REPORT

CIVIL LIABILITY OF GOOD SAMARITANS AND VOLUNTEERS

(LRC 93 - 2009)

© COPYRIGHT

Law Reform Commission

FIRST PUBLISHED May 2009

ISSN 1393-3132

 

LAW REFORM COMMISSION‟S ROLE

The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. The Commission‟s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernize the law. Since it was established, the Commission has published over 140 documents containing proposals for law reform and these are all available at www.lawreform.ie. Most of these proposals have led to reforming legislation.

The Commission‟s role is carried out primarily under a Programme of Law Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the Commission following broad consultation and discussion. In accordance with the 1975 Act, it was approved by the Government in December 2007 and placed before both Houses of the Oireachtas. The Commission also works on specific matters referred to it by the Attorney General under the 1975 Act. Since 2006, the Commission‟s role includes two other areas of activity, Statute Law Restatement and the Legislation Directory.

Statute Law Restatement involves the administrative consolidation of all amendments to an Act into a single text, making legislation more accessible. Under the Statute Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on as evidence of the law in question. The Legislation Directory - previously called the Chronological Tables of the Statutes - is a searchable annotated guide to legislative changes. After the Commission took over responsibility for this important resource, it decided to change the name to Legislation Directory to indicate its function more clearly.

ii

 

MEMBERSHIP

The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners.

The Commissioners at present are:

President:

The Hon Mrs Justice Catherine McGuinness Former Judge of the Supreme Court

Full-time Commissioner:

Patricia T. Rickard-Clarke, Solicitor

Part-time Commissioner:

Professor Finbarr McAuley

Part-time Commissioner:

Marian Shanley, Solicitor

Part-time Commissioner:

Donal O‟Donnell, Senior Counsel

iii

 

LAW REFORM RESEARCH STAFF

Director of Research:

Raymond Byrne BCL, LLM (NUI), Barrister-at-Law

Legal Researchers:

Chris Campbell, B Corp, LLB Diop Sa Gh (NUI)

Frances Colclough BCL, LLM (NUI)

Siobhan Drislane BCL, LLM (NUI)

Claire Murray, BCL (NUI), Barrister-at-Law

Gemma Ní Chaoimh BCL, LLM (NUI)

Bríd Nic Suibhne BA, LLB, LLM (TCD), Diop sa Gh (NUI)

Jane O„Grady BCL, LLB (NUI ), LPC (College of Law)

Gerard Sadlier BCL (NUI)

Joseph Spooner, BCL (Law with French Law) (NUI), Dip. French and

European Law (Paris II), BCL (Oxon)

Ciara Staunton BCL, LLM (NUI), Diop sa Gh (NUI)

STATUTE LAW RESTATEMENT

Project Manager for Restatement:

Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor

Legal Researchers:

John P Byrne BCL, LLM, PhD (NUI), Barrister-at-Law

Elizabeth Fitzgerald LLB, M.Sc. (Criminology & Criminal Justice),

Barrister-at-Law

Catriona Moloney BCL (NUI), LLM (Public Law)

LEGISLATION DIRECTORY

Project Manager for Legislation Directory:

Heather Mahon LLB (ling. Ger.), M.Litt, Barrister-at-Law

Legal Researchers:

Margaret Devaney LLB, LLM (TCD)

Rachel Kemp BCL (Law and German), LLM (NUI)

iv

 

ADMINISTRATION STAFF

Head of Administration and Development:

Brian Glynn

Executive Officers:

Deirdre Bell Simon Fallon Darina Moran Peter Trainor

Legal Information Manager:

Conor Kennedy BA, H Dip LIS

Cataloguer:

Eithne Boland BA (Hons), HDip Ed, HDip LIS

Clerical Officers:

Ann Browne Ann Byrne Liam Dargan Sabrina Kelly

PRINCIPAL LEGAL RESEARCHERS FOR THIS REPORT

Eleanor Leane LLB, LLM (NUI) Tara Murphy BCL, LLM (Essex)

v

 

