in
situations that are quite so precarious. As already noted, however,
certain activities undertaken by the voluntary service provider may be
inherently risky, either because they affect the physical integrity of the recipient
or because they are provided to particularly vulnerable individuals. Some
of these may even be risks of serious harm, depending on how dangerous the
activity or fragile the recipient.
3.149
It may, therefore, be
asserted that voluntary organisations and formal volunteers, by virtue of their
skill and organisation, may be in the strongest position to assess the gravity
of the threatened harm, the appropriate means to avoid such harm or the method
of treating such harm should it arise. Nonetheless, volunteers, whether
formal or informal, may have relevant professional training to
contribute. As such, a clear distinction cannot be drawn between the
formal and the informal volunteer.
3.150
The cost of eliminating
the risk usually refers to the financial cost of implementing safeguards around
an activity. This may be an especially relevant consideration in relation
to voluntary service providers, particularly those voluntary service providers
that depend on charitable donations or personal finances to fund their
activities.
3.151
A number of measures
may be taken to eliminate, or at least reduce, the risk posed by the service
being provided. First, voluntary organisations may ensure that those
engaged as volunteers are appropriate candidates. Applicants may have to
undergo a Garda vetting process.[236] Second, voluntary organisations
may ensure that their volunteers are adequately skilled to provide the
particular service. In this regard, the voluntary organisation will often
provide relevant training and refresher courses. Formal volunteers will
have to commit a certain amount of time to undertaking these courses.
Third, voluntary organisations may ensure that their volunteers are adequately
equipped and supported. While the cost may be covered by the voluntary
organisation, there may be instances in which the formal volunteer is obliged
to cover the cost. Fourth, voluntary organisations may take out group
insurance policies or require their volunteers to take out individual
policies. Finally, certain voluntary organisations may require the
recipients of their services to sign waiver forms to acknowledge that they
assume the risk of anything adverse happening.
3.152
These measures may
place a financial burden on voluntary organisations and their members and the
Commission notes that it may not be possible, logistically and financially, for
informal volunteers to implement them all. Where the financial burden of
implementing safety precautions is too great, the voluntary service provider
may have to rationalise. In such a case, society may ultimately bear the
cost where there are fewer services on offer.
3.153
Where an activity has a high social utility, it may be regarded with
more indulgence than where it has none, which has particular relevance for the
voluntary service provider. In this regard, 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 in, at least, two
contexts. First, they may be of benefit to the recipients of those
services. While enhancing the well-being of the recipients, the fact that
the services are provided free of charge ensures that more people may benefit
from them. In addition to this, they may be of benefit to the individual
provider of those services. While encouraging a concern for his or her
fellow human beings, associations with voluntary organisations may also provide
an opportunity for individual volunteers to exchange ideas and develop
skills. The Commission emphasises, 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.
3.154
By contrast with the
Good Samaritan and voluntary rescuer scenarios, the Commission notes that there
may be a wider array of grounds for establishing a proximate relationship where
voluntary service providers are involved. Thus, a proximate relationship
may be established where there is a special relationship between the voluntary
service provider and the recipient of the service, where the voluntary service
provider stands in a special position in relation to the danger or where the
voluntary service provider voluntarily assumes responsibility. While
injury is a foreseeable consequence where the service provided affects the physical
integrity of the recipient or where the service is provided to a particularly
vulnerable recipient, the voluntary service provider is not as confined as the
Good Samaritan or the voluntary rescuer to providing such services. A
question arises again, however, at the final stage of the duty of care inquiry,
as to whether it is “just and reasonable” to impose a duty of care on voluntary
service providers.
3.155
Assuming liability
under the duty of care arises, there is some uncertainty as to the standard of
care to be applied to the voluntary service provider. On the one hand, it
may be asserted that the standard should be set according to the organisation’s
or individual’s status as a voluntary service provider. However, this
approach may relegate the issue to an inappropriate distinction between formal
and informal volunteers, ignoring the particular skills of certain
volunteers. Alternatively, the standard may be set according to the
particular voluntary service provider’s level or lack of skill. This
approach, however, may also be problematic to the extent that it would result
in the setting of numerous standards of care and would fail to recognise the
particular value of providing a service voluntarily. As with the Good
Samaritan and the voluntary rescuer, the ideal situation would be to set a
standard that appreciates the various skills contributed by voluntary service
providers, while acknowledging the fact that voluntary service providers
participate for the public good. This will be discussed in greater detail
in Chapter 4.
3.156
It is clear from the
analysis in this Chapter that, applying the tests of proximity and
foreseeability, it is likely that Good Samaritans, voluntary rescuers and
voluntary service providers face the potential risk of liability at least to
some extent. It is equally clear that the greater the involvement of each
category in the activity concerned and the greater the risk of injury, the more
likely that a duty will arise. Because there is an absence of litigation
in Ireland in this area, the Commission’s analysis is largely based on general
principles.
3.157
The Commission also
accepts that the reasons for the absence of litigation are a matter of
conjecture. It may be, as the Commission has suggested, that most people
who are rescued or saved by Good Samaritans and volunteers are simply glad to
be alive and are unlikely to sue even where there has been an accidental
injury. It may also be that sound legal advice would indicate that an
action would be unlikely to succeed because either proximity or foreseeability
may be difficult to establish, for the detailed reasons set out above.
The Commission also accepts that the “just and reasonable” test, which takes
into account countervailing policy reasons for not imposing liability, may also
have influenced the absence of litigation in this area. The Commission is
aware from its discussions with various parties that there have been few calls
on their insurance policies in this respect, though it seems likely that this
is also linked to the high standards actually adopted by those organisations
who might otherwise be open to litigation.
3.158
In effect, therefore,
the current law does not appear to involve an actual exposure to litigation on
a wide scale basis, but the Commission’s analysis in this Chapter indicates
that liability could, nonetheless, arise, although the “just and reasonable”
test may act as a high threshold in this respect.
3.159
In this context, the
Commission has a choice. It could leave the law in its present state,
which appears not to expose Good Samaritans or volunteers to any appreciable
risk of litigation. Alternatively, the Commission could take the view
that the current law approximates to a situation that because Good Samaritans,
voluntary rescuers and voluntary organisations carry out a socially beneficial
function they are not likely to be sued, even where they act in a way that
would ordinarily be described as negligent.
3.160
Taking account of the
policy setting outlined in Chapter 1, the Commission has concluded that it
would be preferable to have the law in a state where those who might come
across an emergency (Good Samaritans) or those who volunteer their services,
whether as individuals or in an organisational setting, should clearly
understand the legal position.
3.161
In that respect, the
Commission has concluded that it would be preferable that the law should state
with clarity the precise scope of liability, if any, that arises. For
this reason, the Commission provisionally recommends that some form of
statutory regime should set out precisely the issue of liability in this
area. The Commission will examine the precise nature and scope of such a
law in Chapter 4. For convenience, the Commission refers to this as a
Good Samaritan law, as this is the term frequently used in other jurisdictions,
and of course was the title used in the Good Samaritan Bill 2005 which
led to the Attorney General’s request to the Commission.
3.162
The Commission
provisionally recommends that the legal duty of care, if any, of Good
Samaritans, voluntary rescuers and voluntary service providers, should be set
out in statutory form.
4
4.01
In Chapter 3, the
Commission analysed the extent to which a voluntary intervention, whether by a
Good Samaritan or volunteer, may attract a duty of care
under the current law of negligence. In this regard, the
Commission concluded that it would be appropriate to set out clearly in
statutory form the precise scope, if any, of the legal duty of care, taking
into account the policy background set out in Chapter 1. In this Chapter
the Commission sets out the parameters of such a Good Samaritan law. In
Part B, the Commission considers the general mechanisms employed in other jurisdictions.
In Part C, the Commission considers a particular aspect of the proposed law,
the gross negligence test for liability.
4.02
In this Part, the
Commission considers the general scope of the Good Samaritan statute which it
recommended in Chapter 3. The Commission notes that the Private Members
Bill, the Good Samaritan Bill 2005, which formed the immediate
background to the Attorney General’s request had a relatively limited remit in
that it proposed protection only to those Good Samaritans who render emergency
first aid assistance at the scene of the accident or emergency. As a
result, Good Samaritans who render a different species of assistance and other
types of volunteer would have been exclu ded from the protection proposed in
that 2005 Bill. The Commission has examined how comparable common law
jurisdictions have dealt with the matter.
4.03
The Commission notes
that there is no single approach adhered to by common law jurisdictions.
While most jurisdictions have introduced some form of legislation, they vary
greatly. In Section 2 the Commission examines each jurisdiction in
accordance with whether it has introduced some form of Good Samaritan
legislation.[237]
In Section 3 the Commission examines each jurisdiction in accordance with
whether it has introduced some form of volunteer protection and in Section 4 the
Commission examines a number of alternative provisions that have been
made. In Section 5, the Commission sets out its conclusions.
4.04
A number of
jurisdictions have enacted laws specifically aimed at protecting Good
Samaritans from liability.
4.05
In 1953, California was the first to introduce a Good Samaritan
statute. Since then, the remaining States and the District of Columbia
have followed suit. While many statutes have followed a similar format,
others have been influenced by particular incidents encountered by the
particular legislating State. As a result, there are variations in the
protections offered to Good Samaritans.
4.06
At one end of the scale there are those statutes, such as the Oklahoma
statute, which have a very narrow remit, regulating the conduct of licensed
health care professionals alone.[238] At the other end of the scale, the
Minnesota statute applies to any person, regardless of whether they have
undergone any medical training.[239] In between these two extremes, the
Maryland statute seeks to protect health care professionals and various types
of rescue group,[240] while the South
Dakota statute seeks to protect any type of volunteer, in addition to health
care professionals.[241]
4.07
Variations also appear in relation to the types of conduct to be
protected by the statute. Some, such as the Connecticut statute, seek to
protect a narrow category of conduct, referring to emergency medical assistance
or first aid alone.[242]
Others have a broader remit, such as the Arizona statute,[243] which refers to the conduct of volunteers in
general, and the Kansas statute,[244] which refers to the activities of state
agencies. Despite these discrepancies, however, the Commission notes a
type of consensus to protect those who provide emergency medical care and
assistance, in good faith and without remuneration.
