This interesting question relates to a duty to provide first aid or at least to contact the emergency services. A first aid instructor was asked:
… in a first aid course a question relating to legal responsibility to render first aid. As per the ARC guidelines and previous posts of yours, I teach that you have a responsibility ‘in the workplace (WHS laws) and anyone under the age of 18 in your care’. An electrician then asked where he stood doing work in a private residence. It is his workplace, but he is also in a private residence. I then considered if I was teaching a first aid course at a client’s workplace – am I the visitor or is it temporarily my workplace?
My understanding is that rendering assistance can simply be phoning for help. This is the reply I gave.
It’s true, and said often enough, that there is no general duty to rescue (Stuart v Kirkland-Veenstra  HCA 15; the Northern Territory is the exception to that rule, see Criminal Code (NT) s 155 and NT police officer gaoled for failing to render assistance (October 31, 2016)). More accurately thought the rule is that there is no duty to rescue a stranger. A person for whom we have a responsibility (assumed or imposed) is not a stranger.
Under Work Health and Safety laws, a workplace must have first aid and emergency arrangements in place (see, for example, Work Health and Safety Regulation 2017 (NSW) rr 42 and 43). An electrician’s work place is wherever he or she is required to work so the employer (or the self-employed worker) should have plans in place for first aid to be delivered to the worker if required – in that case it’s probably not much more than a first aid kit in the car and requiring or supplying a mobile phone.
With respect to others at the workplace, in this case the homeowner, the electrician (and his or her employer if there is on) has an obligation (Work Health and Safety Act 2011 (NSW) s 19) to
… ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
The critical issue here is that the other person, is not put at risk from the electrician’s work, not that the house is risk free.
So the first issue we need to consider in order to answer the question asked, is why does the homeowner need assistance? If they’ve just been electrocuted because they touched an unsafe appliance and the electrician either made it unsafe, knew it was unsafe but hadn’t taken steps to warn the resident or isolate it, or even if they had been called into repair it and hadn’t arranged matters so the resident was aware that he or she shouldn’t be there or at least shouldn’t touch anything, then the person has been put at risk from the electrician’s conduct. It doesn’t take much imagination that an electrician in those circumstances can’t just keep going with the work and when finished leave the home, making sure to lock the door, and leaving the customer dead on the floor. In those circumstances there has to be a duty to render assistance even if that assistance is to do no more than call triple zero.
If the homeowner has just collapsed for reasons unrelated to the task that brought the tradesmen there, that is a different issue and I can’t see the work health and safety laws are relevant. But that doesn’t mean there is no duty. These people aren’t strangers, the tradie has been invited into the customer’s home and they have some relationship.
I’ll segue here to a case that may not seem relevant. In R v Taktak (1988) 14 NSWLR 226 the accused was convicted of negligent manslaughter. Taktak was ‘described in evidence as being a drug addict and the deceased, who was a prostitute and was aged fifteen, was a user of heroin.’ The gist of the Crown’s case was that Taktak arranged for the deceased and another prostitute to attend a party. At some point he was rung and asked to collect the deceased. He went to the address and found her ‘sitting on the floor, with her back against the wall… she couldn’t speak she was only moaning.’ Taktak then took her to an apartment. The following evidence was given during the trial:
Q24. What happened then? A. I threw a jacket over her and a blanket, she smelt a lot, of vomit.
Q25. When you put her on the bed how was she lying? A. She was lying on her back. I turned her on her side and she started to be sick on the towel.
Q26. What did you do then? A. I spent a few hours trying to wake her up. But nothing happened she wouldn’t wake up.
Q27. How did you try to wake her up? A. I slapped her face a couple of times, washed her face with cold water, pumped her chest, gave her mouth to mouth but she wouldn’t wake up.
Q28. What did you think was wrong with her? A. Too much tablets, barbiturates.
Q29. Did you seek any medical attention for her after she wouldn’t wake up? A. Not till after Zouhier came to the shop, after ten o’clock.
Q30. Did she take any drugs or anything else at any time while you were with her? A. No, she was unconscious…
Q33. Can you tell me why you didn’t seek any medical attention for her? A. Because I thought that when she got over the dose she had she would be alright.