CONTACT DETAILS

Further information can be obtained from:

Head of Administration and Development

Law Reform Commission

35-39 Shelbourne Road

Ballsbridge

Dublin 4

Telephone:

+353 1 637 7600

Fax:

+353 1 637 7601

Email:

info@lawreform.ie

Website:

www.lawreform.ie

vi

 

ACKNOWLEDGEMENTS

The Commission would like to thank the following people who provided valuable assistance, and a number of whom attended the Commission‟s Seminar on Good Samaritans and Volunteers on 20 May 2008:

Ms Phil Corcoran, St John‟s Ambulance Brigade

Dr Ciaran Craven, School of Law, Trinity College Dublin

Croi, University Hospital Galway

Ms Mary Davis, Chair, Taskforce on Active Citizenship

Dr Joe Galvin, Consultant Cardiologist, Mater Hospital Cardiology Department

Ms Jacinta Hastings, Chief Executive Officer, Bodywhys

Irish Mountain Rescue Association

Mr Martin Kirwan, Civil Defence Board

Mr Patick Little, Chief Executive Office, Migraine Association of Ireland

Ms Cliona McCormack, Public Affairs Executive, Rehab Group

Dr Morgan McElligott

Ms Sharon McElligott, Murphy McElligott

Ms Yvonne McKenna, Chief Executive Officer, Volunteer Centres Ireland

Muintir na Tire

Ms Ellen O‟Malley-Dunlop, Chief Executive Officer, Dublin Rape Crisis Centre

Mr John O‟Neill, Civil Defence Board

Mr Frank Watters, Dundalk IT

Full responsibility for this publication lies, however, with the Commission.

vii

 

TABLE OF CONTENTS

1

A

Request by the Attorney General

1

B

General background and consultation process

1

C

Outline of this Report

2

BACKGROUND AND POLICY SETTING

5

A

Introduction

5

B

Good Samaritan Bill 2005

5

C

The policy setting: (1) sudden cardiac death and defibrillators

7

D

Volunteering and Active Citizenship

11

E

Conclusions

16

A DUTY TO INTERVENE AND RESCUE

17

A

Introduction

17

B

No general duty to intervene and rescue in Irish law

17

18

19

20

C

A duty to intervene and rescue in Irish law in specific

26

26

28

29

33

34

36

37

D

Consideration of a general duty to intervene and rescue

37

37

38

45

45

viii

 

DUTY OF CARE AND STANDARD OF CARE

49

A

Introduction

49

B

Law of Negligence

49

49

50

53

54

C

Duty and Standard of Care of Good Samaritans

56

56

61

D

Voluntary Rescuers

63

63

67

E

Voluntary Service Provider

71

71

79

F

Conclusions

82

THE CONTENTS OF THE GOOD SAMARITAN AND

85

A

Introduction

85

B

Forms of Protection Already Available

85

85

88

C

Overview of Good Samaritan and Volunteer Legislation in other States

89

89

90

D

Detailed elements of the proposed legislation (1) Single piece of legislation for Good Samaritans and Volunteers

105 105

107

107

108

110

111

113

114

116

117

ix

 

SUMMARY OF RECOMMENDATIONS 119

APPENDIX

DRAFT CIVIL LIABILITY (GOOD SAMARITANS AND VOLUNTEERS) BILL 2009 121

x

 

TABLE OF LEGISLATION

Alabama Code

Arkansas Annotated Code

California Business and Professions Code

Charities Act 2009

Civil Law (Wrongs) Act 2002

Civil Defence Act 2002

Civil Liability (Amendment) Act 2008

Civil Liability (Good Samaritan) Amendment Bill 2007

Civil Liability Act 1936

Civil Liability Act 2002

Civil Liability Act 2002

Civil Liability Act 2002

Colorado Revised Statutes

Companies Act s1963 to 2006

Delaware Annotated Code

Emergency Medical Aid Act 1979

Emergency Medical Aid Act 2000

Fire Services Act 1981 Florida Statutes 2008

Georgia Code

Good Samaritan Act 1996

Good Samaritan Act 2001

Good Samaritan Bill 2005

Hawaii Revised Statutes

Idaho Code

Illinois Compiled Statutes

Kansas Statutes 2005

USA

USA

USA

2009/No.6

Irl

A2002-40 (CT)