4.08
The Commission notes that most statutes, such as the Illinois statute,
stipulate that assistance must be rendered at the scene of the accident.[245] Many, such as the Georgia statute, have
expanded this by allowing for assistance to be given at the scene of the
accident or emergency.[246] The distinction is that the situation of
emergency may extend beyond the confines of the place or moment in which the
accident occurs. Some statutes, such as the New Jersey statute, have gone
even further by permitting protection to those who transport injured persons
from the scene of the accident or emergency.[247]
4.09
Once these conditions have been satisfied, most of the statutes set the
threshold for liability at gross negligence or wilful and wanton
misconduct. It is notable, however, that a minority of statutes do no
more than codify the existing principles of negligence. The threshold set
by the Connecticut statute, for instance, is that applicable to ordinary
negligence.[248]
4.10
The 1997 decision of the Rhode Island courts, Boccasile et al v Cajun
Music Ltd illustrates the effect of such statutes.[249] The deceased, Ralph Boccasile,
was attending a music festival, when he suffered a severe allergic reaction to
some seafood gumbo he had been eating. The defendants were a doctor, a
nurse and a physician’s assistant, who had volunteered as first-aiders at the
music festival. After being notified that there was a man in difficulty,
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 (who she believed to be another
doctor) administered chest compressions. An ambulance arrived and the
physician’s assistant accompanied Mr Boccasile to the hospital. Mr
Boccasile never regained consciousness. The defendants were sued for the
death of Mr Boccasile. 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. 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 was the plaintiff’s failure to submit sufficient evidence as to the
appropriate standard of care.
4.11
Good Samaritan legislation has also been introduced in many states and
territories in Australia.[250]
As in the United States, the legislation varies but a number of common themes
emerge.
4.12
For instance, while New South Wales does not protect volunteers in
general, the protection afforded to the Good Samaritan is quite
extensive. Section 57 of the Civil Liability Act 2002 protects any
individual from civil liability, where he or she intervenes in an emergency in
good faith without reward or expectation of reward.[251] The
Act does not limit protection to Good Samaritans who are medically trained, but
neither does it limit protection to medical interventions or interventions made
at the scene of the accident.
4.13
A similar provision exists in Western Australia. Section 5AD of
the Civil Liability Act 2002 protects any person rendering emergency
assistance at or near the scene of an emergency. In
contrast to the legislation of New South Wales, the Western Australian Act
specifies that any medically qualified person giving advice, in good faith and
without recklessness, is also protected. It may of course be argued that
this is implicit in the New South Wales legislation.
4.14
While the South Australia legislation replicates the New South Wales
provision about medically qualified persons giving advice,[252] it only affords protection to Good
Samaritans who render medical assistance. Thus, section 38 of the Civil
Liability Act 1936, as inserted by the Civil Law (Wrongs) Act 2002,
protects any person who renders emergency medical assistance in good faith
and without recklessness.[253]
4.15
In Victoria, section 31B of the Wrongs Act 1958 provides similar
protection to the South Australian Civil Liability Act of 1936. By contrast, however, the Victoria
legislation extends protection to any person who provides advice, via
telephone for example, regardless of whether they have medical qualifications.[254]
Furthermore, the Act does not stipulate that the Good Samaritan should act
without recklessness.[255]
4.16
The protection afforded in Queensland appears to be the most
limited. The Law Reform (Miscellaneous Provisions) Act 1995 protects
doctors and nurses, who act at or near the scene of an emergency or who
transport the person to hospital, in good faith without gross negligence,
without fee or reward and without expectation of receiving such a fee or
reward. 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.
4.17
Many of the Canadian provinces have enacted some form of Good Samaritan
legislation.
4.18
The broadest protection is found in the Prince Edward Island Volunteers
Liability Act 1988, which seeks to protect both Good Samaritans and
volunteers, including volunteer fire-fighters. Under this
statute, the Good Samaritan is a volunteer who “renders services or assistance
at any place” and is protected from liability unless his or her conduct
constitutes gross negligence. The provisions in the Nova Scotia Volunteer
Services Act (Good Samaritan) 1989 are virtually identical.
4.19
The protection afforded by the British Columbia Good Samaritan Act
1996 appears to be slightly narrower. The Act
provides protection to any person rendering emergency medical services or aid
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.”
It is unclear, however, whether the use of the term “aid” in this context
refers to first aid in particular or assistance in general. Again,
protection extends only so far as the conduct of the person in question does
not constitute gross negligence.
4.20
A more limited form of protection is offered by the Saskatchewan Emergency
Medical Aid Act 1979, which protects two categories of person.
In the first place, 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. Secondly, it protects any person who voluntarily renders
first aid assistance at the immediate scene of the accident or 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 of a medical
nature. The Newfoundland Emergency Medical Aid Act 1997 is
virtually identical.
4.21
While the Alberta Emergency Medical Aid Act 2000 is similar, it extends protection
to any “registered health discipline member.” The Ontario Good
Samaritan Act 2001 extends
protection to “health care professionals” in general. The Act also
provides for the reasonable reimbursement of expenses reasonably incurred.
4.22
The Manitoba Medical Act takes a different approach to the Good
Samaritan. While
the Act restricts the practice of medicine to those with medical
qualifications, it permits any person to give “necessary medical or surgical
aid in case of urgent need if that aid is given without hire, gain or hope of
reward.” There is no provision in the Act, however, dealing with the
consequences for negligent acts or omissions.
4.23
As a province with
civil law origins, Quebec has a code-based system. Article 1471 of
the Civil Code of Quebec states:
“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.”
4.24
It would thus appear 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.
4.25
When the intervention involves significant danger to the rescuer, the
Quebec Act to Promote Good Citizenship states that this may be
recognised as an exceptional act of good citizenship and earn the rescuer a
decoration or distinction from the Quebec government. In this regard, the act must have been
performed in hazardous or difficult circumstances which put the rescuer’s life
in danger.[256]
4.26
A number of
jurisdictions have enacted laws specifically aimed at protecting from liability
those engaged in volunteering or active citizenship.
4.27
Under the Federal Volunteer Protection Act 1997,[257]protection is limited to
volunteers engaged in the activities of non-profit organisations and
governmental entities. In this regard, protection is afforded where the
volunteer is acting within the scope of his or her responsibilities and where
the harm was not caused by wilful, criminal or reckless misconduct, gross
negligence or a conscious, flagrant indifference to the rights or safety of the
individual harmed.[258]
Since every state in the US had already introduced some form of volunteer
protection legislation by the time the Volunteer Protection Act 1997 was
enacted, the 1997 Act pre-empts state laws to the extent that they are
inconsistent with the Act.[259]
4.28
As to the laws enacted by individual states, some of the Good Samaritan
statutes also afford protection to the volunteer. As might be expected,
there is some variance in the levels of protection provided. The Arizona
statute[260]
and the Colorado statute,[261] for instance, extend
protection to any “volunteer” without distinction Delaware is more selective,[262]
to the extent that its code refers to “volunteers of certain nonprofit
organisations” and volunteer health care professionals.[263] Kansas takes a similar approach
with regard to volunteers of certain nonprofit organisations[264] and refers specifically to emergency
management volunteers.[265]
Mississippi[266]
specifies that the “qualified volunteer” and the “retired physician granted
special volunteer medical license” are to be protected.[267] The New Jersey statute, on the other hand,
limits protection to volunteers with certain types of rescue group,[268]
while the Alabama statute limits protection to members of an “organised
volunteer fire department.”[269] Some state
laws, such as that in California, limit protection to volunteers who serve as
directors and officers for non-profits.[270]
4.29
The Federal Commonwealth Volunteers Protection Act 2003 protects
volunteers working for the Commonwealth of Australia from civil liability.
4.30
Similarly, many of the Australian states and territories have also
introduced volunteer protection legislation.[271] While they differ in the detailed
provisions,[272] they
share a common approach that formal volunteers, as distinct from informal
volunteers, acting in good faith should be protected.[273] For example, the Queensland Civil
Liability Act 2003 protects volunteers who perform, in good faith,
community work organised by a community organisation.[274] Similar
provisions are found in Victoria[275] and Western
Australia.[276] Most
statutes exclude protection, however, where the volunteer’s conduct is outside
the scope of the organisation’s activities, is contrary to instruction or is
specifically excluded.[277] This
might be the case where injury results from a criminal act, defamation,
intoxication or the operation of a motor vehicle. While no statute
appears to set a “gross negligence” test, the Commission observes that at least
three statutes specify that the volunteer must act without recklessness.[278]
4.31
In its Reform of the Canada Corporations Act: Discussion Issues for a
New Not-for-Profit Corporations Act, the Commission notes that the federal
government of Canada expressed its opposition to the grant of immunity to
volunteers: “The framework would put the responsibility for harm where it
belongs, on those responsible, rather than on those who have been made to
suffer.”[279]
4.32
Nonetheless, two Canadian provinces have enacted legislation immunising
volunteers from liability. In 2003, Nova Scotia adopted the Volunteer
Protection Act 2002, which
was inspired by the US Volunteer Protection Act 1997. In the same
year, Saskatchewan enacted the Nonprofit Corporations Amendment Act 2003, which grants
immunity to the directors and officers of nonprofit corporations.[280]
While immunity is restricted to directors and officers, the threshold for
liability is set at gross negligence and wilful conduct.[281]
4.33
Aside from those
instruments that may be described as Good Samaritan statutes or volunteer
protection acts, a number of other methods have been employed to protect
volunteers from liability. These include provisions to protect so-called
desirable activities, governmental immunity provisions, emergency statutes,
mutual aid compacts and the doctrine of charitable immunity. The
Commission’s discussion of these is largely focused on the United States as
illustrative of this approach.
4.34
As was noted in Chapter
1,[282]
under section 1 of the UK Compensation Act 2006 courts are required to
consider the potentially deterrent effect a finding of liability under the
common law duty of care in negligence may have on the undertaking of desirable
activities. While the 2006 Act does not specifically refer to Good
Samaritans or volunteers, it is clear that the activities undertaken by Good
Samaritans and volunteers may very well be included in that category of activities
considered desirable. Thus, it is likely that the 2006 Act will have a
bearing on any actions involving Good Samaritans and volunteers.
4.35
The Eleventh Amendment to the US Constitution provides that federal and
state governments are protected by sovereign immunity.[283] Sovereign immunity may also have
originally protected those volunteers considered government employees or
agents, but a general erosion of sovereign immunity has occurred with the
enactment of torts claims legislation in most states. In this regard,
some states have abolished sovereign immunity in general, listing the
exceptional situations in which there may still be protection from liability.[284] In contrast,
some states have retained state immunity in general, listing the exceptional
situations in which civil liability may arise.[285] Some states, such as New Jersey,
have specifically extended immunity protections to volunteers under their torts
claim’s acts.[286]
4.36
The Federal Tort Claims Act 1946 constitutes a limited waiver to
federal sovereign immunity, which protects the US from liability for the
tortious acts of its employees. For the most part, the Act is the only
means by which victims of negligence may seek redress for harm occasioned by
Federal government employees. Redress may also be sought against Federal
government volunteers, where protection has been extended to them by
statute and where they are acting within the scope of their duties.
