Today’s question came as a comment on an earlier post – Fear of legal risk for installing AEDs is misplaced (September 17, 2019). The comment is:
I’m watching with interest the proposed legislation in South Australia (yet to be enacted, and may not be) requiring some prescribed buildings (existing and new) and some new or improved buildings ($100,000 + changes) to have an AED for every 1200sqm of floor space. My question relates to those organisations who don’t fall under the legislation directly because they have existing facilities but would if they were a new building. They are no doubt still required to complete their risk assessment and decide whether they need one or not.
1. Would the fact that there was legislation imposing AEDs on their peers in newer buildings come into play when assessing whether they reasonably need them or not?
2. If they did deem themselves to require an AED does the number and placement instructions (signage, number etc) imposed by legislation become a quasi best practice or minimum standard?
3. The legislation would suggest the government’s position is, if you can afford to build a new building you can afford (and should) install AEDs, does then the only viable reason for these buildings not installing one become, ‘we can’t afford it’ ?
And finally,
4. Even if the answer to all these questions is No, I’m wondering if the legislative move could place businesses at greater risk of being sued for not having an AED as the public starts to expect buildings to have them?
The ‘proposed legislation’ is, I infer, the Automated External Defibrillators (Public Access) Bill 2019. It is a private members Bill (ie not from the Government) introduced by SA-BEST MLC, Frank Pangallo. You can follow the link, above, to read the Bill or read explanatory commentary from the websites below:
- SA-BEST, Defibrillators to be mandatory in all public buildings under Australian-first laws introduced by SA-BEST (16 October 2019);
- Local Government Association of South Australia, Automated External Defibrillator (Public Access) Bill in Parliament – Circular 43.6 (18 October 2019).
The Bill, if passed, would require AED’s to be installed in any ‘designated building or facility’ that is:
(a) a public building or facility;
(b) a prescribed sporting facility;
(c) a school, tertiary institution or facility that provides skills training;
(d) a correctional institution (within the meaning of the Correctional Services Act 1982) or custodial police station (within the meaning of section 78 of the Summary Offences Act 1953);
(e) a retirement village;
(f) a facility that provides residential care within the meaning of the Aged Care Act 1997 of the Commonwealth (whether constructed before or after the relevant day);
(g) a residential park occupied (or that allows for occupation) by more than 12 residents (within the meaning of the Residential Parks Act 2007);
(h) a casino or other venue where gambling is authorised;
(i) a theatre or other venue where artistic or cultural performances are provided;
(j) without limiting a preceding paragraph or the definition of public building or facility—
(i) a class 2 building under the Building Code with more than 10 sole occupancy units (within the meaning of the Building Code); or
(ii) a class 5, 6, 7 or 8 building under the Building Code, other than a farm shed or farm building (within the meaning of the Building Code); or
(iii) a class 9 building under the Building Code;
(k) a building or facility, or class of building or facility, prescribed by the regulations.
Given high numbers and various vulnerabilities the list of what is a ‘designated building or facility’ (ignoring (because I don’t know) what is a class 2, 5, 6, 7, 8 or 9 building) seems like appropriate places to put AEDs. Each ‘designated building or facility’ must have at least one AED and one for every 1200m2 of floor area.
AEDs must also be installed in a ‘prescribed building’ that is a building ‘on land used for commercial purposes’ that is built, has major work done or which has a change of use to become a commercial building after the ‘relevant day’, and which has a floor space larger than 600m2. (The relevant day is a date that will be prescribed if the Bill becomes law). Again there must be one AED for every 1200m2 of floor area.
It will also be compulsory to install AEDs into all emergency service organisation vehicles (so all vehicles operated by the SA Metropolitan Fire Service, SA Country Fire Service, SA State Emergency Service and SA Police) and other vehicles prescribed by the regulations.
There will need to be procedures in place to ensure that AEDs are maintained and tested once a year. Signs will be required ‘(a) near to the Automated External Defibrillator; and (b) outside, and near to an entrance of, the building or facility’ and on any vehicle required to carry an AED.
The Minister will be required to maintain a register of AEDs containing at least information on the AEDs location and ‘the times during which it is accessible by the public’. The information must be available on a web-based platform and also on ‘a software application compatible with smartphones’. The Minister will also be required to develop an awareness strategy on the location and use of AEDs (including ‘the fact that a person does not need to be trained to use an Automated External Defibrillator). He or she must also:
… establish a scheme for the provision of training in the use of Automated External Defibrillators to the following persons:
(a) a person who must complete first aid training in accordance with the Education and Care Services National Law (South Australia);
(b) a person who must complete first aid training in accordance with the Work Health and Safety Act 2012…
(c) any other person, or class of persons, prescribed by the regulations.