Aus

2002/No.16

Irl

No 39/2008 (T)

Aus

(Q)

Aus

(SA)

Aus

No 22/2002

Aus

(NSW)

(WA)

Aus

No 54/2002 (T)

Aus

USA

Irl

USA

RSS 1978, c E-8

Can

RSA 2000, c E-7

Can

Irl

USA

USA

RSBC 1996

Can

SO 2001, c 2

Can

No. 17/2005

Irl

USA

USA

USA

USA

xi

 

Law Reform (Miscellaneous Provisions) Act 1995

Licensing of Indoor Events Act 2003 Maine Revised Statutes

Maryland Annotated Code, Courts and Judicial Proceedings

Massachusetts General Laws 2007

Medical Act

Medical Practitioners Act 1938

Michigan Compiled Laws

Minnesota Statutes 2008

Missouri Revised Statutes 2008

New Jersey Statutes 2007

North Dakota Statutes

Occupiers Liability Act 1995

Oklahoma Statutes 2006

Planning and Development Act 2000

Protection for Persons Reporting Child Abuse Act 1998

Quebec Charter of Human Rights and Freedoms 1975

Quebec Charter of Human Rights and Freedoms 1975

Quebec Civil Code

Revised Minnesota Statutes 2007

Rhode Island General Laws

Road Traffic Act 1961

Safety, Health and Welfare at Work (General Application) Regulations 2007

Safety, Health and Welfare at Work Act 2005

Utah Code 2008

Virginia Code 2008

Voluntary Aid in Emergency Act 1973

Volunteer Services Act (Good Samaritan) 1989

No 35/1995

Aus

Irl

USA

USA

USA

CCSM c M90

Can

xxx

Aus

USA

USA

USA

USA

USA

Irl

USA

Irl

No 49/1998

Irl

Can

RSQ c C-12

Can

RSQ c C-1991

Can

USA

USA

No 24/1961

Irl

SI No 299/2007

Irl

No 10/2005

Irl

USA

USA

(Q)

Aus

RS, c 497, s 1

Can

xii

 

Volunteers Liability Act 1988

RSPEI 1988, c V-5

Can

Washington Revised Code                                                                                 USA

Wisconsin Statutes 2007-2008                                                                           USA

Wrongs (Liability and Damages for Personal Injuries)        (SA)                         Aus

Amendment Act 2002

Wrongs Act 1936                                                                (SA)                         Aus

Wrongs Act 1958                                                                No 6420/1958         Aus

(V)

Wrongs and Other Acts (Public Liability Insurance             No 49/2002 (V)        Aus

Reform) Act 2002

xiii

 

 

