I received this question from a Director of a First Aid and Emergency Response Training company in Central Queensland. My correspondent writes:
I have had questions from our trained first aider about whether they are covered if they render first aid and something goes horribly wrong.
I have been researching and have found nothing that is concrete for our normal everyday mums and dads that are trained in First Aid. There are acts and regulations that cover Drs, Nurses, Qld Ambulance Paramedics, Qld Fire, Careflight, Royal Flying Doctors Service and others but nothing for First Aiders that don’t belong to an organisation.
I have found an association of first aiders in the UK that seem to be supporting First Aid in some way. What do we need to do to have something in place that covers our front line first aiders?
I look forward to any assistance that you can provide and I will eagerly await your response.
Nearly all Australian states and territories have in place good Samaritan legislation to ensure that people who step forward to provide emergency medical assistance are not held legally liable for their actions provided they act in good faith (Civil Laws (Wrongs) Act 2002 (ACT) s 5; Civil Liability Act 2002 (NSW) s 57; Personal Injuries (Liabilities and Damages) Act (NT) s 8; Civil Liability Act 1936 (SA) s 74; Civil Liability Act 2002 (Tas) s 35B; Wrongs Act 1958 (Vic) s 31B; Civil Liability Act 2002 (WA) s 5AD).
These provisions were introduced following the Ipp Review into the Law of Negligence even though the Review did not recommend that any such legislation was necessary. The Review’s final report said:
The Panel understands that health-care professionals have long expressed a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations. However, the Panel is not aware, from its researches or from submissions received by it, of any Australian case in which a good Samaritan (a person who gives assistance in an emergency) has been sued by a person claiming that the actions of the good Samaritan were negligent. Nor are we aware of any insurance-related difficulties in this area.
Under current law, the fact that a person (including a health- professional) was acting in an emergency situation is relevant to deciding whether the person acted negligently. It may be reasonable in an emergency situation to take a risk that it would not be reasonable to take if there was no emergency, provided that precautions appropriate to the circumstances are taken to prevent the risk materialising.
Also relevant to the issue of negligence is the skill that the good Samaritan professed to have. Suppose a passenger on an aircraft has a heart attack, and in response to a call for assistance by the cabin staff, a 60 year old specialist dermatologist goes to the passenger’s aid. The standard of care expected of the doctor would be set not only taking account of the emergency nature of the situation, but also of the fact that a doctor who has practised as a dermatologist for many years could not be expected to be as well-qualified and able to provide emergency treatment for a heart-attack victim as a cardiac surgeon or even, perhaps, an active general practitioner.
The Panel’s view is that because the emergency nature of the circumstances, and the skills of the good Samaritan, are currently taken into account in determining the issue of negligence, it is unnecessary and, indeed, undesirable to go further and to exempt good Samaritans entirely from the possibility of being sued for negligence. A complete exemption from liability for rendering assistance in an emergency would tip the scales of personal responsibility too heavily in favour of interveners and against the interests of those requiring assistance. In our view, there are no compelling arguments for such an exemption. (Ipp Review of the Law of Negligence, Final Report (Commonwealth of Australia, 2002), [7.21]-[7.24]).
Even though the Ipp Review saw no need for this type of legislation the states and territories all moved to solve the problem of community fear of legal liability.
The exception is Queensland. Queensland has the Law Reform Act 1995 (which replaces the Voluntary Aid in Emergency Act 1973). This Act (as did the 1973 Act) provides that a medical practitioner, a nurse or a member of an organisation listed in the regulations is not liable for acts done in good faith and without gross negligence. There are no regulations (and so no prescribed organisations) under the Law Reform Act 1995, but the Civil Liability Act 2003 (Qld) also provides legal protection for people who provide first aid as part of their duties as a member of an organisation listed in the regulation (s 26) and the organisation is also protected (s 27). The list of protected organisations is set out in the Civil Liability Regulation 2014 (Qld) schedules 1 and 2.
So my correspondent is correct, in Queensland there is no legal protection
… for our normal everyday mums and dads that are trained in First Aid. There are acts and regulations that cover Drs, Nurses, Qld Ambulance Paramedics, Qld Fire, Careflight, Royal Flying Doctors Service and others but nothing for First Aiders that don’t belong to an organisation.
