A seller of defibrillators in NSW says:
We have a question from a customer – they would like to know if they have a defib and in case someone had a cardiac arrest on their premises or close by and they did not use the defib for that incident is the company liable?
The short answer is ‘no’; the longer answer is it depends on the circumstances.
A key issue is who has the cardiac arrest – is it a stranger – someone who just happens to be nearby – a visitor to the customer’s business or a staff member?
If it’s a stranger – someone ‘close by’, there is no duty to rescue a stranger (Stuart v Kirkland-Veenstra [2009] HCA 15). If there is no legal duty to attend there can be no liability for failure to do so.
If the person with the cardiac arrest is a staff member or a visitor to the customer’s business, then clearly there is a duty including a duty to provide first aid (Work Health and Safety Regulation 2017 (NSW) r 42). As the occupier of the premises there must be also be a common law duty to do something – you can’t just have a person die in your premises and do nothing; you would have to at least call triple zero and facilitate ambulance access.
But those duties still do not establish liability. The duty under both common law and legislation requires a defendant to act reasonably. That begs the question of ‘why was the defibrillator was not used?’ If there is some good reason, then there can be no liability.
The biggest issue is causation. For liability to be established a plaintiff would have to prove that it would have made a difference. Defibrillators may increase the chance of surviving an out of hospital cardiac arrest, but they do not guarantee that outcome. Most people who suffer an out of hospital cardiac arrest die, even with a defibrillator. On the balance of probabilities – that is it is more likely than not – that a defibrillator won’t save the patient’s life. That is not to suggest that they should not be deployed, they increase the chance of survival in the same way that CPR increases the chance of survival. Without intervention the chance of survival is zero. Getting the chance above zero is good but it is still not the case that the survival rate for out of hospital cardiac arrest, even with a defibrillator, is greater than 50%.
For related posts see:
- Making the installation of AED’s compulsory (September 27, 2015);
- Liability for failing to install an AED? (April 7, 2016);
- Legal issues when installing a defibrillator? (August 23, 2016);
- Choosing not to install an AED for spurious reasons (September 10, 2018);
- Liability for installing, or not, an AED in a retirement community (December 1, 2018);
- Fear of legal risk for installing AEDs is misplaced (September 17, 2019); and
- Bill for mandatory installation of AEDs passes in South Australia (December 11, 2022).
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.
Australian Emergency Law 
You mentioned 50%. Is this related to civil trials, ie balance of probabilities? Would the answer be different if the rate of survival if an AED is used was more than 50%? Or does it need to be 50% more than the rate of survival without an AED?
A plaintiff would have to prove that it was ‘more likely than not’ that the defendant caused their loss. If survival rate with a AED was greater than 50% then one could argue that it was ‘more likely than not’ that had it been used the patient would have survived. Where the survival rate is less than 50% (and my understanding is that it is much less than 50%) then it is ‘more likely than not’ that using a AED won’t actually save a person. So failing to use one won’t be the cause of their death or loss. So yes, it relates to the burden in civil cases to prove the claim ‘on the balance of probabilities’.
Hi Michael
Just to point out that the survival rate if an AED is used may approach that 50% mark – WA’s most recent cardiac arrest report shows that over the past 5 years patients have a survival rate of 48% if they receive a shock from a community AED as opposed to one delivered by an ambulance. Arguably a patient in the shop might have an even higher chance because of the shorter time to defibrillation rather than someone having to go and fetch an AED.
See: SJA0299_2022-OHCA-Report_v6.pdf (stjohnwa.com.au) page 17.
Obviously this depends on patients having a shockable rhythm – but there’s good reason to suspect that a lot of patients with a sudden collapse will (that might have devolved into a non shockable rhythm prior to ambulance arrival) – there’s no good way to quantify this.
Hopefully this data would encourage people to have an AED because of the difference they can make, rather than discouraging them due to a liability issue – but I’d be interested to know if this changes the picture?
That will make the argument that the failure to have or deploy an AED was a cause of the person’s death if their was a duty to intervene. There is still no duty to aid a stranger but for workplaces it will be interesting. If it’s a 48% survival rate for those with a shockable rhythm its less than that for all out of hospital cardiac arrest but it would lead to arguments about whether this patient had, on the balance of probabilities, a shockable rhythm.
Thanks for this post!
I wondered if I could ask something releated but slightly adjacent to clarify… if say a business has an AED inside are the staff legally obliged to lend out the AED if a member of the public asked to use it nearby but off the business premises?
I am based in Tasmania, and work as a Paramedic here, where we have a public register of AEDs and a Good SAM community cardiac arrest response opt-in network.
The requirements for AED owners who register for the Good SAM program obviously demand the AED is accessible and provided when asked for by the public but what about businesses or groups who are not registered foe this but do advertise their AED as available but then decline to provide it for genuine cases?
Could the business validly decline to lend it without penalty if they thought it was a hoax or theft? Would this still stand if the need was genuine?
I atyempted to search within the Tas Civil Liabilities Act but came up with nada, but this may well be my error.
No, with the exception of South Australia, there is no obligation to hand out the AED to someone who asks for it. There is no duty to come to the aid of others and failing to give out the AED doesn’t make the patient’s position worse, it just doesn’t make it better.
Thank you for taking the time to clarify!