Date: Thu, 1 Jun 2006 13:51:03 +1000

From: Neil Foster

Subject: NSW's Good Samaritan Legislation

Dear David etc;

I initially thought s58(2)(a) and (b) could work but I see now I was wrong. (I agree that 58(2) is an independent exception to the rule of non-liability set up by s 57(1), and doesn't only operate where s 58(1) does.) Under 58(2) the immunity of a good samaritan coming to someone's aid is removed if (a) their capacity to exercise reasonable care etc was impaired by reason of intoxication, AND (b) they in fact failed to exercise reasonable care. Ah ha! There is the problem. If para (b) was not true then there would be no question of liability in the first place [remembering that the CLA, in broad terms, is not meant to apply to intentional torts]. If there was no failure of reasonable care they would not be liable, and hence they would not need s 57 at all. So it makes no sense to put in para (b). I guess what the Parliament meant was simply 58(2)(a) and para (b) can be completely omitted. (The same problem, by the way, infects s 63 of the Act, in Part 9, which in a similar way gives immunity to "Volunteers" doing community work.)

And no, I'm actually not aware of real-life problems that raise the need for the exclusion. I'm guessing someone was brain-storming and came up with a "what if ...?" Actually I don't know if anyone else on this list watches Prison Break but in NSW at least last night's episode involved almost precisely this scenario. (Avert your eyes now if you've never watched the show and don't want plot developments.) The young lady doctor who works in the prison was shown in a flashback to have had a drug problem previously, and while walking down the road while under the influence of drugs she saw a child hit by a car. She went over to help but was dragged away by her boyfriend. Presumably the NSW Act, if it applied, would say that she could not claim an immunity from suit if she had tried to treat the child but done so carelessly. And that sounds OK. But yes, this looks like another area where the speedy drafting and lack of public consultation has led to an incoherent provision in the CLA.

By the way, it is perhaps worth noting for those who know that the CLA (like other Australian "tort reforms" of 2002-2003) was mostly based on the so-called Ipp Report, that the authors of that report bear no responsibility for the Good Samaritan provisions. Villa (in his excellent commentary on the CLA) notes at pp 276-277 that the Ipp Report specifically found that there was no need for such legislation and recommended against it. But Parliament couldn't resist ... !

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

>>> David Cheifetz 1/06/06 1:04 >>>

If it isn't clear, my reading of the provisions is that the act or omission referred to in 58(2) is not limited to the type of acts or omissions referred to in 58(1). If that were the case, 58(2) would have referred back to 58(1) in some fashion.

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