But remember the Ipp Review said no such protection was necessary. Taking into account the circumstances in which first aid is rendered and the care that can be expected the risk of ‘…normal everyday mums and dads that are trained in First Aid’ being sued, even if ‘something goes horribly wrong’ is so remote that it’s what we lawyers might call ‘far fetched and fanciful’. It is still the case that there is no reported ‘Australian case in which a good Samaritan (a person who gives assistance in an emergency) has been sued by a person claiming that the actions of the good Samaritan were negligent’. Remember also that Queensland is the State that has had the oldest piece of good Samaritan type legislation in the Voluntary Aid in Emergency Act 1973 and even though that Act (like the 1995) Act was limited in its application to doctors and nurses, there are no reported cases where it’s ever been relied upon. No-one has ever raised it as a defence, now that may be because potential plaintiffs knew it was there and didn’t bother bringing an action, but a more likely explanation is because people just don’t get sued in these circumstances.
People don’t get sued in these circumstances as they will not be under a duty to attend ie there is no duty to rescue, even if you’re trained in first aid (Stuart v Kirkland-Veenstra (2009) 237 CLR 215); if they do provide first aid the standard of care is to act reasonably in all the circumstances which includes the nature of the emergency and their training and what can be expected of someone who perhaps has done two day course sometime in the last three years. In an emergency the courts are very generous to the fact that a person’s conduct is not to be judged as negligent because, in retrospect, it appears that another course of action would have been better.
[A] man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called “agony of the moment”, he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise. (Leishman v Thomas (1958) 75 WN(NSW) 173 at 175).
In these circumstances the good Samaritan’s duty isn’t to ensure a good outcome; ‘If he volunteers his assistance, his only duty as a matter of law is not to make the victim’s condition worse’ (Capital and Counties v Hampshire County Council [1997] 2 All ER 865).
But back to the question of ‘What do we need to do to have something in place that covers our front line first aiders?’ The answer to that depends on what is meant by ‘we’. If ‘we’ is the broader Australian community then everyone, other than those in Queensland, have that protection. To provide that protection in Queensland what ‘we’ need to do is lobby the state government to amend the Civil Liability Act 2003 (Qld) to include a good Samaritan provision that mirrors the legislation in every other state and territory.
If, on the other hand, ‘we’ means my correspondent’s First Aid and Emergency Response Training company then they too can lobby their local MP or they could try to find an insurance company that was willing to offer insurance to be sold to those who do a first aid course. I recall some years ago St John Ambulance (NSW) did offer an insurance policy for a small premium on top of the course fees but I’ve not heard of that in recent times so I assume that is no longer available.
Providing indemnity cover for ‘normal everyday mums and dads that are trained in First Aid’ would be a good risk for an insurance company – they can get the premium to cover a risk that is virtually non-existent. Insurance could however change the risk. One-thing lawyers understand is that litigation for negligence is about the money, courts can offer nothing else but money so there is no value in suing someone who does not have money to pay the claimed damages. That’s one thing that protects ‘normal everyday mums and dads that are trained in First Aid’, apart from almost insurmountable legal difficulties they’re not worth suing. Any injured person would look to a more financial defendant, eg the defendant that caused the accident, the hospital or state ambulance service etc. If, however, there was insurance, that would mean that there is someone behind the first aider with the funds to pay any damages and costs. That could change the risk. In that case the plaintiff’s ‘gamble’ of taking action has better odds so the perverse result of advocating for first aid insurance could be that, rather than protecting first aiders, it increases the risk that they could be sued. The risk of legal action would remain small for the legal reasons mentioned above, but it is something to consider.
Australian Emergency Law 
Hi Michael,
I’m delving into the ‘commercial emergency service’ arena here, something which I don’t believe has warranted a great deal of conversation, however this person has raised a good question and I’d like to take it a step further.
In reference to a specific part of your most recent post:
‘People don’t get sued in these circumstances as they will not be under a duty to attend ie there is no duty to rescue, even if you’re trained in first aid (Stuart v Kirkland-Veenstra(2009) 237 CLR 215); if they do provide first aid the standard of care is to act reasonably in all the circumstances which includes the nature of the emergency and their training and what can be expected of someone who perhaps has done two day course sometime in the last three years. In an emergency the courts are very generous to the fact that a person’s conduct is not to be judged as negligent because, in retrospect, it appears that another course of action would have been better.’
