A correspondent wrote:
I am a first aid trainer in Victoria. While I know the Good Samaritan law in Victoria (Wrongs Act of Victoria 1958), what are the various acts around Australia, and how are they different from each other? What are the similarities?
I have written extensively on the good Samaritan laws but that’s OK. I know what’s been written on this forum over 8 years but people who are new to it do not and finding relevant earlier posts isn’t easy. The answer below is, however, largely a cut and paste from earlier posts.
Every State has good Samaritan type legislation:
- Civil Laws (Wrongs) Act 2002 (ACT) s 5;
- Civil Liability Act 2002 (NSW) s 57;
- Personal Injuries (Liabilities and Damages) Act (NT) s 8;
- Law Reform Act 1995 (Qld) s 16 and Civil Liability Act 2003 (Qld) s 26;
- 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. Today a good Samaritan enjoys legal immunity for actions that are alleged to have been negligent, provided the good Samaritan was acting ‘in good faith.
In the Australian Capital Territory, New South Wales, Tasmania and Victoria, a Good Samaritan provides assistance to a person who is, amongst other things, ‘at risk of being injured’ (ACT and NSW) or ‘apparently at risk of death or injury’ (Tas and Vic). In the Northern Territory and South Australia, ‘emergency assistance’ means ‘emergency medical assistance’ or ‘any other form of assistance to a person whose life or safety is endangered in a situation of emergency’. The Western Australia legislation provides protection for a person ‘at the scene of an emergency’ who assists ‘a person in apparent need of emergency assistance’.
The exception is Queensland. The Law Reform Act 1995 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. 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). The organisation also benefits from legal protection (s 27). The list of protected organisations is set out in the Civil Liability Regulation 2014 (Qld) schedules 1 and 2. That does mean that in Queensland there is no statutory immunity for a person who just steps up out of the crowd, maybe having completed a first aid certificate, but who is not a registered health professional or a member of one of the listed organisations.
For posts on the law and good Samaritans 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);
- Insurance for First Aiders (August 13, 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);
- RFS volunteers as roadside good samaritans (February 4, 2015);
- Good Samaritan legislation and scope of practice (March 27, 2015);
- American Good Samaritan protected by Ohio Statute (May 20, 2015);
- Doctors as (Airborne) Good Samaritans (January 12, 2016); and
- Excluding Good Samaritan Protection For The Intoxicated (March 17, 2016);