4.37
In the Irish context, of course, the decision of the Supreme Court in Byrne
v Ireland[287]
in effect abolished by judicial decision any immunity from suit which it
may have been thought to have existed.[288]
4.38
Many states in the US have also adopted emergency statutes and
regulations to protect voluntary healthcare professionals from civil liability.[289]
Where there is a declared emergency, model emergency laws grant emergency
responders immunity from civil liability. In some, out-of-state emergency
health care professionals may be protected, so long as their conduct does not
constitute reckless disregard to the health or life of the patient.[290]
In others,
voluntary healthcare professionals responding within a state may be protected
to the extent that they can be recognised as employees of that state.[291]
In this regard, voluntary healthcare professionals may benefit from sovereign
immunity provisions, so long as their conduct does not constitute wilful
misconduct, gross negligence or bad faith.
4.39
In addition, some states, such as New Jersey, have specifically extended
immunity protections to volunteers under their torts claim’s acts.[292]
Other states, such as Maryland,[293] have achieved this by including unpaid
individuals performing state functions in the definition of the term
“personnel.” Other states, such as New York, have opted for defence and
indemnification guarantees.[294] Under this
regime the state is obliged to provide state volunteers with legal representation
and cover any resulting awards of damages.
4.40
Volunteers may
also be protected from civil liability by emergency compacts, which are
agreements between states that officers or employees of a party state rendering
aid in another state will be considered an agent of the requesting state for
tort liability and immunity purposes. The US Emergency Management
Assistance Compact, for instance, provides that
“officers or employees of a party state rendering aid in
another state … shall be considered agents of the requesting state for tort
liability and immunity purposes”.[295]
To benefit from this immunity, volunteers must act in good faith
and their conduct must not constitute wilful misconduct, gross negligence or
recklessness.
4.41
International and other multi-jurisdictional mutual aid compacts may
also provide immunity for volunteers. The International Emergency
Management Compact (IEMAC), for instance, immunises from liability any “person
or entity of a party jurisdiction,” while the Southern Regional Emergency
Management Compact (SREMAC) protects the party state and their officers and
employees rendering aid in another state.
4.42
The use of inter-facility Memoranda of Understanding to share staff and
meet surge capacity needs is also a common practice in the private
sector. For instance, most urban hospitals in the US have agreements with
other hospitals to share resources in the event of bioterrorism.[296]
4.43
It must be emphasised that Good Samaritan statutes and volunteer
protection laws, particularly those in the United States, do not extend
protection to voluntary organisations. The legislative intent behind
these statutes was to ensure that voluntary organisations retaining the
services of a volunteer were responsible for the harm caused by that volunteer.[297]
The common law doctrine of charitable immunity, however, exists to some extent
in a number of States, though it has been abolished in most of them.[298]
The states with the least restrictive forms of charitable immunity appear to be
Arkansas,[299]
New Jersey[300]
and Virginia[301].
In Alabama,[302]
charities are only immune with respect to claims brought by
beneficiaries. In Georgia,[303] they enjoy immunity unless they fail to
exercise ordinary care in the selection or retention of competent officers and
employees, or where the plaintiff is a paying recipient of the services.
In Maine,[304]
charitable immunity only applies if an organisation derives its funds from
charitable donations. In Maryland,[305] charitable immunity applies only if an
organisation’s assets are held in trust and it has no liability
insurance. In New Jersey,[306] the organisations are not liable for
injuries caused to a beneficiary. In Virginia,[307] they are immune from claims by
beneficiaries alleging negligence, but are susceptible to claims of corporate
negligence. In Utah,[308]
there is a limit to the liability of a tax exempt charity, under certain
circumstances, for acts or omissions of a volunteer. In Wyoming,[309]
a charitable immunity defence is available to organisations that provide
services without charge. In Colorado,[310] Massachusetts[311] and South Carolina,[312] the amount of damages for which a
charity may be liable is capped at a certain amount.[313]
4.44
In addition, the tortious actions of volunteers may, in certain
circumstances, be attributed to the organisation through the principle of
vicarious liability.[314]
Vicarious liability may arise through the theories of respondeat superior
and ostensible agency. Under the theory of respondeat superior, it
is presumed that the employer has control over and is therefore responsible for
the acts of his or her employees. For the most part, the employer will
only be liable for acts of the employee undertaken within the scope of
employment. Under the theory of ostensible agency, an organisation may be
liable for its volunteers’ actions when the third party looks to the
organisation rather than the volunteer to provide him or her with care and the
organisation holds the volunteer out as its employee.[315]
4.45
While there may be a variety of provisions to protect individual
voluntary healthcare professionals, voluntary organisations rarely qualify for
immunity.[316]
Organisations, such as health care entities, may qualify for sovereign
immunity, where they are considered to be a government entity or
contractor. Alternatively, Memoranda of Understanding may be an important
source of liability protection for hospitals, because
in many instances they may assign legal liability for the acts of individual
health care practitioners to the hospital who receives their services.
4.46
The Commission has
drawn on this discussion of the experience of comparable common law
jurisdictions in deciding how to set the parameters of any Good Samaritan
legislation, bearing in mind that such parameters will define to whom and in
what circumstances a duty of care, if any, will apply.
4.47
The Commission notes
that some common law jurisdictions have enacted separate pieces of legislation
to deal with Good Samaritans and volunteers. Given that the Good
Samaritan may be seen as a specific type of volunteer[317] and having regard to the general policy
setting of encouraging active citizenship and volunteerism in Ireland, the
Commission sees great merit in a single piece of legislation which deals with
both Good Samaritans and volunteers. To the extent that the Good
Samaritan Bill 2005 may have applied to Good Samaritans and a specific
species of volunteer engaged in a specific type of activity, the Commission
favours a more wide-ranging legislative approach.
4.48
The Commission notes
that some common law jurisdictions have limited the application of their Good
Samaritan and volunteer protection legislation to narrow categories of persons,
for instance, individuals who are medically trained or who participate in the
activities of a voluntary organisation. In this regard, the Commission is
of the view that limiting the concepts of Good Samaritan and volunteer to very
specific categories of person would be incompatible with the broad notion of
“active citizenship,” as discussed in Chapter 1.[318] Firstly, the Commission notes
that the term “active citizen” may be used to describe both individuals and
organisations.[319]
Thus, any legislation should be broad enough to reflect both categories of
“person.” The Commission is of the view, however, that given the
different considerations that may apply to both categories, it would be
advisable for any legislation to distinguish clearly between individual
volunteers and voluntary organisations.[320] In this regard, the Commission
notes that much of the Good Samaritan and volunteer protection legislation in
comparable common law jurisdictions applies to individuals alone and not
organisations. Regarding individuals, the Commission notes that the term
“active citizen” does not distinguish between individuals who volunteer in an
informal capacity and individuals who volunteer in a formal capacity.[321]
The Commission considers that the proposed legislation should, therefore, be
broad enough to cover both categories.
4.49
The Commission notes
that some jurisdictions limit the application of their legislation to certain
species of conduct, for instance, medical and first aid assistance or
activities specified by the voluntary organisation. In this regard, the
Commission is of the view that it would not be feasible to delimit the range of
activities that may legitimately be considered acts of active citizenship and
any attempt would have the further impact of delimiting the range of persons to
which any proposed legislation would apply. As noted above, this would
also be difficult to reconcile with the broad concept of “active citizenship.”
4.50
The Commission notes
that some jurisdictions limit the application of their legislation to certain
types of situation, for instance, by stipulating that an intervention must take
place at the immediate scene of the accident. In this regard the
Commission notes that such conditions do not accurately reflect the relative
value of one intervention, which is undertaken in the stipulated situation, as
compared with another intervention that takes place outside the stipulated
situation. The Commission has therefore concluded that it would be
inappropriate for any legislation to set down strict circumstantial paradigms
in which the intervention must be undertaken, so as to be classified as an act
of active citizenship.
4.51
Bearing these factors
in mind, the Commission provisionally
recommends that its proposed legislation should be drafted broadly enough to
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.
4.52
The remaining question
is whether such legislation should simply clarify existing law or, like the
majority of the common law jurisdictions above, introduce a moderated standard
in respect of Good Samaritans and volunteers. The Commission therefore
now turns to that issue.
4.53
As was noted above, a
minority of jurisdictions who have enacted Good Samaritan or volunteer
protection legislation apply the ordinary standard of care of negligence.
By contrast, the Good Samaritan Bill 2005 proposed to set the
threshold for liability at “gross negligence” and this is in line with most of
the jurisdictions discussed in Part B. The Commission considers that the
“gross negligence” threshold has the dual benefit of mitigating the potential
deterrent effect of imposing liability, while not unduly prejudicing the
plaintiff by denying him or her the right to seek redress.
4.54
The Commission also considers that the gross negligence test may be
particularly appropriate in the context of situations where an independently
arising risk arises, irrespective of whether they relate to rescue or the
provision of voluntary services in delicate circumstances. In this
regard, the Commission also considers that a gross negligence threshold is
compatible with other relevant principles, notably, necessity and novus actus
interveniens.[322]
4.55
The principle of necessity is of particular relevance to situations of
rescue, since it appears to afford a good defence where there is an emergency
that has not been caused by the prior negligence of the defendant.[323] In
this regard, an emergency must be of such a nature as would justify a person
reasonably to take the action that the defendant took, even where, with the
benefit of hindsight, the action was not necessary.[324] As a defence,
necessity might enable the Good Samaritan or voluntary rescuer to escape
liability for the intentional interference with the security of the endangered
party’s person[325] or
property,[326] on
the ground that the acts complained of were necessary to prevent greater damage
to the community or to another or to the Good Samaritan or voluntary rescuer
himself or herself.[327]
4.56
Where the act of the Good Samaritan, voluntary rescuer or voluntary
service provider is of such a nature that it breaks the chain of causation
between the original source of damage and the injury, that act may be
considered the new or sole cause of the injury.[328]
4.57
In the context of the Good Samaritan and the volunteer, however, the
Commission notes that the principle of novus actus interveniens may be more
appropriately employed for the purpose of analogy than direct
application. First, the Commission notes that it has been held that gross
negligence, in terms of objective recklessness, is insufficient to constitute a
new and intervening act.[329] As will be shown below, the proposed gross
negligence test may fall short of the subjective recklessness required.[330]
Second, the Commission notes that where the intervening act is foreseeable, it
may not constitute a new and intervening act.[331] In this regard, the Commission refers to
the adage that danger invites rescue.[332] As such, it could hardly be
asserted that a rescue attempt is unanticipated. Finally, the Commission
notes that certain acts may not be considered “voluntary” for the purposes of a
new and intervening act. These include activities undertaken pursuant to
a moral duty[333] and activities undertaken
because the original wrong has compelled the actor to intervene.[334] In this regard
the Commission observes that the Good Samaritan or volunteer generally becomes
involved because he or she feels morally bound to do so. As such, there
may be very few occasions on which his or her act may be considered new and
intervening.
4.58
In respect of the
specific elements of the gross negligence test, the Commission has previously
recommended that the essential elements formulated by the Court of
Criminal Appeal in The People (Attorney General) v Dunleavy[335]
provide sufficient clarity. In the
current context, the key elements of gross negligence are that:
a) The negligence
was of a very high degree;
b) The act fell far
below what could have been expected in the circumstances and
c) The actions
contributed to the injury sustained.
4.59
The Commission notes that gross negligence is to be determined by the
degree of departure from the expected standard and the test is an objective
one, in that the accused need not have been aware that he or she had taken an
unjustifiable risk. Ultimately, the task of distinguishing whether the
departure from the expected standard of care constitutes ordinary negligence or
gross negligence is for a trier of fact, based on the test set out.
4.60
In line with the experience of comparable common law jurisdictions,
however, the Commission is of the view that such a gross negligence test should
apply to individuals alone and not organisations. Given the structure of
voluntary organisations, the control they exercise, the responsibility they
assume, the statutory duties to which they are already subjected and the
various means of protection available to them, it is appropriate that they
should bear the burden of acts of ordinary negligence, whether these are
directly or vicariously attributable to them. The Commission notes that
to extend any protection in their favour would put the victim of damage at a
disproportionate disadvantage and would not be a justifiable means of
furthering the policy of encouraging volunteerism.
4.61
The Commission provisionally recommends that any Good Samaritan
legislation should introduce a gross negligence threshold in respect of the
activities undertaken by individual Good Samaritans and volunteers. In
this regard, the Commission provisionally recommends that the test for gross
negligence should be as set out in The People (Attorney General) v Dunleavy
[1948] IR 95, namely, that the negligence must be of a very high degree, that
the act must fall far below what could have been expected in the circumstances
and that the actions must have contributed to the injury sustained.
5
5.01
The provisional
recommendations contained in this Paper may be summarised as follows:
5.02
The Commission
provisionally 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 2.52]
5.03
The Commission
provisionally recommends that the legal duty of care, if any, of Good
Samaritans, voluntary rescuers and voluntary service providers, should be set out
in statutory form. [Paragraph 3.162]
5.04
The Commission
provisionally recommends that its proposed legislation should be drafted
broadly enough to 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 4.51]
5.05
The Commission provisionally recommends that any Good Samaritan
legislation should introduce a gross negligence threshold in respect of the
activities undertaken by individual Good Samaritans and volunteers. In
this regard, the Commission provisionally recommends that the test for gross
negligence should be as set out in The People (Attorney General) v Dunleavy [1948]
IR 95, namely, that the negligence must be of a very high degree, that the act
must fall far below what could have been expected in the circumstances and that
the actions must have contributed to the injury sustained. [Paragraph 4.61]
[1]
2007 Report of the
Taskforce on Active Citizenship. Available at
www.activecitizen.ie/UPLOADEDFILES/Mar07/Taskforce%Report%20to%Government%20(Mar%2007).pdf..
[2]
Department of Health,
Report of the Taskforce on Sudden Cardiac Death Reducing the Risk: A
Strategic Approach 2006.
Available at http://www.dohc.ie/publications/sudden_cardiac_death.html.
[3]
Department of Health,
Report of the Taskforce on Sudden Cardiac Death Reducing the Risk: A
Strategic Approach 2006 at 92-96. Available at www.dohc.ie/publications/sudden_cardiac_death.html.
[4]
Craven “Civil Liability
and Pre-hospital Emergency Care” (February 2004) PHECC Voice.
[5]
Department of Health,
Report of the Taskforce on Sudden Cardiac Death Reducing the Risk: A
Strategic Approach 2006 at 104-105. Available at www.dohc.ie/publications/sudden_cardiac_death.html.
[6]
Department for 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
at 13. Available at
www.welfare.ie/publications/naps/socincl/supporting_whitepaper.pdf.
[7]
National Committee on
Volunteering Tipping the Balance: Report and Recommendations to Governments
on Supporting and Developing Volunteering in Ireland 2002. Available
at
www.worldvolunteerweb.org/fileadmin/docs/old/pdf/2002/02_10_01IRL_tipping_the_balance.pdf.
[8]
Association of Voluntary Service Organisations & Centre Européen du
Voluntariat Country Report on the Legal Status of Volunteers in Ireland
2005 at 5. Available at www.cev.be/Legal%20Status%20Ireland%202005.pdf.
[9]
UN General Assembly Resolution
52/17 proclaimed 2001 the International Year of Volunteers. Available
at
http://daccessdds.un.org/doc/UNDOC/GEN/N98/760/39/PDF/N9876039.pdf?OpenElement.
[10]
UN General Assembly outcome
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. Available at
http://daccessdds.un.org/doc/UNDOC/GEN/N00/601/84/PDF/N0060184.pdf?OpenElement.
[11]
UN General Assembly Resolution 52/17 at 3. Available at http://daccessdds.un.org/doc/UNDOC/GEN/N98/760/39/PDF/N9876039.pdf?OpenElement.
[12]
Dáil Debates, Official Report – Unrevised, Vol 611, No 4, Tuesday 6th
December 2005, Second Stage, Mr Timmins, page 1139.
[13]
See Section 2(1)(a)-(c).
[14]
See Section 2(1).
[15]
See Section 2(1)(a).
[16]
Dáil Debates, Official Report – Unrevised, Vol 611, No 4, Tuesday 6th
December 2005, Second Stage, Mr McDowell, at 1158.
[17]
(No C1-99-666 2000 WL 136076)
Minn Ct App 2 Feb 2000.
[18]
Nowlin “Don’t Just Stand There, Help Me!:
Broadening the Effect of Minnesota’s Good Samaritan Immunity Through Swenson v
Waseca Mutual Insurance Co.” (2003-2004) 30 Wm Mitchell L Rev 1001, at 1014.
[19]
(783 P2d 437) Nev 1989.
[20]
Nowlin “Don’t Just Stand There, Help Me!:
Broadening the Effect of Minnesota’s Good Samaritan Immunity through Swenson v
Waseca Mutual Insurance Co.” (2003-2004) 30 Wm Mitchell Law Rev 1001, at 1026.
[21]
717 SW2d 729 (Tex Ct App 1986).
[22]
Nowlin “Don’t Just Stand There, Help Me!: Broadening the Effect of Minnesota’s
Good Samaritan Immunity through Swenson v Waseca Mutual Insurance Co.”
(2003-2004) 30 Wm Mitchell Law Rev 1001, at 1026.
[23]
626 NW2d 666.
[24]
Nowlin “Don’t Just Stand There, Help Me!:
Broadening the Effect of Minnesota’s Good Samaritan Immunity through Swenson v
Waseca” (2003-2004) 30 Wm Mitchell Law Rev 1001, at 1023.
[25]
The same conclusion was reached in Flynn v United States 902 F2d 1524
(10th Cir 1990).
[26]
See section 2(1)(a).
[27]
See section 2(1)(a).
[28]
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, at 1017-1018.
[29]
For instance, in Swenson v Waseca Mutual Ins Co 653 NW2d 794 (Minn Ct
App 2002) the Court found that the Good Samaritan statute did not require the
injured person to be in “grave physical harm”. 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, at 1015-1016.
[30]
New Oxford English Dictionary, at 10.
[31]
New Oxford English Dictionary, at 603.
[32]
Swenson v Waseca Mutual Ins Co 653 NW2d 794 (Minn Ct App 2002).
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, at 1017-1018.
[33]
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, at 1019 – The term “emergency” was analysed in the context of common
usage, legal usage and case law.
[34]
See Section 2(1)(b)
[35]
653 NW2d 794 (Minn Ct App
2002). 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 at 1016-1017.
[36]
458 P2d 816 (NM Ct App
1969). 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, at 1025.
[37]
See Section 2(1)(c).
[38]
New Oxford English Dictionary, at 2071.
[39]
Barnett v Chelsea & Kensington Hospital Management Committee [1969]
1 QB 428, cited in McMahon and Binchy, Irish Law of Torts 3rd
ed (Butterworths, 2000), at 62. Once they undertake the task, they
come under a duty to use care in the doing of it, and that is so whether they
do it for reward or not. See Kortmann Altruism in Private Law
(Oxford University Press 2005) at 59.
[40]
See Section 2(1).
[41]
See Section 2(2).
[42]
See Section 2(1)(c).
[43]
In Health Board v BC and
the Labour Court, High Court, unreported, 19 January 1994, Costello P noted
at page 10 of his judgment that: “… an employer is vicariously liable where the
act is committed by his employee within the scope of his employment”, cited in
McMahon and Binchy Irish Law of Torts 3rd ed (Butterworths
2000) at 1097.
[44]
Dáil Debates, Official Report – Unrevised, Vol 611, No 4, Tuesday 6th
December 2005, Second Stage, Mr McDowell, at 1152.
[45]
Gospel of Luke 10.30-37.
[47]
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, at 1019. Nowlin describes the Good
Samaritan as “…an individual who, out of kindness in his heart, assists others
who are downtrodden or injured.”
[48]
Good Samaritan Bill 2005,
Dáil Debates, Second Stage (Resumed), Wednesday 7th December 2005,
Mr Brian Lenihan, page 1476 stated that “The good samaritan or rescuer …is a
person not under a legal duty to do as they do but views himself or herself as
being under a moral duty to so behave.”
[49]
Department of Health, Report of the Task Force on Sudden Cardiac Death Reducing
the Risk: A Strategic Approach 2006, at 97. Available at
www.dohc.ie/publications/sudden_cardiac_death.html.
[50]
Department of Health, Report of the Task Force
on Sudden Cardiac Death Reducing the Risk: A Strategic Approach 2006, at
97. Available at www.dohc.ie/publications/sudden_cardiac_death.html.
[51]
Department of Health, Report of the Task Force on Sudden Cardiac Death Reducing
the Risk: A Strategic Approach 2006, at 98-99. Available at www.dohc.ie/publications/sudden_cardiac_death.html.
