Date: Thu, 1 Jun 2006 01:33:13 -0400

From: David Cheifetz

Subject: NSW's Good Samaritan Legislation

Good afternoon, Neil

Consider this scene: a court room somewhere in NSW during the trial of Smith v Jones for damages for personal injury allegedly caused intentionally or negligently by Jones.

Good Samaritan Jones' QC to trial judge: "Well, yes, it is true Mr. Jones had no medical training or other relevant experience prior to attempting to help the Minister of Public Works' breath by performing a tracheotomy rather than first trying the Heimlich manoeuvre. And, yes, it is also true that the Swiss Army knife had been purchased by Mr. Jones just a few hours earlier. However, the Minister was clearly in danger of asphyxiation on account of choking on his words as a result of having to eat crow: as shown by the uncontroverted evidenced that he was turning blue in the face. It is also true that the reasonable person might conclude that Mr. Jones might have been a bit hasty, all things considered, perhaps even negligent. Indeed, I am prepared to concede that Mr. Jones' judgment might have been clouded by certain aspects of his prior relations with the Minister arising out of Mr. Jones status as a member of Her Majesty's Loyal Opposition. Nonetheless, his politics are irrelevant; however impaired one might think his judgment was given his statements both within and without the House. The evidence is clear that Mr. Jones was not at all impaired by either drugs or alcohol at the time."

[Court poses question to QC as to how the Minister came to be blue in the face and then asks: But what about the exclusion in section 58(1)?]

QC: "The evidence shows that Mr. Jones was lawfully on his way to the press conference. The evidence shows that Mr. Jones did not cause, in any way whatsoever, the Minister's original problem. The fact that it was Mr. Jones who provided those photographs to the press, and that resulted in the criminal charges against the Minister, and likely the Minister's apoplexy on being advised of the disclosure and charges, certainly cannot be considered a cause under the statute. In addition, Mr. Jones was performing his duty as a citizen when he disclosed the photographs."

I have the impression that this is one of the statutory consequences of the Ipp Report that amounts to "a piece of law reform which seems itself to call somewhat urgently for reform": Bitumen & Oil Refineries (Aust) Ltd. v. Commr for Gov't Transport (1955), 92 CLR 200 at p. 211.

Regards,

David

-----Original Message-----
From: Neil Foster
Sent: May 31, 2006 11:51 PM
Subject: Re: ODG: 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 ... !

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