TABLE OF CASES

Alexandrou v Oxford

Anns v Merton London Borough Council

Bankstown City Council v Alamdo Holdings Pty Limited

Barnes v Hampshire County Council

Barnett v Chelsea and Kensington Hospital Management Committee

Blyth v Birmingham Waterworks Company

Board of Fire Commissioners v Ardouin

Boccasile et al v Cajun Music Ltd

Buck v Greyhound Lines Inc

Bulman v Furness Railway Company

Burke v John Paul & Co Ltd

Caparo Industries plc v Dickman

Capital and Counties plc v Hampshire County Council

Central Estates (Belgravia) Ltd v Woolgar

Clements v Gill

Condon v Basi

Daborn v Bath Tramways Motor Co Ltd

[1993] 4 All ER 328                                     Eng

[1978] AC 728                                             Eng

[2005] HCA 46                                            Aus

[1969] 1 WLR 1563                                     Eng

[1969] QB 428                                             Eng

(1856) 11 Ex 781                                        Eng

(1961) 109 CLR 105                                   Aus

694 A2d 686, 1997 RI Lexis 153 (SC         USA Rhode Island)

(783 P2d 437) Nev 1989

USA

(1875) 32 LT 430

Eng

[1967] IR 227

Irl

Eng

Eng

[1971] 3 All ER 647

Eng

[1953] SASR 25

SA

Eng

[1946] 2 All ER 333

Eng

Dahl v Turner

459 P2d 816 (NM Ct App 1969)

USA

xv

 

Depue v Flateau

Donoghue v Stevenson

Duff v Highlands and Island Fire Board

Dunne v National Maternity Hospital

Egedebo v Windermere District Hospital Association

Fenton v Thorley & Co Ltd

Fletcher v Commission for Public Works

Flynn v United States

Gantret v Egerton

Gautret v Egerton

Gibson v Chief Constable of Strathclyde

Gilmour v Belfast Harbour Commissioners

Glencar Exploration plc v Mayo County Council

Governors of Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd

Hargrave v Goldman

Heaven v Pender

Hedley, Byrne & Co v Heller & Partners Ltd

Home Office v Dorset Yacht Co. Ltd.

Horsley v MacLaren

Johnson v Rea

Johnson v Thompson Motors of Wykoff

100 Minn 299 [1932] AC 562 [1995] SLT 1362

[1989] IR 91

(1993) 78 BCLR (2d) 63 (BC CA)

USA

Eng

Scot

Irl

Can

[1903] AC 443

Eng

Irl

902 F2d 1524 (10th Cir

1990)

USA

(1867) 16 LT 17

Eng

(1867) LR 2 CP 371

Eng

Scot

[1933] NI 114

NI

Irl

Eng

(1963) 110 CLR 40                                     Aus

[1881-1885] All ER Rep 35                         Eng

[1964] AC 465                                             Eng

[1970] AC 1004                                           Eng

[1970] OR 487                                             Can

[1961] 1 WLR 1400                                     Eng

(No C1-99-666 2000 WL 136076) Minn USA Ct App 2 February 2000

xvi

 

Kent v Griffiths

Eng

Kirby v Burke

[1944] IR 207

Irl

Le Lievre v Gould

[1893] 1 QB 491

Eng

Lowns v Woods

[1996] Aust Torts Reports 81-376 (NSW CA)

AusS

Lowry v Mayo Newhall Hospital

64 ALR 4th 1191 (Cal 1986)

USA

McDowell v Gillie

626 NW2d 666

USA

McLoughlin v O'Brian

Irl

Mid Density Developments Pty

(1993) 116 ALR 460

USA

Ltd v Rockdale Municipal

Council

Montgomery v National C & T

186 SC 167, 195 SE 247 (1937)

USA

Co.

Newton v Ellis

119 Eng Rep 424 (KB 1855)

ENG

O'Doherty v Whelan

High Court, 18 January 1993

Irl

O'Donovan v Cork County

[1967] IR 173

Irl

Council

OLL Ltd v Secretary of State for Transport

Osterlind v Hill

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1))

The People (Attorney General) v Dunleavy

Phillips v Durgan

Purtill v Athlone UDC

Roche v Peilow

Rohan Construction Ltd v Insurance Corporation of Ireland Ltd

Securities Trust Ltd v Hugh Moore & Alexander Ltd

[1997] 3 All ER 897

(1928) 263 Mass 73

[1961] AC 388

[1948] IR 95

[1991] ILRM 321

[1968] IR 205

[1986] ILRM 189

[1986] ILRM 373

[1964] IR 417

Eng

USA Eng

Irl

Irl Irl Irl Irl

Irl

xvii

 

Smith v Lears

Smith v Littlewoods Ltd

Stovin v Wise

Sullivan v Creed

Surtees v Royal Borough of Kingston upon Thames

Sutherland Shire Council v Heyman

Swenson v Waseca Mutual Insurance Co.

