Today’s correspondent is

… a volunteer for St John Ambulance Victoria, and as part of this role I have been updating some training information. This has led me to you.

Currently our training packages suggest that as volunteers working in event health services, we are covered legally under the good Samaritan Act, I don’t agree, nor think this is particularly correct, as although we the volunteer are not receiving payment we receive other benefit, such as service awards. The organisation of St John receives a payment for service from the event management also.

St John Ambulance has insurance that covers its staff and volunteers, but what act would we fall under?

The ‘Good Samaritan’ provision in Victoria is the Wrongs Act 1958 (Vic) s 31B. It says:

(1) A good samaritan is an individual who provides assistance, advice or care to another person in relation to an emergency or accident in circumstances in which—

(a) he or she expects no money or other financial reward for providing the assistance, advice or care; and

(b) as a result of the emergency or accident the person to whom, or in relation to whom, the assistance, advice or care is provided is at risk of death or injury, is injured, is apparently at risk of death or injury, or is apparently injured.

(2) A good samaritan is not liable in any civil proceeding for anything done, or not done, by him or her in good faith—

(a) in providing assistance, advice or care at the scene of the emergency or accident; or

(b) in providing advice by telephone or by another means of communication to a person at the scene of the emergency or accident.

Section 31B refers to ‘no money or other financial reward’ This is different to say the Civil Liability Act 2002 (NSW) s 56 that requires a good Samaritan to act ‘without expectation of payment or other reward’ (emphasis added).  I agree with my correspondent that a member of St John (NSW) (or the NSW SES or RFS) may not be getting paid but they do get ‘other’ rewards for their service and should not be considered good Samaritans (see Who to treat? A question for St John first aiders (June 30, 2013) and NSW SES Good Samaritans (August 25, 2014)).  The position may be different in Victoria given the Act only refers to ‘money or other financial reward’.

In an published article (Michael Eburn, ‘Protecting volunteers?’ (2003) 18(4) Australian Journal of Emergency Management 7-11 at pp. 8-9) I said:

United States cases on Good Samaritan legislation have held that the legislation will not apply where there is a pre-existing duty to treat a patient. The argument goes that if the purpose of the Act is to encourage people to act when they might not otherwise act, then it need not and should not apply to persons who are under a legal obligation to act in those circumstances. A person who acts when under a legal duty to act is not a ‘Good Samaritan’ intended to be protected by this sort of legislation (Velazquez v Jiminez, 798 A.2d 51, 64 (NJ, 2000); …

A similar argument could be made with respect to volunteer members of rescue and first aid organisations. These organisations are established for the very purpose of providing emergency assistance and care and so, it could be argued, the members are not ‘Good Samaritans’ in the sense of a person who:

… comes, by chance, upon a victim who requires immediate emergency medical care, at a location compromised by lack of adequate facilities, equipment, expertise, sanitation and staff. (Velazquez v Jiminez, 798 A.2d 51, 65 (NJ, 2000)).

Notwithstanding this possible argument, the Premier of New South Wales said that the Good Samaritan provisions he was introducing ‘… will mean no liability for voluntary rescue organisations, such as surf life saving clubs, if a person is injured in the course of or in connection with a rescue’. By this speech, the Premier must have intended that members of such organization are to be considered ‘Good Samaritans’ even if the very purpose of their organization is to provide first aid or other emergency medical care.

If St John has entered into an agreement to provide health services, then it, and by extension its members, are duty bound to render assistance when asked to do so.  Given St John holds itself out as a leader in first aid, and provides people ranging from first aiders to medical practitioners with claimed expertise in the field, it would be perverse if it were held to a lower standard of care – that is a standard of ‘good faith’ rather than ‘reasonable care’ when it comes to the provision of the very service it claims to be expert in providing. If the reasoning in Velazquez v Jiminez were applied that would take them outside the good Samaritan legislation and I think that is the better analysis than that given by the then NSW Premier. 

In any event St John Ambulance is paid to provide event health services. Even if it sometimes provides health services without a fee, it receives donations because of its role as a first aider. Both generally, and in specific cases, St John receives money to provide first aid services so it is not a good Samaritan.  A person who needs assistance approaches the first aiders on duty not because they want assistance from that person, they want assistance from St John Ambulance. St John Ambulance provides that assistance through the volunteer who acts as the hands and eyes of St John.  If there is negligence it is St John Ambulance that was negligent in the way it, through its volunteer, rendered care.  Any injured patient could (and would be well advised to) sue St John Ambulance (Vic) and not any particular first aider.

If St John volunteers, whilst on duty, are not good Samaritans (or even if they are) they are further protected by the Wrongs Act 1958 (Vic) s 37. That section says

(1)        A volunteer is not liable in any civil proceeding for anything done, or not done, in good faith by him or her in providing a service in relation to community work organised by a community organisation.

(2)        Any liability resulting from an act or omission that would but for subsection (1) attach to the volunteer attaches instead to the community organisation.

Without tracing it in detail I think we can accept that St John is a community organisation (see s 34) and that being a volunteer is doing community work (s 36).  This also confirms that whilst the volunteer is not liable, the organisation for which they volunteer is.

St John volunteers who are not on duty but step forward to assist at a medical emergency or other accident would be protected by Victoria’s good Samaritan legislation. The legislation was originally written to reassure health practitioners that if they assisted at an emergency they would not be required to treat a person as if they had the resources and teams that they would have in a hospital (see Good Samaritan legislation – a comparison (February 22, 2017) and the discussion of the first Australian good Samaritan law, the Law Reform Act 1995 (Qld) which applies only to doctors and nurses, and the findings of the Ipp Review). Equally St John volunteers who may be used to being part of a larger team, equipped with oxygen, a defibrillator, pain relief drugs etc should not be worried that if they go to assist someone with nothing that somehow they will be held to the standard that could be expected from an equipped St John team. It is in exactly those circumstances that legislation such as the Wrongs Act 1958 (Vic) s 31B is meant to apply; not because anyone has been sued in those circumstances but because it was believed a fear of being sued may make people who could help reluctant to do so.

Conclusion

It is arguable that St John volunteers whilst on duty with event health services are protected by Victoria’s ‘Good Samaritan’ legislation, but I think that result would be perverse and not what the legislation was intended to cover. A better analysis is that they are protected by the volunteer protection provisions which says that although the volunteers are not liable, the organisation for which they volunteer – in this case St John Ambulance Australia (Victoria) – would be liable for any negligence.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.