Volunteers are often concerned that they will be held liable for mistakes made during the course of their volunteering. To reassure them the legislatures have passed laws to ensure that a volunteer is not liable for acts done whilst volunteering for community organisations. In New South Wales the law goes further and says not only is the volunteer not liable, neither is the organisation for which they volunteer.

Echin v Southern Tablelands Gliding Club [2013] NSWSC 516 has nothing to do with the emergency services, but it may still provide some reassurance. Echin was a pilot who flew with and who had been trained by the Southern Tablelands Gliding Club. On 16 July 2008 he was on his last flight of the day. He was instructed to land toward the hanger so the glider could be put away. On his approach he came into contact with power lines and crashed. He sued the Gliding Club in negligence for a number of alleged errors that need not concern us. Critically he sued on the basis that the club had been negligent in:

(b) Failing to instruct the plaintiff adequately or at all as to the danger associated with attempting to use runway 30 for landing;
(c) Failing to instruct the plaintiff adequately or at all as to the risk of collision with the high tension electricity lines when attempting to land on runway 30 during the late afternoon;
(d) Instructing the plaintiff to perform a “hangar landing” in circumstances where the plaintiff was not sufficiently experienced;
(e) Failing to ensure that the plaintiff was sufficiently trained and/or experienced before permitting the plaintiff to fly as sole pilot in command.

All of these grounds of negligence related to the conduct of the volunteer instructor. There was no argument that the volunteer instructor would not be liable under the Civil Liability Act provisions that are intended to protect volunteers, but would the club also be liable?

Here’s the interesting issue. The defendant admitted that they were liable for their instructor. The trial judge was not so sure. He said (at [103]) “Apart from this admission I would not have thought that the Defendant was vicariously liable for Mr Gamble in his role as an instructor.” At the end of the day, it did not matter. If the club was not vicariously liable for Mr Gamble, then it was not liable at all; if it was vicariously liable then the provisions of the Civil Liability Act would give the club a defence and so there would be no liability.

So why is that of interest? Although a court case is listed as being between the two parties, in reality it is usually an insurance company running the case for the defendant. Although we cannot know if it was an insurer in this case it is most likely the case; plaintiffs don’t sue uninsured defendants. If we assume that it was an insurer running the case then it is interesting to see, even with the judge’s expressed doubt that they would be liable for their instructor, they admitted and insisted that they were in fact liable. They took no step to separate themselves from the volunteer.

To this can be added some earlier cases – in New South Wales v Fahy [2007] HCA 20 the state of New South Wales accepted that it was vicariously liable for the conduct of a police officer even though the Court, and in particular Kirby J, raised the issue and suggested that the question should be considered: “Yet no party to this appeal, either in the Court of Appeal or in this Court, asked the court to clarify the precise relationship that existed between the appellant and New South Wales police officers …”

In West v NSW the State quickly moved to ensure that the Commissioner of the Rural Fire Service was not named on the pleadings as the State would accept the liability, if any. In Gardner v the Northern Territory the volunteer captain of the local fire brigade was not named in the court proceedings but even so the Territory moved to ensure that it would accept the liability if any, for any of the parties including the Bush Fire Brigade.

In Fahy and West the relevant people were employees, not volunteers but it is interesting to see that in all these cases, there was no attempt by either the government and now with Echin, a private insurer, to ‘cut loose’ a person even when the courts have questioned the parties admission that they should be liable for the officer and volunteer.

The fact that the parties have made admissions in no way establishes the law. If the parties don’t want to contest the issue, then the court is not required to make any ruling on law so these cases are not a precedent for these issues. I report it here just because it may reassure volunteers and others that there is no trend in the emergency services context, and now in the broader volunteer context, where insurers are keen to abandon their staff and volunteers. This may provide some reassurance to the volunteers in the emergency services.

Michael Eburn
10 June 2013

PS I should add that at the end of the day all of the plaintiff’s claims were rejected by the court which found there had been no negligence by the club.