This question relates to the installation of Automatic External Defibrillators in public places. My correspondent writes:
Hi Michael, was just on LinkedIn in and I saw this Q&A posted by a sales rep/manager for a company that manufactures AED’s. I attached a screen shot of the Q&A. I have my ideas on what this gentleman has put forward…basically I see this as scaring people and organisations into a sale! I’m all for AED’s in public locations and workplaces etc…but I see this as quiet an uneducated “comment” on the topic..
So in saying all that I pose the question is there any potential liability for an organisation not having an AED installed?
The screen shot appears below but do note that I have edited it (and the original question) to de-identify the company and the author of the answer.
I have largely answered the issues raised in an earlier post – see Making the installation of AED’s compulsory (September 27, 2015). In that post I noted ‘that there is very little relevant legislation’ so I’m not sure what this person means by the claim ‘state and local laws have gone to great lengths to encourage the placement of AEDs’. ‘Local Laws’ would mean council bylaws that are impossible to talk about (there are some 571 local authorities in Australia (http://regional.gov.au/local/) and no-one can find or know what all the local laws are). To refer to ‘state and local laws’ sounds awfully like a reference to US law where local authorities (cities and counties) have much greater legislative power than Australian councils.
It is true that there are no obvious state laws that would present a burden or ‘prevent anyone desiring to install AEDs from doing so’.
The controversial claim is that ‘AEDs have become so commonplace, the standard of care has now shifted creating a potential liability for organizations that do not have AEDs installed’. That is certainly NOT the case in Australia. In my earlier post I spoke about obligations under Work Health and Safety Laws. There I said:
For example, the Work Health and Safety Regulation 2011 (NSW) requires an employer to ensure that there is provision for first aid at the workplace. As with other aspects of this Act, this requires a risk assessment. Some workplaces such as shopping centres may well consider that there is a sufficient risk to warrant putting in a defibrillator.
But what this person is referring to when he says ‘the standard of care’ is the common law of negligence. Could a business be liable in negligence for not having an AED in place? My view is ‘no’ and in particular no if what is intended is an AED for use on members of the public rather than employees or in some cases clients – so this answer is not intended for a doctor’s surgery or nursing home, but what I’m talking about is public access AEDs.
Assume I operate a shopping centre – is it negligent not to have an AED? The person who might use it is a customer who has a sudden cardiac arrest in my centre. I don’t know who that will be and the risk that it will happen on any given day is very low, but with a sufficient number people passing through over a long enough period one couldn’t say the risk is ‘far fetched and fanciful’ (Wyong Shire v Shirt (1980) 146 CLR 40, 47 (Mason CJ)). But that doesn’t alone give rise to a duty of care. If a person has a sudden cardiac arrest the centre owner didn’t cause it. This is a person in need of assistance but there is no duty to rescue (Stuart v Kirkland-Veenstra  HCA 12). As Justices Crennan and Kiefel said (at ):
The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm… The law draws a distinction between the creation of, or the material increase of, a risk of harm to another person and the failure to prevent something one has not brought about…
The shopping centre has not created the risk of a heart attack. But people are invited into a shopping centre and there is no doubt people will become sick and injured and need assistance. The proprietors can’t sensibly ignore that so they will have to have first aid and emergency response procedures in place, not just for heart attacks but for all sudden illness. So let us assume for the sake of the argument that there is a relevant duty of care will it extend to the installation of an AED.
According to Mason CJ, assuming there is a relevant duty, it is up to the court to
… determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position. (Wyong Shire v Shirt (1980) 146 CLR 40, 48).
The risk of a sudden cardiac arrest is as bad as it gets. Without assistance the person will die. What is the degree of probability that it will occur? It depends on your time frame, in my earlier post I said:
First I’m told that there are 30 000 sudden cardiac arrests a year in Australia. That would equate to about 82 per day. The chance that on any given day there will be a sudden cardiac arrest we can assume is 1. But the chance that it will happen in any given location, shopping centre or library is very small. To give a personal anecdote, I’ve been trained in first aid since I was 13 years old. I have never had to do CPR simply because I was the right person at the right spot at the right time. Putting an AED in a spot, even a high traffic spot like a train station or shopping centre does not mean it will ever be in the right spot.
So it’s a risk assessment. The more people coming through a public area the higher the risk that it might occur, but there could be no question that some public spaces will never see a sudden cardiac arrest so that they may install an AED that would never be used.
