Today’s question comes from a member of a strata property’s owner’s committee in Victoria. The committee is debating the installation of an Automatic External Defibrillator (AED).  The Committee would propose to follow all the manufacturer’s instructions regarding maintenance. Even so, I’m told that ‘In some quarters there has been concern about potential liability if we have an AED and it has an unknown fault which prevents it from functioning in an emergency situation.’  I’m asked to assume:

… In a cardiac emergency, someone tries to use the AED but, due to an unforeseen technical fault, it fails to function properly, and the patient is not resuscitated.

I am asked:

In this situation, is the Owners Corporation and / or the Owners Committee (collectively or individually) liable and is there potential for a lawsuit?

The short answer

No.

The long answer

Duty

Liability can arise if there is a duty of care, a breach of that duty that is a failure to take reasonable care, and that breach causes loss or damage.

There is, at this stage, no legal duty to install an AED – see:

There is also no common law duty to rescue – see No duty to prevent a disaster and no duty to rescue (December 26, 2018). Consistent with the cases discussed there, and the UK case of Capital and Counties v Hampshire Council [1997] QB 2004 the duty, if any, that an owner’s corporation would owe to a person suffering a sudden cardiac arrest is a duty not to make the situation worse, it is not a duty to make it better. 

Occupiers of premises have a duty to those that enter the premises. The Wrongs Act 1958 (Vic) s 14B(3) says:

An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.

If a person takes the AED and for unknown reasons it fails to work, the patient is no worse off than if there was no AED.  The cause of the person’s predicament is their sudden cardiac arrest not the presence or absence of the AED.  Under either the common law or the statutory duty the failure of the AED is not the cause of anyone’s injury or damage and the failure to make the situation better is not a breach of any relevant duty.

Breach

Let us assume for the sake of the argument, there is a duty of care. Then the next question is was the duty breached? Did the owner’s corporation take reasonable care? The assumption is that all the manufacturer’s maintenance recommendations will be followed.

The Wrongs Act 1958 (Vic) s 48(1) says:

A person is not negligent in failing to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

Is it foreseeable that an AED will not work? I guess so, we are discussing it so we can foresee it.

Is the risk ‘not insignificant’? That term is defined (s 48(3)) to include, but is ‘not limited to, risks that are far-fetched or fanciful’.  I guess it’s not ‘far-fetched or fanciful’ that an AED may fail.

What would a reasonable person do about that risk?  In deciding that question we must have regard to (s 48(2)):

a) the probability that the harm would occur if care were not taken;

b) the likely seriousness of the harm;

c) the burden of taking precautions to avoid the risk of harm;

d) the social utility of the activity that creates the risk of harm.

The real harm is death by sudden cardiac arrest but let us assume for the sake of the argument the failure of the AED is a relevant ‘harm’.  How likely is that it will fail?  I don’t know but I suspect very unlikely. As my correspondent says ‘I assume that the probability of failure of the AED is very small, given the regular automatic self-test of the unit and indication if there is a fault condition’. So the probability of failure is low.

What is the consequence of that failure? The patient doesn’t get the benefit of the AED; but not everyone in cardiac arrest will benefit from an AED that is not every cardiac arrythmia can be corrected by an AED; and no everyone who would benefit from an AED will survive even if one is used. What the patient may miss out on is a chance of increased survival.

What precautions would one reasonably take to avoid that failure? Follow the manufacturer’s maintenance instructions.

What is the social utility? If you have an AED, and it works, it may save a life. If you don’t have an AED then the patient is denied that chance. So there is great social utility in having one and if by some chance it fails to work the patient is in the same position as if you did not have one so there is no chance of increasing the risk to anyone. At worst you don’t extend a benefit.

On any calculus if you install one, follow the manufacturer’s instructions but for some unknown reason on the day someone goes to use it, it doesn’t work there would be no breach of duty.

Damage

Even if there was a duty of care to have a working AED, and even if there was a breach of that duty, then any legal action would require proof of damage, that is proof that it is more likely than not that if the AED would have worked, the outcome would have been better.

The statistics may say the chance of survival is increased with early CPR and early defibrillation, but the chance of survival is still low.  NSW Health says ‘Over 33,000 people experience an out of hospital cardiac arrest in Australia every year. Less than 9% will survive’.  If anyone were to sue they would have to show, on the balance of probabilities, that the working AED would have made a difference to the outcome of that particular case. But that will be impossible.  We cannot know in advance who will be in the 9% nor, I would suggest, would an autopsy show that a particular patient would have benefited. It may show given the damage and cause of death eg a ruptured aortic aneurysm that a particular patient would not have benefited, but it couldn’t show who would.

On the balance of probabilities, a person who suffers a sudden cardiac arrest will die.  That is what makes the success stories newsworthy. The aim of AEDs is to try to get the survival rate up, but no-one suggests it’s going to get to higher than 50%.

If the AED doesn’t work, it won’t have ‘caused’ any harm to the patient.  It didn’t make things worse, it just did not make it better and there is no guarantee in any particular case that it will.

Discussion

The thing that really concerns me is that the fear of getting sued outweighs the fear of letting someone die if you could do something to prevent that.  No AED and you don’t get sued but do you feel comfortable telling the family of deceased you were happier to stand back and let them die rather than do something that might help?  Will the owner’s committee at the next meeting all pat themselves on the back saying ‘the resident at number 10 died last night, but at least our insurer is saved from legal action?’ 

No-one’s been sued for doing first aid. No-one’s going to be sued for, in good faith, installing an AED, maintaining it and for some reason it doesn’t work.  The risk would be the same if you were present at a cardiac arrest and the person doing CPR said ‘can you ring an ambulance?’, you pull your phone out of your pocket and say ‘oh goodness, my phone’s not working’.  But do you refuse to carry a phone because one day, in an emergency, it may not work?

The legal risk for an owner’s corporation would be much greater if the elevator doesn’t work and people get trapped. This is not however the place for legal advice, so if the owner’s corporation is concerned, they should speak to their insurer who, I’m sure, would confirm that the legal risk is non-existent.

Conclusion

There is no legal risk that installing an AED and following the manufacturer’s maintenance instructions would expose an owner to risk of liability if for some unknown, unforeseen reason the machine failed to operate.

For further discussion see:

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.