The Bill does not require anyone to actually use the devices should the need arise. Even though the Bill is called the Automated External Defibrillators (Public Access) Bill 2019 there is nothing in the proposed Bill to say that the AEDs, once installed, actually have to be made available to the public. What are ‘commercial purposes’ are not defined, so someone might have a factory or warehouse, install an AED for the purpose of compliance with the Act but have it in the building that is not accessible by the public. It is still useful to have it as it could be used should a worker suffer a sudden cardiac arrest, but there is no obligation to provide ‘public access’.
Private member’s Bills rarely succeed, and it is unlikely that the government would want to accept a Bill that would impose significant costs on the government to develop the register, public awareness campaign and training requirements as well as installing AEDs in all emergency service owned vehicles. My guess is that this Bill will never become law, but assuming that it does I can turn to the questions asked:
1. Would the fact that there was legislation imposing AEDs on their peers in newer buildings come into play when assessing whether they reasonably need them or not?
No, the Bill contains no element of ‘risk assessment’ it is merely ‘tick box’ compliance. If you build a commercial building greater than 600m2 you must have an AED to comply with the law, but it does not mean that on any risk assessment you would conclude you needed one. If a person operated a vehicle or owned a building that was not caught by the Act (if it became law) then the Act would be irrelevant to any consideration of what they needed. It may even decrease the need for an AED if you know the building next door has one because they are required to comply with the Act.
2. If they did deem themselves to require an AED does the number and placement instructions (signage, number etc) imposed by legislation become a quasi best practice or minimum standard?
No, for the reasons given above. Further, the requirements are vague – a sign near the AED and on the building, that compliance with the legislation may in fact not be best practice at all.
3. The legislation would suggest the government’s position is, if you can afford to build a new building you can afford (and should) install AEDs, does then the only viable reason for these buildings not installing one become, ‘we can’t afford it’ ?
This is not a government Bill so this is not the government’s position. If it did pass into law one might say it is the Parliament’s position (or the government’s position if they endorsed it too). But again, there is no risk assessment in the Bill. A viable reason is still ‘we don’t think we need one’; see below.
4. Even if the answer to all these questions is No, I’m wondering if the legislative move could place businesses at greater risk of being sued for not having an AED as the public starts to expect buildings to have them?
No for all the reasons given before and then some. First to be sued the plaintiff would have to show that the outcome in their case would have been different if an AED is installed. Merely installing an AED does not mean anyone is actually going to use it, or if they do use it that it will actually make a difference in a given case. Not everyone who has a sudden cardiac arrest and receives prompt CPR, prompt AED and prompt transfer to paramedics and definitive care survives. The plaintiff in any case would have to prove that they would have been one of the patient’s that would have.
Second the presence of AEDs in designated and prescribed buildings may well give rise to an expectation that they are in those buildings but equally no expectation that they are in other buildings. If I know they have to be in that large commercial building I may have less expectation that they will be in the smaller building and the signs will even tell me which building, they are in. It creates the position that AEDs are not expected in every building.
People can cite data on how effective AEDs are and I have no doubt they are; I would be interested in seeing data in how many are used. Many are sold and installed but how many of them ever see ‘action’? Someone suffers a sudden cardiac arrest every day but nearly all the AEDs put out in public won’t be used today, tomorrow or probably this year, if ever. It’s a legitimate cost/benefit question to ask whether it’s worth investing in one and particularly if you know that the commercial building next door must have one or more and they are listed on a public access register.
Conclusion
The Bill, if it becomes law (and I doubt that it will) would require AEDs in a ‘designated building or facility’, a new commercial building with a floorspace greater than 600m2 and in emergency service and possibly some other vehicles.
It would not impact upon the obligation, or liability, of other building owners to take steps to install AEDs or to put signs up if they do. In fact it may reduce the need for those building owners to install AEDs as they can make use of those in buildings that would be required to comply with the Bill (should it become law).
Australian Emergency Law 
Michael,
I’ve seen you question before the cost/benefit analysis of AEDs before and I’m not sure that it’s a helpful perspective, because it encourages people to try and (in vain) assess the likelihood that their specific AED would be used when the macro picture is what is important.
