Date: Wed, 31 May 2006 20:11:43 +0100

From: Eoin O'Dell

Subject: Almost a Limited Necessity Defence in Ireland

Dear Colleagues,

Further to the debate sparked by Jason's post a few months ago about the necessity symposium on 'Issues in Legal Scholarship', colleagues might be interested to learn of limited and ultimately unsuccessful Irish proposals to protect from liability persons who act in good faith to provide assistance to a person who is ill or has been injured as a result of an accident or emergency. They were contained in a Private Members Bill, entitled the Good Samaritan Bill 2005. It commenced its rather slow journey through cumbersome Irish parliamentary procedures; but reflecting the fate of almost all Private Members Bills, it died at second stage in the Dáil (lower house; equivalent to the House of Commons). Its terms and (lack of) progress may be tracked here.

Section 2(1) of this short bill provided:

Notwithstanding the rules of common law, a person other than a health care professional acting in the course of employment who -

(a) provides emergency first aid assistance to a person who is ill, injured or unconscious as a result of an accident or other emergency,

(b) provides the assistance at the immediate scene of the accident or emergency, and

(c) has acted voluntarily and without reasonable expectation of compensation or reward for providing the services described,

is not liable for damages that result from his or her negligence in acting or failing to act while providing the services, unless it is established that the damages were caused by the gross negligence of the person.

Of course, there are real problems with the drafting here, and it would not have covered the facts of Vincent v Lake Erie Transportation Co which was the context of the ILS symposium, but it does illustrate a much more limited statutory example of a possible defence of necessity to a tort action. During the course of the debate on the Bill, the government indicated its intention 'to arrange for the Law Reform Commission to be asked to examine the issue of voluntarism in its widest context'.

However, it is unclear whether this has in fact occurred. On the Law Reform Commission's website the matter does not appear on the Commission's Second Programme of Law Reform 2000-2007, or on the list of references from the Attorney General, or on its list of Law under Review (Current Work), and the matter was not addressed in their recent Consultation Paper on Duress and Necessity (LRC CP 39-2006) which covered criminal law matters only.

So, all that remains is the interesting curio that was the Good Samaritan Bill 2005.

All the best from Dublin,

Eoin.

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