Today’s question comes from a NSW paramedic educator who asks me to clarify the relationship between the Health Services Act 1997 (NSW) s 67I, the Law Reform (Vicarious Liability) Act 1983 (NSW) s 10 and the Civil Liability Act 2002 (NSW). My correspondent is:
… in a bit of quandary as my students continue to quote protocols and the Health Services Act as their source of “protection” (vicarious liability).
I’ve read your discussion in the text (p232-3) around Law Reform (Vicarious Liability) Act 1983 and the Civil Liability Act 2002 and I am wondering if I need to introduce them in tandem, and enter into the discussion?
The reference to ‘the text’ is, I infer, a reference to my book Emergency Law (4th ed, 2013, Federation Press).
Health Services Act 1997 (NSW) s 67I
Let me start with the first two sections. The Health Services Act 1997 (NSW) s 67I says:
A member of staff of the Ambulance Service of NSW or an honorary ambulance officer is not liable for any injury or damage caused by the member of staff or officer in the carrying out, in good faith, of any of the member’s or officer’s duties relating to:
(a) the provision of ambulance services, or
(b) the protection of persons from injury or death, whether or not those persons are or were sick or injured.
Any student of negligence law will know that the law expects anyone to provide ‘reasonable care’ that is care that might be expected from a reasonable (not the best) practitioner of the same profession. Failure to provide ‘reasonable care’ in all the circumstances, if it causes loss or damage, amounts to negligence.
The effect of s 67I is to reduce the standard of care for NSW Ambulance employees and honorary officers. They don’t need to provide ‘reasonable care’ they need only act in good faith. To act in good faith more than honest ineptitude is required – there must be ‘real attempt’ (Mid Density Developments Pty Limited v Rockdale Municipal Council  FCA 408) to provide care in the best interests of the patient but an error of judgment or a mistake that might amount to negligence will not lead to personal liability if it was made ‘in good faith’.
A person who wants to sue a NSW Ambulance paramedic or honorary officer then has a higher burden than a person who wants to sue someone who is not protected by s 67I or some equivalent. But who would want to sue the paramedic? They are unlikely to have the money or resources to meet any judgement. Any sensible plaintiff wants to sue the Ambulance Service of NSW that is, in turn, insured by the NSW Self Insurance Corporation (NSW Self Insurance Corporation Act 2004 (NSW)). The ambulance service is vicariously liable for its employees and honorary officers.
Apart from being vicariously liable for the default of its staff, the ambulance service also owes its own obligation to ensure that patients receive reasonable care. The ambulance service is negligent if its staff are negligent or if it fails to train, supervise or equip them as a ‘reasonable’ ambulance service would. The situation for an injured patient is shown in the diagram below.
- If the plaintiff can prove the paramedic was negligent, the ambulance service will be vicariously liable. The ambulance service is insured and the insurance corporation will pay the damages.
- If the plaintiff can prove the ambulance service was negligent, the ambulance service is insured and the insurance corporation will pay the damages.
But, if I’m correct and s 67I says that an ambulance officer will not be liable for actions taken in good faith, even if they are negligent, then the argument in (1) is lost. That is if the paramedic’s actions were ‘in good faith’ he or she is not liable and so, the argument would go, there could be no vicarious liability.
Law Reform (Vicarious Liability) Act 1983 (NSW) s 10(2)
Now we have to consider the Law Reform (Vicarious Liability) Act 1983 (NSW) s 10(2). That section says:
For the purposes of determining whether or not a person is vicariously liable in respect of a tort committed by another person, any statutory exemption conferred on that other person is to be disregarded.
In other words when deciding whether the ambulance service is vicariously liable for its paramedic or honorary officer, the Health Services Act 1997 (NSW) s 67I is to be ignored. The result is that if the plaintiff decides to sue the paramedic and tries to make the paramedic personally liable, they must prove a lack of good faith. But if they are suing the ambulance service on the basis that they ambulance service is vicariously liable; the plaintiff only need to prove ordinary negligence – that is a failure to provide reasonable care even if that care was provided ‘in good faith’.
As noted above though, no-one wants to sue the paramedic personally, they couldn’t afford to pay the damages. Further, if a plaintiff could prove a lack of ‘good faith’ then the service may not be vicariously liable as one is not vicariously liable for deliberate misconduct. It’s in the plaintiff’s best interest to accept that the paramedic acted in good faith and sheet liability home to the State.
Whether s 67I was there or not, the employer would be vicariously liable for its paramedics, and people wouldn’t seek damages from the paramedic, they would seek damages from the state. Section 67I therefore has little practical implication but it does, one assumes, reassure paramedics that they are not personally liable for their good faith, but negligent, decisions. Their employer and ultimately the state is to wear any liability.
Civil Liability Act 2002 (NSW) ss 3C and 61
The Civil Liability Act 2002 (NSW) says that a volunteer is not personally liable for their good faith conduct whilst volunteering (Civil Liability Act 2002 (NSW) s 61). This would appear to apply to honorary officers. The NSW Act has a unique provision. Section 3C says: ‘Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort.’ That means if the patient is injured by an honorary officer not only is the officer not liable for their good faith, but negligent actions, neither is the ambulance service. This is the opposite of the position for paid staff. But again, it is not likely to make much of a difference as the injured patient/plaintiff would simply sue the ambulance service for failing to provide the level of care expected from a reasonable ambulance service.
As noted s 3C is unique to NSW. The Civil Liability Act in most other jurisdictions says that where the volunteer is protected, the organisation for which they volunteer remains liable. That is in every state and territory, other than NSW, the volunteer protection legislation ensures that a person injured by a volunteer can recover, just not from the volunteer. That is in every jurisdiction other than NSW a volunteer ambulance officer would be in the same position as a paid one.
For employed paramedics, the Civil Liability Act 2002 (NSW) has little direct application so without reference to a specific provision I’m not sure how that Act is relevant to questions posed to my correspondent.