A correspondent has written that:

I have become aware of a couple of apps (one of which appears to be seeking start up in Australia) which encourages people to install and activate when they experience an emergency and also seek responders to register to receive notification of emergencies.

The website can be found here –  https://goodsamapp.org/home

Here is an alternate site/service – http://vimeo.com/100220010

My question is whether civil liability / wrongs / Good Samaritan legislation that exists in Australia (especially SA) afford protection to a responder who has registered and subsequently responds to an emergency. Also would it matter where they were a non-health professional v’s a health professional?

I would welcome any insight and thoughts that you might have with this emerging use of technology and whether there is any risk of exposure to the registered responders from a wrongs / liability perspective?

If you don’t want to go to the web sites the gist of these apps is that people who have downloaded the app are alerted to a nearby person in need. In one case the app is related to the San Diego fire dispatch system so the alert is sent out by the fire service. The ‘goodsamapp’ requires that the person in need trigger the app on their phone and that sets off the app on nearby phones. According to the video on the website the person who receives the message can ‘accept’ or ‘reject’ the call and that lets the person in need know that someone is coming. The app also calls the local emergency number and hopefully if the app is available in Australia it will be programed to call triple zero.  I assume it is the ‘goodsamapp’ that might be relevant in Australia so it is that app I’ll discuss basing my comments on my understanding of the app, taken from the video on the website, above.

The South Australian good Samaritan provision is found in the Civil Liability Act 1936 (SA) s 74. That section provides that ‘a person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance’ has no ‘no personal civil liability for an act or omission done or made in good faith and without recklessness in assisting’ the person in need. This Act would apply to a person who responds to a call via the app and provides assistance. In that context it would make no difference whether the responder is a medical practitioner or not.

The issue is not the person who responds, it’s the person who doesn’t. Generally there is no duty to rescue (Stuart v Kirkland-Veenstra [2009] HCA 15) but that position can be doubted. In Woods v Lowns (1996) Aust Torts Reports ¶81-376 a doctor was held liable for not responding to assist when asked to do so in a professional capacity. Further in Kent v Griffiths [2000] 2 All ER 474, the London Ambulance Service was liable for not responding in a timely manner to an emergency call (see also ‘Failure to attend by NSW Police and Ambulance’, 18 December 2013).

Signing up for the app is unlikely to somehow create a legal duty to attend when a call for help is received. Whilst not directly applicable, in Hargrave v Goldman (1963) 110 CLR 40 the defendant knocked down a tree that had been set alight by lightning. The fire ultimately escaped and caused significant damage (see Rodger GJ (1961) ‘Report of the Royal Commission Appointed to Enquire into and Report upon the Bushfires of December 1960 and January, February and March 1961, Western Australia’ (Government of Western Australia: Perth)). The defendant denied that he owed any duty of care as he did not cause or light the fire. The plaintiff alleged that by knocking the tree down and taking effort to extinguish the fire the defendant took ‘ownership’ of the fire and thereby owed a duty of care. Windeyer J said (at p 65):

But here what the respondent did in relation to the fire was not done pursuant to any undertaking to the appellants, nor was it done specifically for their benefit. It did not increase the danger of the fire spreading. Probably it diminished it. It seems to me impossible to say that, because the respondent did something to control the fire, he incurred a liability that he would not have incurred had he done nothing. If that were the law, a man might be reluctant to try to stop a bush fire lest, if he failed in his endeavours, he should incur a liability that he would not incur if he remained passive.

As I say that’s not directly applicable but one can draw some links. The person who downloads the app does not do that for the benefit of any particular person, one cannot know who, when or where will use the app to call for assistance. Downloading the app does not increase the risk to anyone. Holding that downloading the app somehow imposed a duty to assist would be to impose a duty that the person ‘would not have incurred had he [or she] done nothing’. That seems contrary to the policy of law.

Even receiving a request for response but failing to respond does not increase the risk to anyone. Further, in Kent v Griffiths, one of the key issues was that the patient waited at home for the ambulance which may not have happened if he had been told the ambulance was not on its way. The ‘goodsamapp’ also calls the emergency number so the person is not waiting for the good Samaritan rather than calling an ambulance. Further if the call is rejected they know they are not waiting for a good Samaritan.

Using the app to call for assistance is not like the situation in Woods v Lowns. In that case the doctor was asked in his professional capacity at his place of work. The person who sets off the app is not calling anyone in particular so they are not calling a particular person because they know they are a doctor. And a doctor who is out, rather than at work at his or her place of practice but not yet seeing patients (as was the case in Woods v Lowns) is likely to have many reasons why they cannot attend. A doctor who is out shopping, or attending to his or her business will not be under a duty to assist and nothing in Woods v Lowns would suggest otherwise.

Even if the person said that they accepted the call, but then did not arrive that is unlikely to give rise to liability as there is no duty to rescue or even respond (Stuart v Kirkland-Veenstra [2009] HCA 15; Capital and Counties v Hampshire County Council [1997] 3 WLR 331). Further, proving that the rescuer would have made a difference if they did arrive would be difficult.

Even if downloading the app did, in some bizarre way, give rise to a duty of care, the question of whether or not a person had to respond would require consideration of ‘the expense, difficulty and inconvenience’ of responding as well as ‘any other conflicting responsibilities’ (Wyong Shire Council v Shirt (1980) 146 CLR 40). So the fact that a person is out and about, unable to attend because of the distance, what else they are doing, the care of children etc would all give a reasonable excuse not to attend.

The question of a duty to respond may not be so clear if the person with the app is a paramedic or police officer, in particular if they at work.   For them, receiving a signal on the app would be like hearing a person calling for help or knocking on the window of the ambulance and asking for assistance. Those officers could be under a duty to assist, depending on what else they are doing at the time, but that duty could probably be met by simply reporting the call if they cannot personally respond (see again ‘Failure to attend by NSW Police and Ambulance’, 18 December 2013).

The one issue here is whether anyone can identify who received and rejected a call.   A person trained in first aid or emergency care can choose to ignore a call for assistance and most of the time, no-one will know that they were there and chose not to assist. With the app there may be a way to identify who received the call and rejected, or ignored, it. Whilst I do not think that person would be liable we all know liability is not the only issue, the process is the problem. Who knows what someone, particularly someone who lost a loved one, would do with that information. The person who ignores or rejects a call for assistance may be subject to criticism or questioning by the media. If they are a doctor or other health professional there may be a complaint. In an extreme case someone may chose to try a legal action and whilst I don’t think they would win, that would be little comfort.

Without knowing the details of the system, and explicitly not giving legal advice to the app developers, the idea of crowd sourcing assistance seems like a novel use of technology but at least in Australian law it is unlikely to create any legal risk for those who might download the app so that they can make themselves available to assist. The most significant risk that I can see is that it may identify who received the call and so then who ignored or rejected the call may also be identified. They would not, in my view, have a legal liability but being identified as someone who had downloaded the app but who then didn’t help when asked could lead to unintended, and possibly unpleasant, consequences.