[52]
Department of Health, Report
of the Task Force on Sudden Cardiac Death Reducing the Risk: A Strategic
Approach 2006 at 95. Available at www.dohc.ie/publications/sudden_cardiac_death.html.
[53]
The Pre-Hospital Emergency Care Council (PHECC) is the independent
statutory agency with responsibility for establishing standards, education and
training for pre-hospital emergency care practitioners. It was established by
the Pre-Hospital Emergency
Care Council (Establishment) Order 2000 (SI No.109 of 2000). The material in the text
is available at the Council’s website, www.phecc.ie.
[54]
The Civil Defence Board,
established by the Civil Defence Act 2002, has statutory responsibility,
through local authorities, for civil defence arrangements at national
level. Much civil defence activity nonetheless incorporates the activities
of voluntary groups, albeit under the direction of the Civil Defence Board.
[55]
Department for 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 at 73. Available at
www.welfare.ie/publications/naps/socincl/supporting_whitepaper.pdf.
[56]
For explanation of the term
“active citizenship”, see Taskforce on Active Citizenship Report 2007 at
2. Available at
www.activecitizen.ie/UPLOADEDFILES/Mar07/Taskforce%Report%20to%20Government%20(Mar%2007).pdf.
See also the Task Force Background Paper on the Concept of Active Citizenship
2007. Available at
www.activecitizen.ie/UPLOADEDFILES/Mar07/Concept%20of%20Active%20Citizenship%20paper%20(Mar%2007).pdf.
[57]
Department for 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 at 79. Available at
www.welfare.ie/publications/naps/socincl/supporting_whitepaper.pdf.
[58]
Task Force on Active Citizenship Background Working Paper Together, We’re
Better at 19 citing Community Development Foundation,
www.cdf.org.uk/html/whatis.html..
Available at www.activecitizenship.ie/getFile.asp?FC_ID=9&docID=49-.
[59]
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 at
17-18. Available at
www.welfare.ie/publications/naps/socincl/supporting_whitepaper.pdf.
[60]
Association of Voluntary Service Organisations
& Centre Européen du Voluntariat Country Report on the Legal Status of
Volunteers in Ireland 2005 at 3: volunteerism is “a vehicle for
individuals and associations to address human, social or environmental needs
and concerns. Available
at www.cev.be/Legal%20Status%20Ireland%202005.pdf.
[61]
National Committee on
Volunteering Tipping the Balance: Report and Recommendations to Governments
on Supporting and Developing Volunteering in Ireland 2002. Available
at www.worldvolunteerweb.org/fileadmin/docs/old/pdf/2002/02_10_01IRL_tipping_the_balance.pdf.
[62]
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 at 37. Available at
www.welfare.ie/publications/naps/socincl/supporting_whitepaper.pdf.
[63]
This exclusive definition may
be contrasted with the inclusive definition provided by the Association of
Voluntary Service Organisations. National Committee on Volunteering Tipping
the Balance: Report and Recommendations to Governments on Supporting and
Developing Volunteering in Ireland 2002 at 6. Available at
www.worldvolunteerweb.org/fileadmin/docs/old/pdf/2002/02_10_01IRL_tipping_the_balance.pdf.
[64]
National Committee on
Volunteering Tipping the Balance: Report and Recommendations to Governments
on Supporting and Developing Volunteering in Ireland 2002 at 6.
Available at
www.worldvolunteerweb.org/fileadmin/docs/old/pdf/2002/02_10_01IRL_tipping_the_balance.pdf.
[65]
National Committee on Volunteering Tipping the Balance: Report and
Recommendations to Governments on Supporting and Developing Volunteering in
Ireland 2002 at 6. Available at
www.worldvolunteerweb.org/fileadmin/docs/old/pdf/2002/02_10_01IRL_tipping_the_balance.pdf.
[66]
National Committee on
Volunteering Tipping the Balance: Report and Recommendations to Governments
on Supporting and Developing Volunteering in Ireland 2002 at 6.
Available at
www.worldvolunteerweb.org/fileadmin/docs/old/pdf/2002/02_10_01IRL_tipping_the_balance.pdf.
[67]
Ruddle & Mulvihill
“Reaching Out: Charitable Giving and Volunteering in the Republic of Ireland,
The 1997/98 Survey” (Policy Research Centre, Dublin, 19993). Cited in 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 at 185. Available at
www.welfare.ie/publications/naps/socincl/supporting_whitepaper.pdf.
[68]
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 at 78. Available at
www.welfare.ie/publications/naps/socincl/supporting_whitepaper.pdf.
[69]
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 at 79-80. Available at
www.welfare.ie/publications/naps/socincl/supporting_whitepaper.pdf.
[70]
It should be noted that
voluntary organisations that engage paid employees are subject to relevant
employment legislation, including the Safety, Health and Welfare at Work Act
2005, which imposes considerable statutory duties that are of relevance
here.
[71]
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 at 78. Available at
www.welfare.ie/publications/naps/socincl/supporting_whitepaper.pdf.
Cf Promoting the Role of Voluntary Organisations and Foundations in Europe –
Communication from the Commission (European Commission, Brussels, 6 June
1997).
[72]
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 at 78. Available at
www.welfare.ie/publications/naps/socincl/supporting_whitepaper.pdf.
Cf Faughnan “Voluntary Organisations in the Social Services Field” Paper
delivered at Seminar, Partners in Progress, Department of Social Welfare, 1990.
[73]
See the Commission’s Report on Charitable Trusts and Legal Structures for
Charities (LRC 80-2006).
[74]
Ibid.
[75]
The Charities Bill 2007
proposes a new statutory definition of charitable purposes which will replace
the ‘Pemsel’ purposes (derived from Commissioners for Special Purposes of
Income Tax v Pemsel [1891] AC 531) listed in the text.
[76]
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 at
16. Available at
www.welfare.ie/publications/naps/socincl/supporting_whitepaper.pdf.
[77]
National Committee on Volunteering Tipping the Balance: Report and
Recommendations to Governments on Supporting and Developing Volunteering in
Ireland 2002. Available at www.worldvolunteerweb.org/fileadmin/docs/old/pdf/2002/02_10_01IRL_tipping_the_balance.pdf.
[78]
Available at
www.volunteernow.org.nz/article/3.
[79]
Powell, Paper on the Third
Sector in Ireland (Presented to the Faculty of Sociology at the University of
Rome “La Sapienza” March 2002). Available at
www.ceis.it/euroset/products/pdf/Third_Sector_in_Ireland.PDF.
[80]
Ibid.
[81]
See the 2007 Report of the
Taskforce on Active Citizenship. Available at
www.activecitizen.ie/UPLOADEDFILES/Mar07/Taskforce%20Report%20to%20Government%20(Mar%2007).pdf.
[82]
2007 Report of the
Taskforce on Active Citizenship 2007 at 1-2. Available at
www.activecitizen.ie/UPLOADEDFILES/Mar07/Taskforce%20Report%20to%20Government%20(Mar%2007).pdf.
[83]
2007 Report of the Taskforce on Active Citizenship 2007 at 2.
Available at
www.activecitizen.ie/UPLOADEDFILES/Mar07/Taskforce%20Report%20to%20Government%20(Mar%2007).pdf.
[84]
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 at
14. Available at
www.welfare.ie/publications/naps/socincl/supporting_whitepaper.pdf.
[85]
The Wheel Discussion Document 2005 Building a Vibrant Civil Culture through
Citizen Engagement at 11. Available at
www.wheel.ie/user/content/view/full/2921.
[86] National
Committee on Volunteering Tipping the Balance: Report and Recommendations to
Governments on Supporting and Developing Volunteering in Ireland 2002 at
44. Available at
www.worldvolunteerweb.org/fileadmin/docs/old/pdf/2002/02_10_01IRL_tipping_the_balance.pdf.
[87]
National Committee on
Volunteering Tipping the Balance: Report and Recommendations to Governments
on Supporting and Developing Volunteering in Ireland 2002 at 44.
Available at www.worldvolunteerweb.org/fileadmin/docs/old/pdf/2002/02_10_01IRL_tipping_the_balance.pdf.
[88]
Taskforce on Active Citizenship, Public Consultation Paper 2006 “Together
We’re Better” at 2. Available at www.activecitizen.ie/index.asp?locID=121&docID=-1.
[89]
For more information on the relationship between active citizenship and
volunteering National Committee on Volunteering Tipping the Balance:
Report and Recommendations to Governments on Supporting and Developing
Volunteering in Ireland 2002 at 8 (available at
www.worldvolunteerweb.org/fileadmin/docs/old/pdf/2002/02_10_01IRL_tipping_the_balance.pdf) and Powell Paper on
the Third Sector in Ireland (Presented to the Faculty of Sociology at the
University of Rome “La Sapienza” March 2002) at 12 (available at
www.ceis.it/euroset/products/pdf/Third_Sector_in_Ireland.PDF).
[90]
Task Force on Active Citizenship Background Working Paper Together, We’re
Better at 18. Available at
www.activecitizenship.ie/getFile.asp?FC_ID=9&docID=49-.
[91]
The Wheel Discussion Document 2005 Building a Vibrant Civil Culture through
Citizen Engagement at 5. Available at
www.wheel.ie/user/content/view/full/2921.
[92]
Department of Health,
Report of the Taskforce on Sudden Cardiac Death Reducing the Risk: A
Strategic Approach 2006 at 98-99. Available at www.dohc.ie/publications/sudden_cardiac_death.html.
[93]
Department of Health,
Report of the Taskforce on Sudden Cardiac Death Reducing the Risk: A
Strategic Approach 2006 at 97. Available at www.dohc.ie/publications/sudden_cardiac_death.html.
[94]
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 at 78. Available at
www.welfare.ie/publications/naps/socincl/supporting_whitepaper.pdf. Cf
Communication on Promoting the Role of Voluntary Organisations and
Foundations in Europe (European Commission, Brussels, 6 June 1997).
[95]
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 at 37. Available at
www.welfare.ie/publications/naps/socincl/supporting_whitepaper.pdf.
[96]
Association of Voluntary Service Organisations
& Centre Européen du Voluntariat Country Report on the Legal Status of
Volunteers in Ireland 2005 at 3. Available at
www.cev.be/Legal%20Status%20Ireland%202005.pdf.
