Date: Thu, 1 Jun 2006 12:00:42 +1000

From: Neil Foster

Subject: 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".

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Eoin O'Dell 1/06/06 5:11 >>>

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.

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