Q34. What time did the owner of the shop Mr Rabih contact you this morning? A. About half past nine, he rang the shop, I spoke to him but I didn’t tell him about the girl.
Q35. What happened then? A. Rabih came to the shop just after ten and when he saw the girl he tried to wake her up but he couldn’t so he went straight to the doctors.
Q36. What happened next? A. Rabih came back to the shop, but when the doctor didn’t come soon I went back to the doctor, twice, and the second time he came back with me.
Q37. What happened when the doctor arrived? A. The doctor checked the girl and said she has gone and he gave me the number of the ambulance and I rang them and told them to come straight away.
In his statement to the jury, Taktak:
… said that he never thought that the girl’s life was in danger at any time; that he had no medical training; that he was a heroin addict… [H]e took her inside, put her on the bed, covered her, “had my hit of heroin”, and shortly thereafter fell asleep. He claimed that when he got up he felt her pulse, which was absent, and there was no noise to be heard when he placed his ear upon her chest. He turned her on her back and she vomited, and he tried to give her mouth to mouth resuscitation. He himself became sick and confused. He said: She must have been dead when I gave her mouth to mouth, or she must have died in the taxi, I wouldn’t have a clue, and just before ten o’clock Rabih came to the shop and thereafter they decided to call the doctor. …
The critical issue for our purposes was that to be guilty of manslaughter by negligence Taktak had to be under a duty to do something, and his failure had to be so far below the standard expected of a reasonable person as to warrant criminal punishment. Did Taktak have a duty to the late Miss Kirby? To answer that the court had to consider ‘the circumstances in which a person is under a duty which obliges him to care for another’.
Yeldham J quoted Stephen’s History of the Criminal Law of England (1883), vol III at 10-11, which said:
“… A number of people who stand round a shallow pond in which a child is drowning, and let it drown without taking the trouble to ascertain the depth of the pond, are no doubt, shameful cowards, but they can hardly be said to have killed the child.
…By the law of this country killing by omission is in no case criminal, unless the thing omitted is one which it is a legal duty to do. Hence, in order to ascertain what kinds of killing by omission are criminal, it is necessary, in the first place, to ascertain the duties which tend to the preservation of life. They are as follows: — A duty in certain cases to provide the necessaries of life; a duty to do dangerous acts in a careful manner, and to employ reasonable knowledge, skill, care, and caution therein; a duty to take proper precautions in dealing with dangerous things; and a duty to do any act undertaken to be done, by contract or otherwise, the omission of which would be dangerous to life. Illustrations of these duties are the duty of parents or guardians, and in some cases the duty of masters, to provide food, warmth, clothing, etc, for children; the duty of a surgeon to employ reasonable skill and care in performing an operation; the duty of the driver of a carriage to drive carefully; the duty of a person employed in a mine to keep the doors regulating the ventilation open or shut at proper times. To cause death by the omission of any such duty is homicide…
In Archbold, Criminal Pleading Evidence and Practice, 42nd ed (1985), under the heading Gross negligence as recklessness, it is said (par 20-59 at 1637):
“If a grown-up person chooses to undertake the charge of a human creature helpless either from infancy, simplicity, lunacy or other infirmity, he is bound to execute that charge without gross neglect; and if he lets the person whose charge he has undertaken die by gross neglect, he is guilty of manslaughter. The neglect has been described as being such as to satisfy a jury that the defendant was reckless whether such person died or not … If a person has the custody of another who is helpless and leaves that other with insufficient food or medical attendance, and so causes his death, he is criminally responsible ….”
In Gillies, Criminal Law (1985) at 32 it is said that at common law a person not in general incur criminal liability for a failure to intervene and prevent, or attempt to prevent, the occurrence of harm. In this context the person who sees a building on fire and fails to call the fire brigade, or a person who sees a strange child drowning in a shallow pond and fails to rescue the child, does not incur criminal liability. It is stated as a general proposition that at common law there is no liability for inactivity, and a number of cases are cited in a footnote in support of this general proposition. Exceptions to the rule are then dealt with, the first concerning situations where a person is under a common law or statutory duty to act, and the second concerning offences which are, expressly, ones of omission. In the same work (at 510- 511) the author says:
… The spectrum of legally recognised duties grounding liability for an omission is an open-ended one, given that such duties can arise from statute as well as the common law. Standard common law duties grounding liability for manslaughter by omission include that which is vested in the parent of a young and dependent child, or one in loco parentis, and that which is vested in the person who voluntarily assumes responsibility for the care of an adult who is physically or mentally incapable of caring for himself or herself….