[97]
National Committee on Volunteering Tipping the Balance: Report and
Recommendations to Governments on Supporting and Developing Volunteering in
Ireland 2002 at 8. The
Report notes that the term “social capital” is generally used to describe the
effects that norms and social networks have on social solidarity, democracy and
economic effectiveness. Available at
www.worldvolunteerweb.org/fileadmin/docs/old/pdf/2002/02_10_01IRL_tipping_the_balance.pdf.
[98]
See in particular the
discussion in Chapter 2 of the Supreme Court decision in Glencar Exploration
plc v Mayo County Council [2002] 1 I.R. 84. See also McMahon and
Binchy Irish Law of Torts (3rd ed Butterworths 2000) at 593.
[99]
East Suffolk Catchment
Board v Kent [1940] 4 All ER 527.
[100]
Osman v United Kingdom (1998) 27 EHRR 212.
[101]
Whooley v Dublin Corporation [1961] IR 60, Tomlinson v Congleton
Borough Council [2003] 3 All ER 1122.
[102]
Williams “Legislating in an Echo Chamber?” (2005) 155 NLJ 1938 at 1939.
[103]
[2003] 3 All ER 1122 paragraph 81 (Lord
Hobhouse). The decision was cited with approval by the Supreme Court in Weirs-Rodgers
v The SF Trust Ltd [2005] IESC 2; [2005] 1 IR 47.
[104]
Dáil Debates, Official Report –
Unrevised, Vol 611, No 4, Tuesday 6th December 2005, Second Stage,
Mr Timmins, at 1144.
[105]
2007 Report of the Taskforce on
Active Citizenship at 17. Available at
www.activecitizen.ie./UPLOADEDFILES/Mar07/Taskforce%20Report%20to%20Governmetn%20(Mar%2007).pdf.
[106]
2007 Report of the Taskforce on
Active Citizenship at 6-8. The Taskforce notes that while Active
Citizenship is changing, it is not necessarily declining. Available at www.activecitizen.ie./UPLOADEDFILES/Mar07/Taskforce%20Report%20to%20Governmetn%20(Mar%2007).pdf.
[107]
The Taskforce on Better Regulation, Report on Better Routes to Redress 2004
at 3. Available at www.brc.gov.uk/publications/liticompensation.asp.
[108]
Caparo Industries plc v Dickman [1990] 2 AC 605.
[109]
Williams “Legislating in an Echo
Chamber?” (2005) 155 NLJ 1938 at 1939.
[110]
Department of Health, Report of the Taskforce on Sudden Cardiac Death Reducing
the Risk: A Strategic Approach 2006. Available at
www.dohc.ie/publications/sudden_cardiac_death.html.
[111]
[2002]1 IR 84.
[113]
2007 Report of the Taskforce on Active Citizenship at 6-8.
The Taskforce notes that while Active Citizenship has recently changed in
nature - in the sense that the engagement involved may be time-constrained
arising from other commitments - it does not appear to have declined in terms
of the actual numbers of people who engage in active citizenship.
Available at www.activecitizen.ie/UPLOADEDFILES/Mar07/Taskforce%20Report%20to%20Government%20(Mar%2007).pdf.
[114]
In discussions with the Commission,
a number of voluntary groups have indicated that some volunteers were concerned
about the risk of liability before an insurance scheme was introduced.
[115]
See McMahon and Binchy Irish Law of Torts (3rd ed
Butterworths 2000) at 169.
[116] See
Kortmann Altruism in Private Law (Oxford University Press 2005) at 9-16,
referring to Stovin v Wise [1996] AC 923; Calnan “Reasonableness,
Justice and the No-Duty-To-Rescue Rule of Torts” (1 November2007).
Available at http//ssrn.com/abstract=993118.
[118]
[1932] AC 562 at 580.
[119]
Gospel of Luke,
10:25-37.
[122]
Sutherland Shire
Council v Heyman (1985) 157 CLR 424.
[123]
See McMahon and Binchy Irish
Law of Torts (3rd ed Butterworths 2000) at 533-534. See
also East Suffolk Rivers Catchment Board v Kent [1940] 4 All ER 527
referred to in the Supreme Court decision Duffy v Dublin Corporation
[1974] IR 3.3
[124]
(1996) Aust Torts Reports 81-376 (NSW CA).
[125]
Gray and Edelman “Developing the Law of Omissions: a Common Law Duty to
Rescue?” (1998) 6 TLJ 240.
[126]
The relevant provision
of the Civil Code of Quebec is equivalent of article 1382 of the French Civil
Code.
[127]
Drouin Barakett and Jobin “Une Modeste Loi du Bon Samaritain pour le Québec”
(1976) Vol LIV CBR 290.
[128]
Bell, Boyron & Whittaker Principles of French Law (Oxford University
Press 1998) at 366.
[129]
Tribunal Correctionnel d’Aix 27 March 1947, D 1947, 304.
[130]
The German Civil Code is
available at http://bundesrecht.juris.de.
[131]
Kortmann Altruism in Private
Law (Oxford University Press 2005) at 41-43.
[132]
OLG Frankfurt, 27 October 1988, NJW-RR 1989/II, 794.
[133]
See McMahon and Binchy Irish
Law of Torts (3rd ed Butterworths 2000) at 534. See also East
Suffolk Rivers Catchment Board v Kent [1940] 4 All ER 527 (public
authority).
[134]
See McMahon and Binchy Irish
Law of Torts (3rd ed Butterworths 2000) at 534.
[135]
See McMahon and Binchy Irish
Law of Torts (3rd ed Butterworths 2000) at 539-546, comparing
the Supreme Court decisions of Ward v McMaster [1988] IR 337, Sunderland
v Louth County Council [1990] ILRM 58 and Convery v Dublin County
Council [1996] 3 IR 153. See also Alexandrou v Oxford [1993] 4 All ER 328 (police), cited in
McMahon and Binchy Irish Law of Torts (3rd ed Butterworths
2000) at 171.
[136]
See McMahon and Binchy Irish
Law of Torts (3rd ed Butterworths 2000) at 546.
[137]
[1997] 2 All ER 865 (fire brigade), cited in
McMahon and Binchy Irish Law of Torts (3rd ed Butterworths
2000) at 171, 534, 741.
[138]
OLL Ltd v Secretary of
State for Transport [1997] 3 All ER 897, cited in McMahon and Binchy Irish
Law of Torts (3rd ed Butterworths 2000) at 171.
[139]
[2000] 2 WLR 1158, cited in McMahon and
Binchy Irish Law of Torts (3rd ed Butterworths 2000) at 171.
[140]
High Court, Unreported, 18 January 1993.
[141]
[1996] Aust Torts Reports
81-376 cited in McMahon and Binchy Irish Law of Torts (3rd ed
Butterworths 2000) at 170 and 372
[142]
Guide to the Safety, Health and Welfare at Work (General Application)
Regulations 2007 Chapter 2 of Part 7: First-Aid, p 7, available at www.hsa.ie.
[143]
Kortmann Altruism in
Private Law (Oxford University Press 2005) at 9-28.
[144]
Kortmann Altruism in
Private Law (Oxford University Press 2005) at 10-15.
[145]
Kortmann Altruism in
Private Law (Oxford University Press 2005) at 15-16.
[146]
Bohlen “The Moral Duty to Aid
Others as a Basis of Tort Liability” (1908) 56 U Pa L Rev 217 at 220.
Weinrib “The Case for a Duty to Rescue” (1980) 90(2) Yale Law Journal
247 at 251-258.
[147]
Kortmann Altruism in
Private Law (Oxford University Press 2005) at 24-27. Weinrib “The
Case for a Duty to Rescue” (1980) 90(2) Yale Law Journal 247 at 249-251.
[148]
Kortmann Altruism in
Private Law (Oxford University Press 2005) at 16-17. Weinrib “The
Case for a Duty to Rescue” (1980) 90(2) Yale Law Journal 247 at 262.
[149] Weinrib
“The Case for a Duty to Rescue” (1980) 90(2) Yale Law Journal 247.
[150]
Weinrib “The Case for a Duty to Rescue” (1980) 90(2) Yale Law Journal
247 at 248.
[151]
Weinrib “The Case for a Duty
to Rescue” (1980) 90(2) Yale Law Journal 247 at 248.
[152]
Phillips v Durgan
[1991] ILRM 321 cited in McMahon and Binchy Irish Law of Torts (3rd
ed Butterworths 2000) at 581-584.
[153]
Amongst these special
relationships, Weinrib includes the relationship of employer/employee,
proprietor/customer, landlord/trespasser and boat operator/passenger. See
Weinrib “The Case for a Duty to Rescue” (1980) 90(2) Yale Law Journal
247 at 248.
[154]
While not obliging a bystander
to intervene, section 106(1)(c) of the Road Traffic Act 1961 comes close
in that it obliges the driver or person in charge of a vehicle, involved in an
accident, to provide information to a member of the Garda Síochána or another
person entitled under the 1961 Act to demand information.
[155]
See paragraph 1.51 to
paragraph 1.55 above.
[156]
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).
[159]
McMahon and Binchy Irish Law of Torts (3rd ed Butterworths
2000) at 111: a duty of care is a “legally recognised obligation requiring the
defendant to conform to a certain standard of behaviour for the protection of
others against unreasonable risks.”
[160]
See Anns v Merton
London Borough Council [1978] AC 728 and Ward v McMaster
[1988] IR 337, which proposed a two-stage test that accorded a lesser weight to
public policy concerns.
[161]
See McMahon and Binchy Irish Law of Torts (3rd ed
Butterworths 2000) at 119 which indicates that proximity is a term, perhaps
synonymous with “neighbourhood”, suggesting a closeness between the parties
that is not confined to considerations of space or time.
[162]
Kortmann Altruism in
Private Law (Oxford University Press 2005) at 58-68.
[163]
White v Jones [1995] 2 AC 207, Smith v Eric S Bush [1990] 1 AC 831, Henderson v Merrett
Syndicates [1995] 2 AC 145, Spring v Guardian
Assurance [1995] 2 AC 296. Barker “Unreliable
Assumptions in the Modern Law of Negligence” (1993) 109 LQR 461.
[164] [1964] AC 465, cited with approval in Securities
Trust Ltd v Hugh Moore & Alexander Ltd [1964] IR 417.
[165]
The Commission notes that a voluntary intervention may also be known as a
“voluntary undertaking” or a “voluntary assumption of responsibility.”
[166]
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, cited with approval in
Securities Trust Ltd v Hugh Moore & Alexander Ltd [1964] IR 417.
[167]
The term “reliance” implies that the stranger has the opportunity to choose
between the course of conduct advised by the Good Samaritan and alternative
courses of conduct.
[168]
Kortmann Altruism in
Private Law (Oxford University Press 2005) at 64.
