Date: Wed, 31 May 2006 22:33:29 -0400

From: David Cheifetz

Subject: Almost a Limited Necessity Defence in Ireland

Neil,

I must be missing something (other than the requisite number of brain cells).

Assuming I've read the provisions correctly, the effect of 57 & 58(2)(a) and (b) is - 58(2)(b) seems to be very clear on this - that the good samaritan is liable if he or she were negligent and the negligence caused injury. Why was it necessary to enact legislation stating the obvious? I have it on good authority that Australian legislators are at least as intelligent as the Canadian species, and I'm sure even ours could figure that much out.

Best,

David

-----Original Message-----
From: Neil Foster
Sent: May 31, 2006 10:01 PM
Subject: Re: ODG: Almost a Limited Necessity Defence in Ireland

Dear Eoin et al;

In NSW we have the Civil Liability Act 2002 Part 8 (headed "Good Samaritans") which contains the following:

 

56 Who is a good samaritan

For the purposes of this Part, a good samaritan is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured.

 

57 Protection of good samaritans

(1) A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

(2) This section does not affect the vicarious liability of any other person for the acts or omissions of the good samaritan.

 

58 Exclusion from protection

(1) The protection from personal liability conferred by this Part does not apply if it is the good samaritan's intentional or negligent act or omission that caused the injury or risk of injury in respect of which the good samaritan first comes to the assistance of the person.

(2) The protection from personal liability conferred by this Part in respect of an act or omission does not apply if:

(a) the ability of the good samaritan to exercise reasonable care and skill was significantly impaired by reason of the good samaritan being under the influence of alcohol or a drug voluntarily consumed (whether or not it was consumed for medication), and

(b) the good samaritan failed to exercise reasonable care and skill in connection with the act or omission.

(3) This Part does not confer protection from personal liability on a person in respect of any act or omission done or made while the person is impersonating a health care or emergency services worker or a police officer or is otherwise falsely representing that the person has skills or expertise in connection with the rendering of emergency assistance.

 

The purpose of s 57(2) is unclear, but I guess it means that where a doctor is "off duty" but goes to someone's aid it might be argued that for the purposes of vicarious liability they were acting "in the course of" their employment, and hence we can hold the employer liable. I see the draft Irish provision tried achieve the same result by excluding immunity in the case of a "health care professionals acting in the course of employment".

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