Expense; AEDs do cost. Again to quote my earlier post:
Having an AED does cost. Not only the purchase price but maintenance and training staff. Requiring premises to have an AED adds compliance costs, ie some process to ensure that the rules are being complied with.
There would be no significant ‘difficulty and inconvenience of taking alleviating action [ie installing an AED, nor] any other conflicting responsibilities’ that would stop their installation.
With some assumptions then we might argue that given a large public space, with lots of people, the risk that someone will have a sudden cardiac arrest is reasonably high, it will be catastrophic for them and the installation of an AED is neither complex nor does it conflict with other responsibilities. There are costs but they are probably not very much (see http://defibshop.com.au/product-category/defibrillators/ where prices seem to start at about $2200).
So will a centre be liable for not having one? No. Why not? Because even if someone has a sudden cardiac arrest and dies, their estate would have to argue that had there been a defibrillator it would have made a difference. But an AED on the wall won’t achieve anything.
Even if the AED is close to a person with a cardiac arrest it does not mean it will be used. Someone would have to know that the AED is there, or likely to be there. An untrained person may not know what an AED is let alone to look for one. Even if they can see it they are unlikely to know what it is or that it is something that could be used without training. The chance that there is an AED and a trained person at the right place at the right time is even lower.
The AED has to be used and even if it’s used it doesn’t guarantee success. People still die. So proving that the absence of the AED made the difference between life and death will be virtually impossible.
None of this is to suggest that they are not a good idea, but one can see why businesses may not be willing to invest and more importantly, why governments may not want to compel business to invest in the equipment that imposes a cost with limited chance that it will be used.
So the operator of a large urban shopping mall may well consider that investing in an AED is good practice, reflective of their general duty to have in place emergency procedures and they probably have emergency wardens who could be trained in the use of the AED. That’s a good idea but it doesn’t mean that there could be any claim in negligence if a person died in the centre and the AED could not be found or was not used.
The issue becomes clearer when you move down to smaller places with less public access. The term ‘Organizations’ [sic] covers a myriad of business with different risks. The owner of a small corner shop will probably never have someone have a cardiac arrest in their store. The statement ‘the standard of care has now shifted creating a potential liability for organizations that do not have AEDs installed’ is just too broad and simply does not reflect Australian law. It may be true for some places, so your local Westfield may be remiss if they don’t have one or two, but saying that this would or could actually lead to a finding of negligence or liability is a very long stretch.
Michael, I follow your posts with interest. I am a registered nurse, first aid trainer and advocate for widespread availability of AEDs and have written a book ‘Back in a Heart Beat’ which bust the myths associated with cardiac arrest and explains why, how & when bystanders, with or without first aid training, could save a life by applying an AED. My own husband did not survive a cardiac arrest. It is now compulsory (since 1 July 2014) under Australian first aid training regulations that participants must be assessed as competent in the use of an AED as well as in the performance of CPR. The situation now exists that employers are training their staff to provide a lifesaving skill for which they are not required to actually provide the device that enables those staff to perform that skill. My question is this – doesn’t this now place greater responsibility on the employer re duty of care and safety? Although state & territory laws do not mandate the provision of AEDs such as fire extinguishers are mandated, what is the potential risk of liability should there be an unsuccessful outcome from a cardiac that might have been prevented if an AED had been available? Is there the potential for next-of-kin to take civil action for breach of duty of care or for failing to provide the appropriate equipment for which they have trained their staff?
Anne, thanks for your comment. What are ‘the myths associated with cardiac arrest’?
You say ‘It is now compulsory (since 1 July 2014) under Australian first aid training regulations that participants must be assessed as competent in the use of an AED.’ I have looked at the register of national training competencies at http://training.gov.au/. For both the packages listed on my first aid certificate – HLTFA311A ‘Apply first aid’ and HLTFA211A – ‘Provide basic emergency life support’- the ‘Essential knowledge’ includes ‘Understanding of the use of an Automated External Defibrillator (AED), including when to use and when not to’. But just because a person has that understanding does not mean that a person with a first aid certificate has to have, or have access to, an AED. I have a first aid certificate but it does not mean I have to always have a first aid kit.
My answer is that I don’t think it does affect an ‘employer’ or anyone else’s duty of care. The existence of a duty of care depends on consideration of many ‘salient features’ (see the list provided by Allsop P of the NSW Court of Appeal in Caltex Refineries v Stavar (2009) 75 NSWLR 649 and reproduced in my post Treatment in a Victorian hospital carpark (August 19, 2015)).