What constitutes a ‘duty to rescue’?
Does being paid as a corporate entity hired to provide protection to a site or event impose a ‘duty’? Let’s say that my organisation was hired to protect a Motorsporting event, specifically to provide emergency medical response (at a Degree-qualified paramedical level) and a rescue capability for Vehicular Accidents. We will assume that the rescue personnel are adequately trained in the PUA courses for Road Crash Rescue. Obviously the event organisers would expect us to respond as promised in return for being paid, (which we would) however does this constitute a ‘duty’ as you described? Does the actual responsibility still lie with the Queensland Fire and Emergency Service even though appropriately qualified (and paid) rescuers are on-site specifically for that purpose?
What I’m getting at is wether or not my staff would be deemed negligent for failing to release a trapped casualty from a vehicle OR choosing not to commence rescue if the job was deemed too dangerous without QFES support.
Your insight is appreciated as always.
.
The ‘duty’ that I was referring to was and is a duty imposed by common law. The common law (developed by judges, over the centuries) says that an individual does not have a legal obligation to help a stranger even if helping would be easy – no duty to rescue. What you are talking about is not however the duties that would be imposed by the common law (or not just those duties) you are adding a contract. Contract law says that if you enter a bargain (you offer your services in return for your fee) then you have to honour that bargain. So your organisation is under no obligation to render first aid and rescue services just because you know there is an event on and it may help; but you are under a duty to do so if you agreed to do so in exchange for ‘valuable consideration’, in this case, the fee.
So your company would be under a duty to provide rescue and first aid services because you said you would. As for ultimate responsibility, that could be with the state agencies if you rang them. For example, the QFES are the combat agency for fire, if I have fire in my house and ring 000 for their help they’ll come and ‘take charge’. On the other hand if I have a fire, I put it out and don’t ring them, it’s nothing to do with them. At a sporting motor racing event if the onsite rescuers can and do do the job, it’s not really an issue for QFES but if they can’t (eg it’s too dangerous without QFES support) then you would ring 000 they would come and they (or the police, depending who’s the lead agency in the relevant emergency plan, presumably the plan dealing with road crash rescue) in which case the onsite rescuers become a resource to be used as part of the ‘all agencies’ response.
Your company would not necessarily be negligent for failing to release the casualty, rather you’d be in breach of contract (depending on the precise terms of the contract and what services and skills you offered). As for negligence whether an action is negligence always requires consideration of a multitude of factors including risk to staff – if it really is too dangerous and you need extra resources, you can’t be negligent provided you do what you can and get those resources to hand.
In short though, the discussion on the ‘no duty to rescue’ in the original post was talking about people trained in first aid who might just become aware that a stranger could use their assistance. It was not about people or companies that are in the business of providing rescue and emergency services for a fee. Those companies don’t owe a duty to rescue strangers, but they do owe duties to their customers to do the job they agreed to do on the terms upon which they agreed to do it.
Hi Michael, thank you for a well researched article that helps me build my knowledge as a first aid instructor. Could you please update my understanding as to whether the Northern Territory has any specific legislation for ‘civilians’ imposing the need to render assistance as a “duty to rescue”? My understanding was that everyone was required to stop and assist (presumably in response to the distances involved) whereas in Victoria under the Road Safety Act (I think), people “directly involved” in a collision are required to render assistance within their skills and capabilities. Failure to do so can be punishable for fines up to $140,000 or150,000 and/or ten years imprisonment. Any assistance you can provide would be much appreciated.
It is true that the Northern Territory is unique in that it is a criminal offence, punishable by up to seven years’ imprisonment for a person, who is able to provide “rescue, resuscitation, medical treatment, first aid or succour of any kind” to “callously” fail to provide that treatment or assistance when it is required (Criminal Code (NT) s 155).
