1. ‘Will I be sued?’ Legal considerations in first aid Duty of care; Good Samaritan and volunteer protection; and Consent.
Dr Michael Eburn
School of Legal Practice
Australian National University
CANBERRA

2. Will I be sued?

3. Will I be sued?
Almost certainly ‘no’.

4. 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 –

5. 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)).

6. 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)).

7. “The common law
generally does not impose a duty upon a person to take affirmative action to protect another from harm…

8. “The common law
generally does not impose a duty upon a person to take affirmative action to protect another from harm… The law draws a distinction between the creation of, or the material increase of, a risk of harm to another person and the failure to prevent something one has not brought about.” (Stuart v Kirkland-Veenstra [2009] HCA 15, [127] (Crennan and Kiefel JJ)).

9. “The common law
generally does not impose a duty upon a person to take affirmative action to protect another from harm… The law draws a distinction between the creation of, or the material increase of, a risk of harm to another person and the failure to prevent something one has not brought about.” (Stuart v Kirkland-Veenstra [2009] HCA 15, [127] (Crennan and Kiefel JJ)).

10. 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.

11. But why sue the first aider?
“Mistakes and mischances are to be expected when human beings, how-ever well trained, have to cope with a crisis; what exactly they will be cannot be predicted, but … the wrongdoer cannot, I think, escape responsibility for them and their consequences… He must accept the risk of some unexpected mischances.” (Knightley v Johns [1981] EWCA Civ pp (StephensonLJ)).

12. Good Samaritan and volunteer protection

13. 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).

14. 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 56).

15. Honestly v good faith
‘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 Ohio-5395).

16. 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).

17. Does not apply if the volunteer
Was committing a criminal offence (s 62);
Is intoxicated (s 63);
Is required to have insurance (s 65);
Is involved in a Motor Vehicle Accident (s 66);
or …

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

19. Consent

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

21. Collins v Wilcock [1984] 3 All ER 374, 378
“The fundamental principle, plain and incontestable, is that every person's body is inviolate… any touching of another person, however slight, may amount to a battery. But …

22. Collins v Wilcock [1984] 3 All ER 374, 378
… most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society … Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.”

23. In Re F [1990] 2 AC 1
As I pointed out in Collins v Wilcock … a broader exception has been created to allow for the exigencies of everyday life … This exception has been said to be founded on implied consent … Today this rationalisation can be regarded as artificial; and, in particular, it is difficult to impute consent to those who, by reason of their youth or mental disorder, are unable to give their consent…

24. In Re F [1990] 2 AC 1
As I pointed out in Collins v Wilcock … a broader exception has been created to allow for the exigencies of everyday life … This exception has been said to be founded on implied consent … Today this rationalisation can be regarded as artificial; and, in particular, it is difficult to impute consent to those who, by reason of their youth or mental disorder, are unable to give their consent…

25. In Re F [1990] 2 AC 1
On what principle can medical treatment be justified when given without consent?

26. In Re F [1990] 2 AC 1
On what principle can medical treatment be justified when given without consent? We are searching for a principle on which, in limited circumstances, recognition may be given to a need, in the interests of the patient, that treatment should be given to him in circumstances where he is (temporarily or permanently) disabled from consenting to it. It is this criterion of a need which points to the principle of necessity as providing justification.

27. In Re F [1990] 2 AC 1
On what principle can medical treatment be justified when given without consent? We are searching for a principle on which, in limited circumstances, recognition may be given to a need, in the interests of the patient, that treatment should be given to him in circumstances where he is (temporarily or permanently) disabled from consenting to it. It is this criterion of a need which points to the principle of necessity as providing justification.

28. 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.

29. 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.

30. 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.

31. 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.

32. A refusal: Was the patient competent? Was their refusal informed?
Does it cover the situation that now arises?
There is no mandatory form.

33. 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).

34. 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).

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

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

37. 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?

38. 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.

39. What if someone I taught gets it wrong
You can’t be liable for that.
You can only certify a person is competent on the day. You can’t know how they’ll perform in reality.
You can’t owe a duty of care to everyone they may treat – that’s an undefined class.
You’re not responsible for the performance of others.

40. What else? Thank you for your attention Michael Eburn P: 02 6125 6424E: B: W: