Protecting volunteers– a review of recent legislative developments. Michael Eburn School of Law University of New England

7 July 2003Michael Eburn Uni of New England 2 Volunteers Civil Liability Act 2002 (NSW). ‘Good Samaritans’ (Division 8). Members of community organisations (Division 9).

7 July 2003Michael Eburn Uni of New England 3 Good Samaritans- Ipp Review …the Panel is not aware, from its researches or from submissions received by it, of any Australian case in which a good Samaritan (a person who gives assistance in an emergency) has been sued by a person claiming that the actions of the good Samaritan were negligent. Nor are we aware of any insurance-related difficulties in this area.

7 July 2003Michael Eburn Uni of New England 4 Premier’s 2 nd Reading Speech The bill will also protect the good faith actions of good Samaritans who come to the assistance of a person in danger. This 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. Individual volunteers will also be protected from law suits where their actions were done in good faith. It is not intended to alter the potential liability of a community organisation by providing the individual members with immunity.

7 July 2003Michael Eburn Uni of New England 5 Premier’s 2 nd Reading Speech The bill will also protect the good faith actions of good Samaritans who come to the assistance of a person in danger. This 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. Individual volunteers will also be protected from law suits where their actions were done in good faith. It is not intended to alter the potential liability of a community organisation by providing the individual members with immunity.

7 July 2003Michael Eburn Uni of New England 6 For protection:- There must be ‘an emergency’; The Good Samaritan must be ‘assisting a person who is apparently injured or at risk of being injured’; The Good Samaritan must be acting in good faith; and Without expectation of payment or other reward.

7 July 2003Michael Eburn Uni of New England 7 Other issues Duty to treat. Vicarious Liability.

7 July 2003Michael Eburn Uni of New England 8 Volunteers (Division 9) Ipp Review –The Panel is not aware of any significant volume of negligence claims against volunteers in relation to voluntary work, or that people are being discouraged from doing voluntary work by the fear of incurring negligence liability. The Panel has decided to make no recommendation to provide volunteers as such with protection against negligence liability.

7 July 2003Michael Eburn Uni of New England 9 Civil Liability Act 2002 (NSW) 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, or (b) as an office holder of a community organisation.

7 July 2003Michael Eburn Uni of New England 10 Protection does not apply if: The volunteer is –engaged in criminal activities; –Intoxicated; or –acting outside the scope of his or her duties or contrary to instructions. OR if the risk –is one that the organization was required to be insured against; or –arises out of a motor vehicle accident.

7 July 2003Michael Eburn Uni of New England 11 Vicarious liability Are organisations vicarious liable for their volunteers? Non-delegable duty of care?

7 July 2003Michael Eburn Uni of New England 12 Ad hoc reforms Ipp Review ‘Principle-based reform favours consistency and uniformity and requires special provisions for particular categories of cases to be positively argued-for and justified. This is the approach to reform that the Panel has adopted in conducting the review and making its proposals and recommendations.’

7 July 2003Michael Eburn Uni of New England 13 Conclusion Thank you for your attention.