[169]
Overseas Tankship (UK) Ltd
v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388.
[170]
The issue of foreseeability
may also arise in the context of remoteness of damage, which entails an
examination of whether the Good Samaritan knew or ought to have known that his
or her conduct would cause the particular type of damage to the stranger.
[171]
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.
[172]
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.
[174]
Some Good Samaritans may have
benefitted from training, for instance, where the Good Samaritan is an off-duty
rescuer or medically qualified person.
[175]
See 2007 Report of
Taskforce on Active Citizenship at 7 and 17, which indicates that there is
no clear evidence that there are less people volunteering despite a fear of
litigation. Available at www.activecitizen.ie/UPLOADEDFILES/Mar07/Taskforce%Report%20to%20Government%20(MAR%2007).pdf.
[176]
See Kirby v Burke [1944]
IR 207 and Purtill v Athlone UDC [1968] IR 205 at 212-213 cited in
McMahon and Binchy Irish Law of Torts (3rd ed Butterworths
2000) at 145 and 154 respectively.
[177]
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.
[178]
Seavey “Negligence –
Subjective or Objective?” (1927-1928) 41 Harv L Rev 1: the Commission notes
that physical characteristics refer to the use of the senses, strength and
height, and also the non-sentient or nervous qualities.
[179]
The Commission notes that
mental characteristics refer to knowledge and intelligence. See also the
Commission’s Report on the Liability in Tort of Mentally Disabled Persons (LRC
18-1985).
[180]
Seavey “Negligence – Subjective or Objective?” (1927-1928) 41 Harv L Rev 1:
moral qualities may be divided into will and the ability to evaluate interests
or the ability to distinguish between right and wrong.
[181]
Seavey “Negligence –
Subjective or Objective?” (1927-1928) 41 Harv L Rev 1: skill may be described
as a combination of knowledge, intelligence and physical qualities.
[182]
Seavey “Negligence –
Subjective or Objective?” (1927-1928) 41 Harv L Rev 1: a purely objective
principle applies to moral qualities. As such, excessive altruism is as
much a departure from the standard of morality as excessive selfishness.
[183]
Seavey “Negligence –
Subjective or Objective?” (1927-1928) 41 Harv L Rev 1: while a subjective
approach is taken with regard to the physical aspects of skill, common
knowledge of certain facts is attributed to all individuals and a purely
objective principle applies to intelligence. It should be noted that a
modified standard of care test may apply to minors, see Gough v Thorne [1966] 1 WLR 1387, and the mentally ill, see
the Law Reform Commission Report on the Liability in Tort of Mentally
Disabled Persons (LRC 18-1985).
[184]
Byrne v McDonald Supreme
Court 7 February 1957.
[185]
The Commission notes that the
answer to this question may depend on the extent to which such variations may
be incorporated without giving rise to a multitude of different standards of
care. Vaughan v Menlove (1837) 3 Bing, NC 468, 132 ER 490 cited in
McMahon and Binchy Irish Law of Torts (3rd ed Butterworths
2000) at 146.
[186]
Brogan v Bennett [1955] IR 119, cited in McMahon and Binchy Irish
Law of Torts (3rd ed Butterworths 2000) at 378.
[187]
McMahon and Binchy Law of
Torts (3rd ed Butterworths 2000) at 154-167.
[188]
Breslin v Brennan [1937]
IR 350.
[189]
Doran v Dublin Plant Hire Ltd [1990] 1 IR 488.
[190]
Sullivan v Creed [1904]
2 IR 317.
[191]
Sydney County Council v
Dell’Ore (1964) 132 Comm LR 97.
[192]
O’Gorman v Ritz (Clonmel) Ltd [1947] Ir Jur Rep 35.
[193]
Tomlinson v Congleton
Borough Council [2003] 3 All ER 1122.
[194]
Watt v Hertfordshire County
Council [1954] 2 All ER 368.
[195]
Cattley v St John’s
Ambulance Brigade Unreported, Queen’s Bench Division, 25 November 1988, in
respect of voluntary rescuers. See O’Donovan v Cork County Council
[1967] IR 173, in respect of members of the medical profession.
[196]
Voluntary rescue organisations may vary in size and structure. Some may
be non-governmental, such as the Irish Mountain Rescue Association, while
others may involve a certain level of government input, such as the Civil
Defence Board operating under the Civil Defence Act 2002. In this
respect, some voluntary rescue organisations may act as auxiliaries to
statutory bodies, while others may be separate and distinct. Voluntary
organisations are discussed in greater detail in Section D.
[197]
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).
[198]
Glencar Exploration plc v
Mayo County Council [2002] 1 IR 84.
[199]
See Barnett v Chelsea & Kensington Management Committee [1969] 1 QB
428 cited in McMahon and Binchy Irish Law of Torts (3rd ed
Butterworths 2000) at 62.
[200]
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, cited with approval in
Securities Trust Ltd v Hugh Moore & Alexander Ltd [1964] IR 417. Kortmann Altruism in
Private Law (Oxford University Press 2005) at 58-68.
[201]
As was noted, on the basis of Donoghue
v Stevenson [1932] AC 562 the Commission is not
convinced that it would be appropriate to impose a positive duty to intervene
on individuals: see paragraph 2.51, above.
[202]
Sutherland Shire Council v Heyman (1985) 157 CLR 424.
[203]
Kent v Griffiths [2000] 2 All ER 474. A statutory
ambulance was held to owe a duty of care, once it agreed to respond to an
emergency.
[204]
In Part B, the Commission
discusses the risk of imminent injury or death and the risk of ultimate injury
or death.
[205]
In this regard, voluntary
assumption of risk is inadmissible in defence of an action by a Good
Samaritan. Haynes v Harwood [1935] 1 KB 146. Weinrib “The
Case for a Duty to Rescue” (1980) 90 Yale LJ 247.
[206]
Cook v Cook (1985) 162
CLR 376.
[207]
See Cattley v St John’s Ambulance Brigade QBD 25 November 1988 and Boccasile
v Cajun Music Ltd 694 A2d 686 (Rhode Island 1997).
[208]
The voluntary rescuer, by his
or her intervention, holds himself or herself out as being particularly
skilled. See Barnett v Chelsea & Kensington Management Committee
[1969] 1 QB 428.
[209]
Cattley v St John’s Ambulance Brigade QBD 25 November 1988.
[210]
See Dunne v National
Maternity Hospital [1989] IR 91for the standard of care applicable to the
medical profession. See also Condon v Basi [1985] 1 WLR 866 as to how the standard of
care applicable to the amateur sporting participant may be distinguished from
that applicable to the professional.
[211]
The courts recognise that
particular difficulties arise in the context of jobs that cannot be done
without risk. See Depuis v Haulbowline Industries Ltd Supreme
Court 14 February 1962, in which it was accepted that it is impossible to make
some work activities risk-free.
[212]
The Commission notes that a
distinction must be drawn between personal benefit insurance and liability
insurance. The Irish Mountain Rescue Association has indicated to the
Commission that its main concern is with actions pursued by members of its
organisation rather than actions pursued by recipients of its services.
[213]
The relevant legislation may
include the Road Traffic Acts 1961 to 2006, the Fire Services
Act 1981, the Occupiers Liability Act 1995, the Planning
and Development Act 2000 (licensing of outdoor events), the Licensing of
Indoor Events Act 2003, and the Safety, Health and Welfare at Work Act
2005.
[215]
Curley v Mannion [1965]
IR 543.
[216]
Home Office v Dorset Yacht
Co Ltd [1970] AC 1004.
[217]
Cahill v Kenneally
[1955-1956] Ir Jur Rep 15.
[218]
Doran v Dublin Plant Hire
Ltd [1990] 1 IR 488.
[219]
The Commission reiterates the
criticism that to enforce such a promise might be akin to imposing a positive
duty to voluntarily provide services.
[220]
The Commission also reiterates
here the criticism that to enforce such a promise might come dangerously close
to accepting the theory of general reliance.
[221]
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, cited with approval in
Securities Trust Ltd v Hugh Moore & Alexander Ltd [1964] IR 417.
[222]
The law is more reluctant to recognise a relationship of proximity where
reliance is non-detrimental as opposed to detrimental.
[223]
The Commission notes that it might be asserted that reliance on a voluntary
promise may never be considered “reasonable,” as the promise is made without
consideration and enforcement would place too great a burden on the volunteer.
[224]
On the relevant legislation applicable, see paragraph 3.102, above.
[225]
The Commission notes that it is often stated that dependence is not a
sufficient ground for acknowledging a relationship of proximity. This
presents a particular problem in the context of volunteering.
[226]
This may relate to the voluntary organisation’s direct responsibility to the
recipient of the voluntary service. This must be contrasted with the
voluntary organisation’s indirect responsibility, or vicarious liability,
arising out of the principal-agent relationship between the voluntary
organisation and the volunteer.
[227]
[2003] 1 IR 84.
[228]
The Commission notes that certain activities may involve inherent risks.
As such, there may instances where it can be shown that the recipient of the
voluntary service has voluntarily assumed a certain amount of risk.
[229]
The Commission notes that certain voluntary service providers may distance
themselves from the service being provided. For instance, certain
voluntary organisations may facilitate volunteers in their work but refrain from
getting directly involved. As such, these voluntary service providers
might not owe the recipient of the service a duty of care.
[230]
Condon v Basi [1985] 1 WLR 866, drawing a distinction
between the amateur sports participant and the professional player.
[231] Brogan v
Bennett [1955] IR 119 cited in McMahon and Binchy Irish Law of Torts
(3rd ed Butterworths 2000) at 378; Philips v Whiteley [1938]
1 All ER 566.
[232]
Walsh J, O’Donovan v Cork
County Council [1967] IR 173.
[233]
Cattley v St John’s
Ambulance Brigade QBD 25 Nov 1988.
[234]
Dunne v National Maternity
Hospital [1989] IR 91; Roche v Peilow [1986] ILRM 189; O’Donovan
v Cork County Council [1967] IR 173.
[235]
The Commission notes that the
recipient of the service may have voluntarily assumed a certain amount of risk
when participating in the particular activity.
[236]
See generally the Commission’s
Report on Spent Convictions (LRC 84-2007), Chapter 4.
[237]
The Commission notes that the term “Good Samaritan” legislation may be used to
describe legislation that treats both Good Samaritans and volunteers.
[238]
59 Okl St Ann § 518
(2006).
[239]
Minn Stat § 604A.01
(2007).
[240]
Courts and Judicial
Proceedings § 5-603 (2008).
