The title is also the title of a story in the Brisbane Courier Mail that reports that the Volunteer Marine Rescue Service is being sued for the alleged negligence of its volunteers.

The newspaper reports that:

New Zealand mariner Bill Goodhue is suing the VMR for negligence after his yacht was allegedly moved from its mooring in the Southport Broadwater and swamped.

Mr Goodhue argues civil liability laws that protect volunteers from legal action do not extend to the organisations they belong to.

The Marine Rescue Service is worried that

… the case could result in claims against it and other community groups and is fighting Mr Goodhue over what Southport District Court judge John Newton said yesterday was “a serious question of law”.

“This could set a danger- ous precedent,” VMR state secretary Harry Hubner said.

The case will set an important precedent if it interprets Queensland’s Civil Liability Act 2003 but the impact should not be as severe as either the editor or the VMR claim.

The newspaper further reports that

VMR barrister Susan McNeil told the court yesterday that civil liability laws in other states specifically protected community organisations from lawsuits, but not in Queensland.

However, she argued it was “clearly the intention of the legislation to ensure that the immunity that applies to volunteers also extends to community organisations”.

Civil liability laws in other states do not specifically protect community organisations from lawsuits. In every jurisdiction other than New South Wales and Queensland the legislation does the opposite, that is whilst ensuring volunteers are not liable, the legislation provides that the organisation for which they work remains liable for any damage caused by negligent volunteers (see Commonwealth Volunteers Protection Act 2003 (Cth) s 7; Civil Law (Wrongs) Act 2002 (ACT) s 9; Personal Injuries (Liability and Damages) Act 2003 (NT) s 7(3); Volunteers Protection Act 2001 (SA) s 5; Civil Liability Act 2002 (Tas) s 48; Wrongs Act 1958 (Vic) s 37(2); Volunteers and Food and other Donors (Protection from Liability) Act 2002 (WA) s 7).

It is hard to infer therefore that the legislature in Queensland must have intended an opposite result. New South Wales has legislation that is closest to the Queensland Act except that in New South Wales there is a section that says where an person is not liable (eg because they are a volunteer) then no-one else is ‘vicariously liable’ for their actions (Civil Liability Act 2002 (NSW) s 3C).

The Queensland Act is silent on whether or not “civil liability laws that protect volunteers from legal action [do or] do not extend to the organisations they belong.”

The Ipp Review of the law of negligence recommended against volunteer protection legislation. They also recommended against making organisations vicariously liable for the actions of their volunteers because that would have been contrary to their terms of reference (David Ipp et al, Review of the Law of Negligence, Final Report (Commonwealth of Australia, Canberra, 2002), 58) so no assistance on the meaning of the Act will be found there.

What can be concluded is all but one state makes it clear that organisations that use volunteers are liable for the negligence of their volunteers even if the volunteers are not personally liable. One State goes the other way but to achieve that objective they had to add a section to an Act that is in all other respects very similar to the Queensland Act, a section that the Queensland Parliament has not added leading to the inference that Queensland did not intend “… that the immunity that applies to volunteers also extends to community organisations”.

If the immunity does not extend to organisations it should not give rise to calamitous results. Organisations surely recognize that even if they use volunteers they should take care in what they do and if they do damage, eg by sinking a persons boat, they may have to make that good. The alleged damage here, 0f $90 000 would be a lot to an individual but not to an insurance company. Their own website verifies their commitment to accountability and responsibility so it is inconceivable that they are not approrpriately insured.

Liability does not depend on a poor outcome but on a failuire to take reasonable care in the circumstances. Arguing that organisations are, or should be, liable does not mean liable for everything bad that happens, so it certainly doesn’t identify whether or not there was negligence here.

The Ippp Review of Negligence law was of the view that exempting volunteers from liability was not necessary, but the Parliaments of all Australian states and territories acted to protect volunteers. It does not follow that a person who suffers a loss because of the negligence of volunteers should be denied a remedy simply because the person involved was a volunteer rather than an employee. The solution in all states aside from NSW has been to make the organisation liable.

It should be noted that the same result may not apply to statutory organisations such as the fire brigades and state emergency services as the liability of those organisations and their volunteers are governed by their specific legislation rather than the various Civil Liability Acts. If the Volunteer Marine Rescue Service were exercising powers under the Disaster Management Act 2003 (Qld) they may have further protection under that Act (see s 144) but the newspaper does not explain why the boat was being moved and whether that was in response to a rescue operation.

What’s interesting is this story could be reported from a different perspective – the heading could equally read ‘Rescue service denies duty of care’ and could be written, for the boat owner’s perspective, as an outrageus move by an organisation that it owed now duty and no obligation to take care (see The Evidence won’t beat us’ and related stories regarding the 2003 Canberra bushfires and the defence there that the State of NSW owed no duty of care to the property owners)

What do you think?