Today’s correspondent asks:

If a faith-based organisation (in this case a church) agrees to pay for the training of a first aider, and that first aider agrees to act as the parish first aider for all events and services.  Does the Good Samaritan law still apply?  I understand that there is also a Duty of Care obligation to the parishioners, but I wanted to understand if the Good Sam law applies to the first aider given, they are undertaking a role on behalf of the church.  And in turn what liability the church would have in the unlikely event of litigation.  I am based in Victoria.

There is no clear answer to that, in part because these laws have never been tested.

The Wrongs Act 1958 (Vic) s 31B(1) defines a ‘good Samaritan’ as:

… 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.

That is different to NSW that refers to ‘payment or other reward’ (see Are St John Ambulance (Victoria) volunteers ‘good samaritans’? (July 25, 2023).  I would think a member of a church is getting some ‘other reward’ for volunteering to be part of the team, but in Victoria it has to be a ‘financial reward’.  If the parish pays for the person’s first aid training that might constitute a financial reward.

As my correspondent has noted there is a duty to parishioners. If the church were in any jurisdiction other than Victoria, the Work Health and Safety Act would apply, the church, assuming it employs someone, would be a person conducting a business or undertaking and would therefore have a duty to ensure there were adequate numbers of trained first aiders (SafeWork Australia, Work Health and Safety Model Regulation, cl 42).  

Victoria has not adopted the national WHS scheme. In Victoria the Occupational Health and Safety Act 2004 (Vic) applies.  Assuming the church is an employer then it has a duty to ‘ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer’ (s 23(1)).   Unlike the Work Health and Safety model, there is no specific, general duty to provide first aid. WorkSafe Victoria however interpret the obligation to ‘provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer’ (s 21(2)(d)) as including a duty to ensure ‘appropriate first aid measures are in place, including providing first aid kits and suitably trained first aid officers for the welfare of employees’ (WorkSafe Victoria, Compliance Code: First Aid in the Workplace (1st ed, November 2021), [8]).

Given the church has an obligation to provide first aid if it could be shown that using volunteer members saved the church and thereby those members money -eg if there was a expectation to meet the costs of the church but these were reduced given the volunteers then that too may constitute a financial reward.

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

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 person who has volunteered to be the church first aider, is under a duty to assist as the church is under a duty to provide first aid (discussed above) and it meets that duty by having these first aiders.

It could be argued therefore that the good Samaritan provisions do not apply.  And why would one want to argue that? Because an injured person would want to sue the church not the first aider. If the first aider was negligent then the church will be vicariously liable.

But what if the statute does apply? On one view there could be no vicarious liability – if the good Samaritan is not liable no one can be vicariously liable. That appears to be the intention behind the Civil Liability Act 2002 (NSW) s 3C which 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.

But there is no equivalent provision in Victoria or the other states and territories.  In Victoria it could be argued that s 31B doesn’t deny that a person or organisation that uses volunteers is not liable just because the volunteers themselves are not.  That would be consistent with s 37 that says that 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’ but the community organisation is. That ensures that a community organisation, like an employer, is responsible for selecting and training its volunteers and so it, like an employer, should be liable for their negligence in the performance of their duties for that organisation.

Even if the Act did apply a plaintiff would try to get around it by suing the church on the basis of its non-delegable duty to take care of its parishioners and by alleging negligence in the selection, training, and supervision of its volunteers.   If that were not the case a person who was injured by a volunteer first aider would have no recourse regardless of the level of negligence and that would not be a good or acceptable outcome.

In my view a person who volunteers to be the church first aid officer is not a good Samaritan. They are not just a bystander who happens upon an accident, they are set up and holding themselves out to perform the service that the church must provide. It is better to see them as volunteers. Whether they are a ‘good Samaritan’ or a ‘volunteer’ they are not personally liable for their good faith efforts to render assistance.  If they are a volunteer then the church remains liable in the event of negligence.  If they are ‘good Samaritans’ then it is at least arguable that the church would remain liable and any clever lawyer would frame any legal action as being against the church for its failure to ensure reasonable care was provided rather than trying to sue the first aider.

What that means is that the church, regardless of how the volunteer is classified, should assume that it would be liable in the extremely unlikely event of litigation where the allegation is that a person was injured due to the negligent provision of first aid.  I’m sure the church has public liability insurance as it no doubt carries many risks with respect to parish activities and that someone may trip and fall on the church grounds or get injured in a play group etc.  That insurance would almost certainly extend to the provision of first aid because it would form part of the church’s public liability and add zero to the total risk (but of course the question of exactly what is covered should be directed to the insurer or broker).

Conclusion

The point of the good Samaritan legislation was to encourage people to step up at an accident. It was not intended to apply to people who have agreed to take on the role of first aider. For those people the volunteer provisions apply, also ensuring that they are not liable but that the organisation for which they volunteer is.

Either way the church should assume that it would be liable – either directly or vicariously liable – for any negligent performance by a first aider who they have selected and trained. But that should not scare anyone. The risk will be the same whether the first aid officer is an employee or a volunteer. And the risk is much lower than the legal risk of having no first aid facilities. The risk of liability is minimal (remember no-one’s been sued for doing first aid) and is no doubt covered by existing public liability insurance arrangements.

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.