[241]
SD Codified Laws § 20-9-3, § 20-9-4, § 47-23-29 (2006).
[242]
Con Gen Stat Ann §
52-557b (2007).
[243]
Ariz Rev Stat §
36-2263(1), § 36-2263 (2-3), § 36-2263(4), § 36-2263(5), § 12-982, § 32-1471
(2006).
[244]
Kan Stat Ann § 65-2891,
§ 60-3601, § 48-915 (2005).
[245]
745 Il Comp Stat 49/1.
[246]
Ga Code Ann § 51-1-29 (2005).
[247]
NJSA 2A:62A-1, 2A:62A-8,
2A:62A-9 (2007).
[248]
Con Gen Stat Ann § 52-557b
(2007).
[249]
694 A2d 686, 1997 RI Lexis 153 (SC Rhode Island). The Commission notes that this case may equally apply to
voluntary rescuers and possibly voluntary service providers.
[250]
Eburn “Protecting Volunteers?” (November 2003) Vol 18 No 4 The
Australian Journal of Emergency Management 7.
[251]
Eburn “Protecting Volunteers?” (November 2003) Vol 18 No 4 The
Australian Journal of Emergency Management 7 at 8.
[252]
Section 38(3) of the Civil
Liability Act 1936 protects any medically qualified person who gives
advice, via telephone for example, without expectation of reward.
[253]
The Wrongs (Liability and Damages for Personal Injuries) Amendment Act 2002
reinforces the protection afforded to Good Samaritans and volunteers.
[254]
Eburn “Protecting Volunteers?” (November 2003) Vol 18 No 4 The
Australian Journal of Emergency Management 7 at 8.
[255]
The Civil Law (Wrongs) Act 2002 reinforces the protection afforded to
Good Samaritans, volunteers and donators of free food.
[256]
Available at www.justice.gouv.qc.ca/english/ministere/civisme/civisme-a.htm.
[257]
42 USC 14501. See also Nonprofit Risk Management Center Report on State
Liability Laws for Charitable Organizations and Volunteers (2001) at
9-15. Available at www.nonprofitrisk.org.
[258]
The volunteer, where relevant,
must be properly licensed, certified or authorised to act and must not be
operating a motor vehicle, vessel or aircraft where the state requires an
operator’s licence and insurance.
[259]
State law pre-emption does not apply where state law provides greater
protection, where certain conditions are incorporated into the state law or
where the state has declared that the Volunteer Protection Act 1997 is
inapplicable.
[260]
Ariz Rev Stat s 12-982 (2006).
[261]
Colo Rev Stat s 13-21-115.5 (4(a)) (2007).
[262]
Del Code Ann tit 10, s 8133 (2005).
[263]
Del Code Ann tit 10, s 8135 (2005).
[264]
Kan Stat Ann s 65-2891 (2005).
[265]
Kan Stat Ann s 48-915 (2005).
[266]
Miss Code Ann s 95-9-1 (2005).
[267]
Miss Code Ann s 73-25-38 (3)
(2005).
[268]
NJSA 2A:62A-1, 2a:62A-8,
2A:62A-9 (2005).
[269]
Ala code 1975 § 6-5-332(a).
[270]
Cal Gov Code §5239. See
also Nonprofit Risk Management Center Report on State Liability Laws for
Charitable Organizations and Volunteers (2001) at 4. Available at
www.nonprofitrisk.org.
[271]
Available at
www.bus.qut.edu.au/research/cpns/whatweresear/publicliabil.jsp.
[272]
The Western Australia Fire
and Emergency Services Legislation Act 2002 protects volunteer fire units
and marine rescue units and their members from civil liability.
[273]
The Australian Capital
Territory Civil Law (Wrongs) Act 2002 takes a slightly different
approach, protecting volunteers for any act or omission made honestly.
[274]
It also protects volunteers who are office holders of the community
organisation and donators of food in particular circumstances.
[275]
The Wrongs and other Acts
(Public Liability Insurance Reform) Act 2002.
[276]
The Volunteer (Protection
from Liability) Act 2002 and the Civil Liability Act 2002, as
amended by the Civil Liability Amendment Act 2003.
[277]
The Victoria Wrongs and
Other Acts (Public Liability Insurance Reform) Act 2002, the Western
Australia Volunteer (Protection from Liability) Act 2002, and the South
Australia Volunteer Protection Act 2001.
[278]
The South Australia Volunteer
Protection Act 2001, the Northern Territory Personal Injuries
(Liabilities and Damages) Act 2007, and the Capital Territory Civil Law
(Wrongs) Act 2002.
[279]
Ottawa: Industry Canada 2002
at 23.
[280]
This was based on the
Saskatchewan Law Reform Commission’s Report on Liability of Directors and
Officers in Non-Profit Organizations (2003). Available at
http://www.lawreformcommission.sk.ca/ResearchPapers.htm.
[281]
Flannigan “Tort Immunity for Nonprofit Volunteers” 2005 84 CBR 1.
[282]
Paragraphs 1.106-1.109.
[283]
Tribe American Constitutional Law (2nd ed Foundation Press
1988) at 173-95. See also www.hrsa.gov/esarvhp/legregissues/CivilLiability.htm.
[284]
Alaska Stat § 09.50.250 (Michie 2002).
[285]
Colo Rev Stat Ann § 24-10-106 (West 2004).
[286]
NJSA § 59:1-3 (2007).
[287]
[1972] IR 241.
[288]
See generally Hogan and Whyte Kelly’s
The Irish Constitution 4th ed (Butterworths 2003) for a
discussion of the survival of any elements of the former sovereign immunity.
[289]
Available at
www.hrsa.gov/esarvhp/legregissues/CivilLiability.htm.
[290]
Model State Emergency
Health Powers Act 2001 (MSEHPA).
[291]
Model Intrastate Mutual
Agreement Legislation 2004 (MIMAL). See also
www.hrsa.gov/esarvhp/legregissues/CivilLiability.htm.
[292]
NJSA § 59:1-3 (2005).
[293]
Md Code State Gov’t § 12-101
(2005).
[294]
NY Unconsol Law § 9193
(McKinney 2001).
[295]
Available at
www.hrsa.gov/esarvhp/legregissues/CivilLiability.htm.
[296]
US General Accounting Office Hospital Preparedness: Most urban hospitals have
emergency plans but lack certain capacities for bioterrorism Response 13,
GAO-03-924 (2003). Available at http://www.mipt.org/pdf/gao03924.pdf.
[297]
Nonprofit Risk Management Center Report on
State Liability Laws for Charitable Organizations and Volunteers (2001) at 8. Available at
www.nonprofitrisk.org.
[298]
Ibid at 8-9.
[299]
Ibid at 20.
[300]
NJSA §2A;53A-7 (2007).
[301]
Nonprofit Risk Management Center Report on
State Liability Laws for Charitable Organizations and Volunteers (2001) at 107. Available at www.nonprofitrisk.org.
[302]
Ibid at 15.
[303]
Ibid. at 32. .
[304]
Ibid at 50.
[305]
Ibid at 52.
[306]
NJSA §2A;53A-7 (2007).
[307]
Nonprofit Risk Management Center Report on
State Liability Laws for Charitable Organizations and Volunteers (2001) at 107. Available at
www.nonprofitrisk.org.
[308]
Utah Code Ann §78-19-3 (2007).
[309]
Nonprofit Risk Management Center Report on
State Liability Laws for Charitable Organizations and Volunteers (2001) at 118.
[310]
Colo Rev Stat Ann §7-123-105
(West 2004).
[311] Mass Gen
Laws Ann ch 231 §85K (2007).
[312]
Nonprofit Risk Management Center Report on
State Liability Laws for Charitable Organizations and Volunteers (2001) at 93.
[313]
Ibid at 24, 55 and 93.
[314]
Fleming The Law of Torts (7th ed The Law Book Company Ltd
1987) at 339-365. See also
www.hrsa.gov/esarvhp/legregissues/CivilLiability.htm.
[315]
Simmons v St Clair Memorial Hospital 481 A2d 870, 874 (Pa Super 1984).
[316]
Available at
www.hrsa.gov/esarvhp/legregissues/CivilLiability.htm.
[317]
See paragraph 1.68.
[318]
See paragraph 1.85.
[319]
See paragraph 1.86.
[320]
See paragraph 1.68 and
paragraph 1.74 respectively.
[321]
See paragraph 1.71.
[322]
The Commission also notes that
the issue of concurrent wrongdoing, as regulated by the Civil Liability Act
1961, may also be relevant.
[323]
Esso Petroleum Co Ltd v
Southport Corporation [1956] AC 218. Cited in McMahon and Binchy Irish
Law of Torts (3rd ed Butterworths 2000) at 672.
[324]
Cope v Sharpe (No 2) [1912]
1 KB 496. Cited in McMahon and Binchy Irish Law of Torts (3rd
ed Butterworths 2000) at 673.
[325]
Leigh v Gladstone (1909)
26 Times LR 139; not followed in the Secretary of State for Home Office v
Robb [1995] 1 All ER 677. Both cited in McMahon and Binchy Irish
Law of Torts (3rd ed Butterworths 2000) at 642.
[326]
London Borough of Southwark
v Williams [1971] Ch 734. Cited in McMahon and Binchy Irish Law of
Torts (3rd ed Butterworths 2000) at 673.
[327]
The Commission notes that a
distinction may be made between public and private necessity. See Re F
(Mental Patient: Sterilisation) [1990] 2 AC 1.
[328]
See McMahon and Binchy Irish
Law of Torts (3rd ed Butterworths 2000) at 77-78
[329]
Connolly v South of Ireland
Asphalt Co Ltd [1977] IR 99. The Commission notes that the term
“recklessness” in the context of novus actus interveniens refers to “subjective
recklessness.” See Conole v Redbank Oyster Co Ltd [1976] IR 191
[330]
The Commission notes that the
term “recklessness” in the context of novus actus interveniens refers to
“subjective recklessness.” Subjective recklessness entails taking a risk
conscious of the fact that harm is not an unlikely consequence. See Conole
v Redbank Oyster Co Ltd [1976] IR 191
[331]
Connolly v South of Ireland
Asphalt Co Ltd [1977] IR 99.
[332]
Wagner v International
Railroad Co (1921) 232 NYS 176, 133 NE 437
[333] Haynes v
Harwood [1935] 1 KB 146
[334]
Hogg v Keane [1956] IR
155
[335]
[1948] IR 95, 102. See
the Commission’s Report on Corporate Killing (LRC 77-2005) paragraphs
2.59-2.63 (corporate liability) and paragraphs 3.26-3.43 (individual
liability).