See also Howard on Criminal Law, 4th ed (1982) at 105-106; and Russell on Crime, 11th ed (1958) vol 1 at 454 ff. In Russell, after dealing with the duty of a parent to maintain children and to provide such medical aid as may be necessary, the author, under the heading Duty of Persons who have Undertaken Responsibility, deals with the responsibility of a master for apprentices and servants, responsibilities arising from employment, and “Responsibility for the helpless or infirm”. Under the latter heading it is said:
“A person is criminally responsible if, having undertaken to provide necessaries for another who is so aged and infirm that he is incapable of doing so for himself, he neglects such undertaking, with the result that death ensues; or if having confined another he neglects to supply him with necessaries, whereby the other dies.”
What distinguishes Taktak and all the cases cited above, from the question asked, is that the electrician in the home hasn’t voluntarily taken on the care of a person – he or she hasn’t ‘undertaken to provide necessaries for another’, they’ve undertaken to do electrical work and the person has collapsed. But like Taktak’s case the person is in a place where if the electrician doesn’t get them help, no-one is going to. If Taktak had left Miss Kirby on the street others may have been able to assist her but by removing her he ensured that without his assistance there would be no assistance. Again the electrician the subject of our discussion hasn’t moved the person to a place where others can’t rescue him or her, but the electrician does know that if they don’t call for help, no-one is going to because no-one else knows that help is required.
Yeldham J went onto consider
… R v Shepherd (1862) Le & Ca 147169 ER 1340. There the prisoner had failed to procure the aid of a midwife for her daughter, who was eighteen years of age, during childbirth. A difficulty occurred and death ensued. The prisoner’s conviction for manslaughter was quashed on the ground that there was no legal duty binding her to procure the aid of a midwife. Erle CJ said (at 155-156; 1343):
“… The cases where the person, whose death is caused, has been brought into circumstances where he cannot help himself, as by imprisonment, by the act of the party charged are clearly distinguishable. There the persons imprisoned are helpless, and their custodians, by the fact of their being so, have charged themselves with the support of their prisoners. The case of parent and child of tender years is also distinguishable, as are the other cases where such a duty is imposed by law or contract, as in the case of master and apprentice. Here the girl was beyond the age of childhood, and was entirely emancipated. Then, being in the prisoner’s house, she is brought to bed, and the mother omits to procure her a midwife. I cannot find any authority for saying that that was such a breach of duty as renders her, in the event which ensued, liable to the consequences of manslaughter.”
This is akin to the story we’re discussing. The electrician hasn’t imprisoned nor have a duty imposed by law or contract (unless the injury was casued by the electrician’s work, discussed above).
In R v Joukhadar (Court of Criminal Appeal, 13 June 1975, unreported, cited in Taktak), McAlvay CJ said:
“The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter … This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death … Although the literature upon the subject is quite meager and the cases few, nevertheless the authorities are in harmony as to the relationship which must exist between the parties to create the duty, the omission of which establishes legal responsibility. One authority has briefly and correctly stated the rule, which the prosecution claims should be applied to the case at bar, as follows: ‘If a person who sustains to another the legal relation of protector, as husband to wife, parent to child, master to seaman etc, knowing such person to be in peril, wilfully and negligently fails to make such reasonable and proper efforts to rescue him as he might have done, without jeopardizing his own life, or the lives of others, he is guilty of manslaughter at least, if by reason of his omission of duty the respondent person dies. So one who from domestic relationship, public duty, voluntary choice or otherwise has the custody and care of a human being, helpless either from imprisonment, infancy, sickness, age, imbecility, or other incapacity of mind or body is bound to execute the charge with proper diligence, and will be held guilty of manslaughter if by culpable negligence he lets the helpless creature die’.”
Of course the electrician is not in ‘the legal relation of protector’ other than he or she, alone, knows of the person’s need.