Turbeville v Mobile Light & R Co

Union Pacific Railway Company v Cappier

Velazquez v Jiminez

Ward v McMaster

Watt v Hertfordshire County Council

Woods v Lowns

Yania v Bigan

(1945) 70 CLR 256                                     Aus

[1987] AC 241                                             Eng

[1996] 3 All ER 801                                     Eng

[1904] 1 IR 488                                   Irl

[1992] PIQR P101                                       Eng

(1985) 157 CLR 424                                   Aus

653 NW2d 794 (Minn Ct App 2002)            USA

221 Ala 91, 127 So 519 (SC Alabama,       USA 1930)

72 P 281 (Kan. 1903)                                  USA

798 A2d 51, 64 (NJ 2000)

USA

[1988] IR 337

Irl

Eng

(1995) 36 NSWLR 344

Aus

(1959) 397 Pa 316

USA

xviii

 

INTRODUCTION

A               Request by the Attorney General

1.              On 30 January 2006, the Attorney General requested the

Commission, under section 4(2)(c) of the Law Reform Commission Act 1975, to make such recommendations as the Commission considered appropriate for reform of the law on the following matters:

•     Whether the law should be reformed, by statute, so as to impose a duty on citizens and members of the caring professions and members of an Garda Síochána or the Defence Forces (when not engaged in duties in the course of their employment) to intervene for the purposes of assisting an injured person or a person who is at risk of such an injury and the circumstances in which such a duty should arise and the standard of care imposed by virtue of such a duty.

•      Whether the law in relation to those who intervene to assist and help an injured person (Good Samaritans) should be altered in relation to the existence of a duty of care by such persons to third parties and/or the standard of care to be imposed on such persons towards third parties.

•      Whether the law in relation to the duty of care of voluntary rescuers should be altered, by statute, and if so the nature of such change in that duty and/or standard of care owed by voluntary rescuers to third parties.

•      Whether the duty of care and/or the standard of care of those providing voluntary services, for the benefit of society, should be altered by statute and, in particular, whether in what circumstances a duty of care should be owed by such persons to third parties and the standard of such care.

B               General background and consultation process

2.              The Attorney General‟s request arose against the immediate

background of a Private Members Bill, the Good Samaritan Bill 2005, which was debated in Dáil Éireann on 6 and 7 December 2005.1 The 2005 Bill proposed to

1          See Vol.611 Dáil Éireann Debates cols.1139-1165 (6 December 2005) and

Vol.611 Dáil Éireann Debates cols.1455-1483 (7 December 2005).

1

 

provide an exemption from civil liability for any injury caused by a person (other than health care professionals acting in the course of their employment) who (a) provided emergency first aid assistance to a person who is ill, injured or unconscious as a result of an accident or other emergency; (b) provided assistance at the immediate scene of the accident or emergency; and (c) had acted voluntarily and without reasonable expectation of compensation or reward for providing the services described. The 2005 Bill also proposed that this exemption would apply unless it was established that the injuries were caused by the gross negligence of the person.

3.              The 2005 Bill was presented with a view to providing a level of protection from civil liability for those who volunteer or otherwise intervene to assist injured persons, including where defibrillators are used by community and voluntary groups who act as first responders where cardiac arrest occurs. The debate on the 2005 Bill in Dáil Éireann also included references to similar Good Samaritan legislation enacted, for example, in the United States, Canada and Australia in recent years. Giving the Government‟s response to the 2005 Bill the Minister for Justice, Equality and Law Reform stated that the Government had decided to refer the legal issues raised to the Law Reform Commission.2

4.               In November 2007, the Commission published its Consultation Paper on the Civil Liability of Good Samaritans and Volunteers,3 which set out its provisional recommendations on the issues raised in the Attorney General‟s request. In May 2008, the Commission held a seminar on the Consultation Paper and is extremely grateful to the participants for their assistance in this respect. This Report sets out the Commission‟s final recommendations on the issues raised in the Attorney General‟s request, together with a draft Civil Liability (Good Samaritans and Volunteers) Bill intended to implement those recommendations.