Even where there is a duty of care, and there’s no doubt employers have a legal obligation to provide first aid and emergency services (see for example Work Health and Safety Regulation 2011 (NSW)) what the duty requires is complex. The answer to what a reasonable person should do depends on the formula set out in Wyong Shire v Shirt (quoted in the post above) – as well as in the uniform Work Health and Safety legislation (see s 18 in NSW) and civil liability legislation (see for example Civil Liability Act 2002 (NSW) s 5B). The legislation and the case law all point in the same direction and would be familiar to anyone as ‘risk assessment’. We no longer have regulations that define what the contents of a first aid kit, how many trained first aiders or their qualifications an employer must have on site depending on the number of employees. Today it is up to employers to think about their risks and respond accordingly.
Occupiers also owe a duty to take reasonable care of people they invite onto their premises so the managers of public spaces also have a duty but it is not axiomatic that the reasonable response to that duty extends to the installation of AEDs.
So you ask ‘what is the potential risk of liability should there be an unsuccessful outcome from a cardiac that might have been prevented if an AED had been available’ and that is the point of my discussion, above. That is the potential risk is in my view non-existent (remembering I’m not talking about doctor’s surgeries, nursing homes and the like). The civil law awards damages to a person who can show that the defendant had a duty to do something (and here you’re arguing a duty to install an AED and that is not likely) and they failed to act on that duty and that it made a difference. The burden of proof is on the balance of probabilities. That is a successful plaintiff would have to show that the presence of an AED would, more likely than not, have lead to a different outcome. That it ‘might have’ made a difference is not enough (see Tabet v Gett  HCA 12; Luntz, Harold “Loss of Chance in Medical Negligence”  UMelbLRS 14).
Would the presence of an AED affect the outcome? Well that was also the point I was trying to make, above. The presence of an AED won’t make much of a difference. Sure the absence of an AED means that whatever benefit an AED can provide can’t be delivered. But the presence of an AED doesn’t guarantee that the benefit will be delivered, it is only the first step. You need someone to actually get it, and use it and it needs to actually work. If first aiders have one they have to be contacted, arrive and use it within the critical time.
Take my work place for example, the ANU is a large multi building campus. There are AEDs on campus and even notices about where but not every first aid officer has one. If I had to assist someone with a cardiac arrest I would have to wait for security, or someone else to go and get one and the ambulance service is likely to get there first. The chances of an AED being used by me is I would suggest pretty small. Security (who also act as first responders) I imagine have one in their car but they’ve still got a response time and may think their more effective guiding the ambulance to the right building (because without guidance they could spend 4 days driving around the campus and still not find where they are meant to be).
If an AED is handy is great, but proving that, in any particular case it is ‘more likely than not’ that the patient would have survived to successful discharge if there had been an AED present seems to me to be impossible. And it has to be a successful discharge, if all the use of an AED does is lead to a return of spontaneous rhythm but the person dies 12 hours later in hospital, there is going to be very little in they way of compensable damages.
I don’t know what the survival rate of CPR with the use of an AED is but I do note that the University of California reported in Science Daily that the survival rate for people who receive CPR is about 37% with only a 13% long term survival rate. A quick review of the literature does say:
• “Conversely, deployment of AEDs in office buildings, apartments, and houses was not cost-effective. An exception, however, was noted for people at high risk of sudden cardiac arrest; these were patients with a left ventricular ejection fraction less than or equal to 0.35” ‘Use of automated external defibrillators in cardiac arrest: an evidence-based analysis’ Ont Health Technol Assess Ser. 2005;5(19):1-29. Epub 2005 Dec 1; and
• “Wide dissemination of AEDs throughout a community increases survival from cardiac arrest when the AED is used; however, the AEDs are utilized in a very small percentage of all out-of-hospital cardiac arrests. AEDs save very few lives in residential units such as private homes or apartment complexes. AEDs are cost effective at sites where there is a high density of both potential victims and resuscitators. Placement at golf courses, health clubs, and similar venues is not cost effective; however, the visible devices are good for public awareness of the problem of sudden cardiac death and provide reassurance to patrons” Roger A. Winkle MD, ‘The Effectiveness and Cost Effectiveness of Public-Access Defibrillation’ Clinical Cardiology, Volume 33, Issue 7, pages 396–399, July 2010
If that’s the science there may be some claim that, for example, people employed as first aid officers in large industries should be issued an AED but it certainly can’t establish legal liability for not installing a public access AED. But again it is a question of risk assessment and it certainly doesn’t mean that places like shopping centres and other high traffic areas shouldn’t put one in. But they won’t be liable if someone has a cardiac arrest and dies and there was not AED or there was but no-one found it or used it.