To return to Taktak’s case, Yeldham J concluded:
The question whether, by taking her to Rabih’s premises and dealing with her as he did, rather than leaving her to lie in Liverpool Street, he thereby assumed a duty to care for her, is one which must be decided by the application of principles already summarised… Although, if not taken by the appellant to Rabih’s house, the deceased may well have remained where she lay in the foyer of a building in Liverpool Street and later died. Equally she may have been seen by another or others who were prepared to and did obtain speedy medical assistance for her. This chance was denied to her by the appellant when he took her away. This is a factor which, in some of the cases (eg, Jones v United States of America) is regarded as significant.
In the result I have come to the conclusion, although not without hesitation, that in the circumstances … there was evidence that the appellant did assume a duty to care for the deceased girl, who at the time was helpless, and by so doing removed her from a situation in which others might have rendered or obtained aid for her.
Carruther’s J didn’t share Yeldham J’s concerns. He said:
To my mind the evidence led by the Crown was capable of satisfying the jury beyond reasonable doubt that the appellant owed a duty of care in law to Miss Kirby. That duty flowed from his taking her unconscious body into his exclusive custody and control and thereby removing her from the potentiality of appropriate aid from others…The legal principles are, I think, conveniently stated in 40 Am Jur 2d, par 90 at 383:
“Generally speaking, the affirmative legal duty which is the vital element of a homicide charge based upon failure to supply medical or surgical attention may exist, first, where a statute imposes a duty to care for another; second, where one stands in a certain status or relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and has so secluded the helpless person as to prevent others from rendering aid.”
To return to the problem at hand, the electrician is not a mere stranger. There is a relationship even if it’s tradesmen/client and that does not impose any duty with respect to medical care it does mean that there is some pre-existing relationship, they are not just strangers.
Loveday J said ‘The conduct of the appellant on the evening before and during the period immediately preceding Miss Kirby’s death was so morally reprehensible that he evokes no sympathy. However, in my view the evidence fell short of establishing negligence of the degree required to justify a conviction for manslaughter. I agree with the orders proposed by Yeldham J and with his reasons therefor.’
At the end of the case, Taktak was acquitted. Although the three judges agreed that he owed a legal duty to Miss Kirby, his conduct, incompetent as it would sound to any reader of this blog, was not sufficiently gross as to warrant conviction for negligent manslaughter. We need not consider that issue of breach further.
As noted the electrician is not like Taktak in that he or she has not taken the person in need of care and secluded them. Nor are they like the cases involving parents and partners who have a duty to care for others. But they are not a stranger. One could apply the Tabloid Press test – how would anyone react to a tradesperson who saw their customer collapse and who simply did nothing? Who continued their business and then left?
The cases, above, don’t directly address that but I don’t think it would be hard stretch to find that there was a duty of care. There has to be a duty of care where it is the tradies work that caused the injury – eg where the customer is electrocuted; but one would also argue that presence of the tradie in the person’s home, under a contractual arrangement, also gave rise to a duty. IF we think of it the other way round, if a homeowner invites a tradesperson into their house and the tradie is injured or falls ill, the homeowner as the occupier of the property, and given the relationship would certainly have a duty to the tradesperson to do something. They couldn’t just let him or her die on the floor. If that is the case (and I have no doubt it would be) then why would the duty not be reciprocal?
From that discussion I would conclude that in the example given, ‘An electrician … doing work in a private residence’ would owe a duty to provide some assistance to the customer if they collapsed or were injured. The duty would certainly arise if the cause of the injury was the very work that the tradesperson was doing but I would think it could be extended to a general duty. The duty may indeed be nothing more than a duty to ring triple zero or a family member to assist, but he or she could not simply ignore their customer’s needs. Whether they would or could be civilly or criminally liable would depend on all the circumstances and the eventual outcome, but I think there would be a duty to do something.
The other question
The other question was if I’m ‘teaching a first aid course at a client’s workplace – am I the visitor or is it temporarily my workplace?’ The answer is yes – so as it is your workplace you have to ensure that your work and work practices don’t expose others to unreasonable risks to their health and safety; and the client has to ensure that they don’t expose you to unreasonable risks to health and safety.