Another question from my RFS volunteer correspondent (see ‘Response’ driving with NSW RFS’ (February 2, 2015)) but for this one, the answer is more cross-jurisdictional:
Following on from the West litigation, is there still any positive duty to act imposed on emergency service workers/volunteers? In following the same rationale for the WA Dr case, it is not uncommon for members of fire services and SES to have stickers on their private cars indicating membership of these organisations. Are we obliged to stop if we, for example, happen across a MVA on the way to work where clearly other commuters have stopped and assistance (even if a phone call) is being rendered? Should we stop and lend our (theoretically) higher level of first aid / emergency management experience, or do we have no higher duty of care than the next “civilian” driver?
I have made a number of earlier posts that touch on these issues; see
- Nurses as ‘good Samaritans’ – can I be liable if I do stop? (March 22, 2014)
- Doctors as ‘good Samaritans’ – do I have to stop? (March 23, 2014)
- NSW SES Good Samaritans (August 25, 2014)
- Non-operational staff travelling in marked emergency service vehicles (NSW) (October 29, 2014)
- Further legal ruling affecting ‘Doctors as ‘good Samaritans’ – do I have to stop?’ (January 3, 2015)
The ‘West litigation’ that my correspondent refers to is Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales  ACTCA 45, the litigation arising out of the 2003 Canberra fires. In the trial (Electro Optic Systems Pty Ltd v The State of New South Wales; West & West v The State of New South Wales  ACTSC 184), Higgins CJ referred to the decision in Lowns v Woods (1996) Aust Torts Reports 81-376 where a doctor was liable for not responding to an emergency. Higgins CJ said (at 314) ‘In my view, the same would be the case in respect of trained rescuers who hold themselves out as skilled, willing and able to assist’ ie in his view they too would be under a duty to assist. But there are key issues, in Lowns v Woods the doctor was at work, ready and willing to see patients. Not ‘off duty’ and driving in his private car to whatever destination he or she had to get to. Further, the Court of Appeal found that Higgins CJ had got the law wrong in most respects (see ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires (November 3, 2014)). They found that there was no duty of care owed in that case (and see also Queensland Fire and Rescue not liable after factory fire (October 3, 2014)).
These decisions are not directly on point. They are saying that a fire brigade does not owe a duty to those whose properties are threatened by fire as they have to in fact consider the community benefit. The question of individuals and whether they owe a duty to a person in need of first aid is different.
The fundamental rule is that there is no duty to rescue (Stuart v Kirkland-Veenstra  HCA 15). There is no obligation to go and assist another even if one can without cost. You can watch a person drown in a shallow pool and there is no legal liability. There might be if you are a life saver at that pool, or the rescue squad that’s been called to rescue them, but not if you have no prior relationship with them.
In Dekker v Medical Board of Australia  WASCA 216 the West Australian Supreme Court of Appeal rejected the idea that a doctor owed a general duty to render assistance at a car accident. They said (at ):
The duty, as formulated, arises without regard to the mental state of the doctor, the circumstances in which the doctor is, or may be, aware that a motor vehicle accident has occurred in his or her vicinity, and the circumstances of the accident. The duty as formulated would apply, for example, to a medical practitioner who lacked mental capacity or, for example, was affected by alcohol (eg, a doctor who has been drinking and takes a cab on the way home at the end of a long social evening). The duty would apply even if there were other emergency services on their way or already in attendance. It would apply irrespective of whether the doctor has other medical commitments (eg, if the doctor were on his or her way to perform an urgent operation). It would also apply irrespective of other, non-medical, commitments that the doctor may have (eg, a doctor on the way to a court to give evidence in answer to a subpoena). The duty as formulated would also require performance irrespective of the location of the accident. Thus, it would apply equally in a remote location in the bush where there is no town and no ready access to police or other emergency services, as in a city where the occupants of the vehicle or passers-by may be readily in a position to contact police or ambulance services. It would also require the doctor to attend where, in the circumstances in which the doctor is made aware of the accident or possible accident, it would appear that any injury would be minor.
The same could be said of anyone such as an RFS volunteer. To say ‘there is a duty to assist’ fails to consider the myriad of circumstances that might arise.
To return to the question:
Q: Is there still any positive duty to act imposed on emergency service workers/volunteers?
A: There has never been a ‘positive duty’ on off duty workers and volunteers and the issue’s never been tested otherwise. Fire brigades are generally not under a duty to protect particular property threatened by fire.
Q: It is not uncommon for members of fire services and SES to have stickers on their private cars indicating membership of these organisations. Are we obliged to stop if we, for example, happen across a MVA on the way to work where clearly other commuters have stopped and assistance (even if a phone call) is being rendered?
A: No, there is no duty to rescue (though your service may take a different view but that is about internal discipline and expectation, not the law)
Q: Should we stop and lend our (theoretically) higher level of first aid / emergency management experience, or do we have no higher duty of care than the next “civilian” driver?
A: It’s up to you taking into account all the relevant factors, time of day, danger to you and others, other commitments etc, but (and this is not a legal answer) I would think of course you should stop. Why else do you volunteer to be part of the emergency services if it’s not to help when you can? Must you stop? No. If you do stop it would be expected that any care you provide would be ‘reasonable’ in the circumstances but unless you’re a volunteer ambulance officer your first aid skills are probably about the same as anyone else’s with a first aid certificate. In any event, in the event of an extremely unlikely and unheard of claim that you were in some way negligent, you would be protected by the good Samaritan provisions (see Civil Liability Act 2002 (NSW) s 57 and equivalent provisions in other states and territories).