So in answer to your questions:
• What is the potential risk of liability should there be an unsuccessful outcome from a cardiac that might have been prevented if an AED had been available? Very small.
• Is there the potential for next-of-kin to take civil action for breach of duty of care or for failing to provide the appropriate equipment for which they have trained their staff? There is always potential for people to take civil action because you don’t have to prove your case to start civil action, that is what the court is there for. So there’s ‘potential’ but it doesn’t mean it will be successful – the issue are the factors set out in Wyong Shire, above. In my employer’s case it might be possible to argue that it is a failure to take reasonable care to put an AED in the security first response vehicles, but no-one would suggest they have to issue an AED to every first aider. And even where there is an AED the plaintiff would have to prove that it is more likely than not that it would have made a difference (not that it might have) and that, on my understanding of the science, would seem impossible.
I was recently told that some medical clinics don’t have AEDs installed because they’re worried that if they have one, it will give rise to some additional duty of care that could wind up with them getting sued. I am wondering if this is true?
I note your article above specifically says that it’s not “intended for a doctor’s surgery or nursing home”. Thinking about those situations, I would assume that the likelihood of cardiac distress would be much higher in a medical surgery than it is in say a shopping mall or office block. And patients are specifically attending medical clinics to seek medical help. So if anything, I would assume that negligence would be a bigger risk if the doctors *don’t* install an AED, than if they do?
I can intuitively believe that if a doctor completely bungles the use of an AED the tort of negligence could come in to play. But surely any time a patient attends a doctor’s surgery and the doctor completely bungles up the treatment in a negligent manner than similar risk of an action in tort arises?
I would be very interested to hear your thoughts on this?
You can see my response to this comment at https://emergencylaw.wordpress.com/2018/09/10/choosing-not-to-install-an-aed-for-spurious-reasons/
I am the author of the book âBack in a Heart Beatâ which addresses the myths and fears associated with sudden cardiac arrest and bystander use of an AED.
Since 1 July 2015, assessment of competency in the application of an AED has been a compulsory and key element of Australian accredited first aid courses such as HLTAID001; 002; 003; 004 etc. It can no longer be just demonstrated by the trainer. Each participant in first aid training must individually demonstrate that he/she can perform competent CPR AND apply an AED.
In workplace environments where OH&S legislation requires that a prescribed number of personnel must be trained and up-to-date in accredited first aid training, the situation now exists that
âemployers are training their designated staff to provide a lifesaving skill for which they are not legally required to supply the device that enables the trained to staff to perform that lifesaving skillâ.
Could there now be an argument that there is a duty of care or even a potential civil liability risk for employers if an AED is not provided and staff are trained and qualified to use it but donât have access to the device?
Defibrillation is a vital link in the Chain of Survival and the evidence is clear that early defibrillation significantly improves the likelihood of survival from sudden cardiac arrest. Could bereaved next of kin, therefore, potentially launch a civil action against a business for not equipping their staff with the equipment that they were trained to use?
Looking forward to your response
Author, Speaker, Registered Nurse, Training Consultant
Founder of NFP Urban Lifesavers and author of Back in a Heart Beat
Anne, no I don’t think one could demonstrate negligence in failure to install an AED. The obligation to install any equipment requires a risk assessment so it may be essential in some circumstances (eg a medical practice) but in others it’s a question of cost v benefit and any potential plaintiff would have to show that it would have made a difference. An almost impossible burden – how could anyone prove that it is more likely than not that a person in cardiac arrest would have survived if an AED had been used? This question was the subject of that earlier post and the post Making the installation of AED’s compulsory (September 27, 2015) . My opinion described in those two posts has not changed.
I have recently completed a Paramedical Science diploma course and being a former Police Officer for more than 25 years, I am all for AED accessibility anywhere. I have started a Facebook page called THE SHOCKING TRUTH and I am committed to increasing availability and accessibility of AED’s throughout Australia. For people who needed one and did not have one available to save the life of a loved one, family member, friend of anybody for that matter, I am sure that they would react the same way that I have responded…. Fix it…..Do Something……… Get them out there.
It gives you a whole new perspective on the status quo. Attending incidents where there are unconscious people makes for a harrowing and stressful wait for an AED. Advocate for life.