The obligation is not a general obligation to assist anyone in need. It is limited to cases where the person in need is suffering from “a potential or actual life-threatening injury.” It must also be shown that the accused was physically and mentally capable of rendering assistance, they were sufficiently close to be able to provide assistance and they knew that someone was in need of assistance. Even where all these factors are present no offence is committed unless the accused “callously” refuses to help. To act “callously” requires a deliberate and conscious choice not to assist. That choice must be in circumstances where it would “offend common standards of respect, decency and kindness in the sense that a reasonable person would regard the accused’s failure as callous” (Salmon v Chute (1994) 94 NTR 1). In Salmon v Chute the accused was acquitted of this particular offence even though he was involved in a ‘hit and run’ accident where a young child was killed. Kearney J sitting as the Supreme Court hearing an appeal from the Magistrate’s court accepted that he failed to stop as he ‘panicked. Kearney J said:
The driver’s conviction and sentence of 4 months imprisonment for failing to stop and render assistance, and report the accident to police (as was, at the time, required by s 138 of the Criminal Code (NT)) was confirmed.
The rule that drivers must stop and render assistance at an accident applies in all jurisdictions – see Road Transport (Safety And Traffic Management) Act 1999 (ACT) s 16; Road Transport Act 2013 (NSW) s 146; Criminal Code (NT) s 174FA; Transport Operations (Road Use Management) Act 1995 (Qld) s 92; Road Traffic Act 1961 (SA) s 43; Traffic Act 1925 (Tas) s 33; Road Safety Act 1986 (Vic) s 61; Road Traffic Act 1974 (WA) s 54).
That is fantastic. Many thanks for your advice Michael. It will make my explanations more complete.
Ok this has missed a very major point as first aider insurance when no duty of care exists.
What happens if the first aider damages their back removing a victim to a safe location. At present in Victoria there are no safety nets. Any risk for injuries to themselves will undertaking life saving tasks falls on themselves. Sadly the situation is also that the action can be deemed an uninsurable event for the first aider. Termed as a ‘self inflicted injury’.
Sadly I’ve fallen into that basket. I will do it again if I’m in the same position.
This post was about insurance to cover potential liability for first aiders who might face some claim arising over their conduct. It was not intended or discussing insurance to cover first aiders who might be injured. But the risk of being injured is something that can happen to anyone anytime so people take out health insurance and loss of income insurance and that would be relevant in these circumstances too. Where a person is injured doing first aid at an accident that someone else has negligently caused, the person who caused the accident can also be liable for the damage suffered by the first aider – see “Cop sues offender’s family” (May 22, 2013).
But, you’re right, if there is no negligence by the person being rescued or any person who caused the injury then the risk of injury to the first aider falls to them. One can only transfer the cost of injury or damage if one can prove negligence, or buy insurance.
Hi Michael, just another clarification on one scenario I do not think is covered in the article above. If I am a Professional Paramedic (BSc) but choose to volunteer as a ‘first aider’ for a public event will I need liability insurance or will I be covered under the Good Samaritan legislation. I just wondered if this altered as
(i) I was a professional Paramedic
(ii) this will be an organised event with general public in attendance.
Obviously I will only be rendering first aid, no drugs (exception of ? aspirin 300mg for ? cardiac chest pain prior to 000). So will I be covered under the Good Samaritan Act…with exception of negligence if I do go rouge! Thanks Jerry
It is my view that if you are volunteering to provide first aid you are not acting as a ‘good Samaritan’ (though that’s not been tested). The parable of the good Samaritan is someone who stops to assist a stranger – not someone who is holding themselves out as being able to provide first aid – see Who to treat? A question for St John first aiders (June 30, 2013). The event organiser has a duty to those that are taking part and that would include a duty to ensure that there are emergency procedures in place so it is likely that anyone is injured due to poor care by you would sue the organiser, not the first aider.
Further, as a volunteer for the event you’ll be covered by the volunteer provisions that exist in most states- ie that say that a volunteer is not liable but the organisation for which they volunteer is. If it were me I’d make sure that I was volunteering for the organisers of the public event, not acting as an independent contractor, and that their insurance covered you as it would all other volunteers at the event.
And if you are covered by either the good Samaritan OR the volunteer provisions, they do provide protection if you are negligent, that’s the point. If there’s no negligence, no protection is required.
Thank you heaps Michael. I want to do the right thing for the small group of enthusiasts but don’t want to leave myself open to liability.