Your chances of surviving a public cardiac arrest in Australia are abysmal by world standards. I agree that we need to be efficient with our spending but there is a demonstrated survival benefit when an AED is available basically everywhere. I’m yet to see anyone analyse the number of house or office fires as a percentage and make a case for not purchasing fire insurance or extinguishers.
My view is that you don’t buy an AED because you think it’s likely that you will need it, you buy one because if you needed it and didn’t have one the consequences are devastating. And the benefits both economic and social when one is used are enormous. The economic cost of loss of a life prematurely and the requirement for more advanced care should someone just survive are also significant.
Indeed I’m yet to have someone complain at buying one and not having used it and further it’s not as though private enterprises are considering spending the funds on an alternate life-saving investment.
With regards to relying on an AED in another building people need to understand the actual ramifications of that and picture their employee having to run downstairs on in an elevator, negotiate getting the AED from the security guard and return while their co-worker is lifeless on the floor. And that exact scenario happened to one of my customers where because of a small number of employees on site at the time the patient was left unattended for 5 minutes. For someone in Cardiac Arrest that is a 50% drop in survival rate.
To be clear I’m not suggesting that your view is one way, you do an excellent job at dispelling spurious arguments for not installing AEDs but because you no doubt do have an impact on whether significant and smaller organisations invest in AEDs I wanted to offer a different perspective to your question.
And while I disagree with the premise I have researched the question before and while there is limited data available I discovered the following. Note that AEDs typically have a warranty life of between 5 and 8 years and cost between $2,000 and $3,000.
Dublin Airport – 50 AEDs saved 25 lives over 15 years – Irish Sun 22/1/18, 0.026 lives saved per device pa
Denver Metro Program – 2,000 AEDs saved 52 lives in 2016 – Sourced Directly
0.033 lives saved per device pa
MCG PAD Program – 12 AEDs saved 40 lives b/w ‘89 & ‘04 – The Age 28/12/04
0.22 lives saved per device pa
Thanks again for your expertise and commitment to the industry
Ben
Ben Cannon
Corporate AED Solutions
Thanks Ben for that really useful analysis. It’s a bit like a herd immunity, having AEDs everyone helps even if it may not help me. It is also the ‘tragedy of the commons’ – having public access AEDs helps everyone but from a simple cost/benefit analysis its better is someone else buys it and i can take advantage of it than buy it myself.
I don’t dispute that AEDs are great tools and there should be more of them, but as a lawyer asking whether there could be liability for not installing one I do think the cost/benefit argument is relevant because as a potential buyer I am not duty bound to buy things to help my neighbours, only to help those that I have such a close relationship with that it gives rise to a ‘duty of care’ so I can decide whether it’s worth the cost to me. I would hope that many would think that the community benefit is in fact worth the cost, but I don’t think anyone is legally required to come to that conclusion.
The points raised above may well help make the argument that AEDs should be compulsory because if it’s in everyone’s collective interest to have them but in no-ones individual interest to invest in them then there is a market failure (ie the market pressures will fail to produce the result we want) so we need to rely on good will or make installation compulsory.
Whilst I don’t think that analysis changes my opinion on whether there is likely to be liability for installing, or not installing a public access AED it may cause me to rethink my idea on whether they should be compulsory at least in high traffic public buildings.
Could the relevant State and Territory WHS legislation make it compulsory to install AEDs, particularly Sections 42 and 43 of the Model WHS Regulations? The above mentioned would all fall under the category of a PCBU and therefore they would have a duty to provide first aid to workers, clients, contractors, volunteers and visitors. They would also have to have emergency plans, trained staff and equipment in place to respond to emergencies in workplaces under their control.
While it doesn’t spell it out that an AED is required it could be argued that sudden cardiac arrest is a foreseeable risk especially in public places or where there are mass gatherings of people, education facilities etc. and entertainment venues.
Rob, that could be an argument in the right circumstances. A PCBU must provide relevant first aid equipment and access to first aid services and an emergency plan. First aid needs should be assessed in line with the First Aid Code of Conduct that has been adopted nation wide. In some circumstances that may lead to a conclusion an AED is required. What is required is a risk assessment though and if the assessment is that one is not required provided the assessment is reasonable it’s not ‘wrong’ even if someone else would have come to a different conclusion.
We can imagine all sorts of scenarios. If you are planning a music festival you would want event first aid providers to be there with oxygen, defibrillators, relevant drugs etc. Others will have much lower risk.
