Clearing up the legal myths Dr Michael Eburn School of Legal Practice Australian National University CANBERRA

Duty of care

Duty of Care Except in the Northern Territory, there is no duty to rescue a stranger. (Criminal Code (NT) s155; Stuart v Kirkland-Veenstra [2009] HCA 15). A duty to take care will arise if you do provide first aid – Consider snails and ginger beer!

Donoghue v Stevenson “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? … persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation … ([1932] AC 562 (Lord Aitken)).

Donoghue v Stevenson “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? … persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation … ([1932] AC 562 (Lord Aitken)).

If there’s no duty to act Then the only duty can be a duty not to make the situation worse; there’s no obligation to make it better. Capital and Counties v Hampshire County Council [1997] 2 All ER 865.

Good Samaritan protection A " good samaritan" is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured.” (Civil Liability Act 2002 (NSW) s 56)

Good Samaritan protection “A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.” (Civil Liability Act 2002 (NSW) s 57).

What does good faith mean? ‘The statutory concept of "good faith" … calls for more than honest ineptitude. There must be a real attempt …’ (Mid Density Developments Pty Limited v Rockdale Municipal Council [1993] FCA 408, [34] (Gummow, Hill, Drummond JJ). You don’t have to act within scope and in accordance with training – that’s the whole point! (Consider Carter v Reese 2014-Ohio-5395).

There are exceptions If you cause the injury in the first place (s 58(1)); If you are intoxicated (s 58(2)) or You are “impersonating a health care or emergency services worker or a police officer or is otherwise falsely representing that the person has skills or expertise in connection with the rendering of emergency assistance” (s 58(3)).

Volunteer Protection A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work: (a) organised by a community organisation … (Civil Liability Act 2002 (NSW) s 61).

Does not apply if the volunteer Acts criminally (s 62); Is intoxicated (s 63); If insurance is required (s 65); Is involved in a Motor Vehicle Accident (s 66) or …

Does not apply if the volunteer … knew or ought reasonably to have known that he or she was acting: (a) outside the scope of the activities authorised by the community organisation concerned, or (b) contrary to instructions given by the community organisation. (Civil Liability Act 2002 (NSW) s 64).

Consent

Consent May be express or implied. It’s not implied consent that justifies treatment of those that cannot consent, It is “necessity”.

In Re F [1990] 2 AC 1 The basic requirements, applicable in these cases of necessity, that, to fall within the principle, not only must there be a necessity to act when it is not practicable to communicate with the assisted person, but also the action taken must be such as a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.

In Re F [1990] 2 AC 1 On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

In Re F [1990] 2 AC 1 On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

In Re F [1990] 2 AC 1 On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

A refusal: Was the patient competent? Was their refusal informed? Does it cover the situation that now arises? There is no mandatory form (particularly in NSW).

Consider Malette v Shulman “I do not agree … that the Jehovah’s Witness card can be no more than a meaningless piece of paper. … the instructions in the Jehovah’s Witness card imposed a valid restriction on the emergency treatment that could be provided to Mrs. Malette and precluded blood transfusions. … [She had] chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes, that she does not consent to blood transfusion…” ((1990) 67 DLR (4th) 321,Robins JA).

Consider Malette v Shulman “I do not agree … that the Jehovah’s Witness card can be no more than a meaningless piece of paper. … the instructions in the Jehovah’s Witness card imposed a valid restriction on the emergency treatment that could be provided to Mrs. Malette and precluded blood transfusions. … [She had] chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes, that she does not consent to blood transfusion…” ((1990) 67 DLR (4th) 321,Robins JA).

Who’s going to sue? Probably no-one but consider: The estate of the dead patient? The patient that survives with no deficit?

Who’s going to sue? Probably no-one but consider: The estate of the dead patient? The patient that survives with no deficit? Perhaps.

Who’s going to sue? Probably no-one but consider: The estate of the dead patient? The patient that survives with no deficit? Perhaps. The patient that is left with permanent ongoing disability – the very thing they wanted to avoid?

Who’s going to sue? Probably no-one but consider: The estate of the dead patient? The patient that survives with no deficit? Perhaps. The patient that is left with permanent ongoing disability – the very thing they wanted to avoid? Quite possibly.

Event Health Services are different There must to be a duty to act. (Lowns v Woods (1996) AustTortsReps ¶81-376). They’re not good Samaritans, but they are volunteers. St John is providing a service: “A supplier guarantees that services are provided: • with due care and skill …” (Australian Consumer Law, s 60).

What else? Thank you for your attention Michael Eburn P: 02 6125 6424 E: michael.eburn@anu.edu.au B: https://emergencylaw.wordpress.com/ W: https://law.anu.edu.au/people/michael-eburn