Just because a sudden cardiac arrest is foreseeable that doesn’t on its own determine what is the reasonable (as opposed to optimal) response to that risk. Imagine my local shopping plaza, they attract thousands of people to walk through their doors – that is how they and the tenants make money. Given the range of people coming into the building it would seem very sensible to have an AED on the premises. They probably do have one, but the plaza has hardly any staff. There’s a concierge desk so a couple of people there and perhaps some roving people. Now the risk of a cardiac arrest in the plaza may be high, but what’s the risk in any one store? Very low, and they probably have two casual teenagers in the shop. Do they need to buy an AED? It’s probably a good idea but the question is not ‘should they’ or ‘would it be a good idea’ but ‘must they?’ I cannot see they ‘must’. As an earlier comment said, the presence of multiple AEDs increases the risk of survival and is a great community benefit but that doesn’t impose an obligation upon everyone to provide that benefit. And the tenant of the plaza may say the best emergency plan is to ring the concierge and triple zero and that may indeed be a ‘reasonable plan’.
The point I keep trying to make is that a risk assessment in accordance with the First Aid Code of Practice may, for some businesses, say an AED is an essential piece of kit and they should get it to comply with the Work Health and Safety laws (but I find it hard to believe an inspector would ever prosecute someone for not having one; but they could). But for most business I cannot see that having an AED, in the absence of legislation such as the SA Bill, is required to have one. I don’t for a moment disagree that buying AEDs is a great thing to do, it provides a potential life saving benefit and reasonably low cost and the more there are the better. But I don’t think it’s a legal obligation and I cannot see anyone being sued for not having one should a person die from sudden cardiac arrest.
Michael, another interesting question is whether it is practicable for any employer to adequately conduct a self assessment with regard to something as complex as the risk of SCA. Whilst there is an argument that having a large number of people, conducting an activity deemed high risk or having people with a known heart condition places you at higher risk there is a significant portion of SCA’s that are quite simply random. The guidelines suggest businesses who host members of the public consider them (presumably because there is no way of knowing their risk profile?) but in reality there is no practical way of knowing their employees risk profile either (many wouldn’t know they had clogged arteries or a congenital heart defect).
I’m also wondering at what point the cost becomes ‘grossly disproportionate to the risk’ – $2,000 device, 8 years, 30 employees…a little over $8 per employee per annum. You couldn’t buy them a beer in Sydney for that.
There’s the question of whether or not anyone can do a risk assessment of these things but experience probably tells most people that the risk is small. When was the last time someone suffered a sudden cardiac arrest at your work place? It really depends on the scale, if you ask ‘what’s the risk of someone in Australia suffering a sudden cardiac arrest today’ the answer is ‘1’ ie it’s a certainty. What’s the risk of it happening in my workplace, something much less (but not zero). That is an argument to have AEDs all over the place because we don’t know where that cardiac arrest will occur. But I remind readers that this is a law blog – so the question is not whether having AEDs all over the place is a good idea, it’s whether I am obliged to buy one.
Certainly under WHS law I have to have first aid facilities and equipment for employees and those affected by my work, but that does not include strangers and even visitors who come onto my premises. I have a duty to ensure that the premises are safe and that my work does not expose them to risk, but having a visitor/customer in my showroom does not increase their risk of a heart attack. And if they have a heart attack, it will be the heart attack that kills them, not the absence of AED.
People draw appropriate analogies with fire extinguishers. If a fire breaks out in my work place and someone is killed I may be liable as the condition of my building became hazardous, I may be liable if my failure to maintain the building contributed to the fire, but I cannot see anyone suing and arguing that the cause of death was a failure to have a fire extinguisher.
That does not mean that the installation of AEDs could not be made compulsory (as the SA Bill is trying to do) nor that they should not be made compulsory. My argument is that in the absence of legislation such as the SA Bill the common law does not, or would not, impose an obligation upon most businesses to install an AED. There may be an obligation in some circumstances where a risk assessment that considers both the activities being undertaken and the risk profile of people involved says ‘we need one’ but that is not a general proposition eg that ‘every PCBU must buy an AED’. I cannot see any business being sued for not having one but equally I don’t see any legal risk in having one.
To reiterate this is a law blog and my position is that I don’t see the common law imposes an obligation on a business to have an AED so in that sense they are not compulsory. For some business a risk assessment would say ‘you must have one’. For others it’s a great idea and a great community service, but not obligatory. I don’t see that the passage of a bill, like the SA bill, would change that position for business who were not caught by the terms of the Bill.
A good initiative I submitted a formal request for change along these lines to the Australian Building Codes Board at the time of their last review. It seems like someone actually read the document in SA.