C              Outline of this Report

5.              Chapter 1 sets out the background to and general policy setting against which the request of the Attorney General was received. In this regard, the Commission examines the particular issue of sudden cardiac death and the use of automated external defibrillators (AEDs), and the more general issue of volunteering and active citizenship. The chapter concludes by emphasising the importance generally of active citizenship and volunteerism.

6.              In Chapter 2 the Commission discusses the concept of a general legal duty to intervene to assist persons in danger. The chapter examines the

2          See Vol.611 Dáil Éireann Debates cols.1158-1159 (6 December 2005) and Vol.611 Dáil Éireann Debates col.1475 (7 December 2005), available at www.oireachtas.ie

3          LRC CP 47-2007, available at www.lawreform.ie. This is referred to as the Consultation Paper in the remainder of this Report. Specific references to paragraphs in the Consultation Paper are preceded by “LRC CP 47-2007.”

2

 

extent to which current law in Ireland recognises a duty to intervene in specific circumstances. It also contains a discussion of the position in other States where a duty to intervene exists. The chapter concludes by setting out the Commission‟s final recommendations on whether the law should include a positive duty to intervene in the context of rescue or voluntarism in general.

7.              Chapter 3 examines the current common law duty of care as applied to Good Samaritans, voluntary rescuers and voluntary service providers. The Commission explores the extent to which a duty of care is likely to arise depending on the category of person intervening and the type of intervention made. It also examines the issues raised in relation to the standard of care to be applied to Good Samaritans and volunteers. The Commission concludes that it is appropriate to set out this duty and standard of care in legislative form.

8.              Chapter 4 sets out the detail of the Commission‟s proposed legislation on the civil liability of Good Samaritans and volunteers, drawing on the content of comparable legislation enacted in other States. The Commission discusses the extent to which any proposed legislation in this State should differentiate between the liability of individuals as opposed to the liability of organised entities engaged in activities of benefit to the community.

9.              Chapter 5 is a summary of the Commission‟s recommendations.

10.            The Appendix contains a draft Civil Liability (Good Samaritans and Volunteers) Bill 2009 to give effect to the Commission‟s recommendations.

3

 

 

CHAPTER 1          BACKGROUND AND POLICY SETTING

A               Introduction

1.01           In this Chapter the Commission discusses the Attorney General‟s request and the background to it in a wider policy setting. In Part B, the Commission notes the main features of the Private Member‟s Bill, the Good Samaritan Bill 2005. In Part C, the Commission discusses a specific aspect of the wider policy setting, the prevalence of sudden cardiac death and the use of automated external defibrillators as a response. In Part D the Commission discusses the wider policy setting, the importance of volunteering and active citizenship in Ireland and internationally. In Part E, the Commission draws conclusions on the impact of this policy setting to its analysis of the Attorney General‟s request.

B               Good Samaritan Bill 2005

1.02          The Attorney General‟s request to consider the civil liability of Good Samaritans and volunteers arose following the publication of a Private Member‟s Bill, the Good Samaritan Bill 2005,1 and the debate on the Bill in Dáil Éireann in December 2005.2 The Long Title of the 2005 Bill stated that it proposed “to protect from liability, persons who act in good faith to provide assistance to a person who is ill or has been injured as a result of an accident or emergency and for that purpose to alter the position at common law.”

1.03          The Bill‟s Explanatory Memorandum stated that, if enacted, it would ensure that those who intervene to give assistance to others, and who offer this assistance in good faith, could not be penalised or held liable as a result of their intervention. Health care professionals acting in the course of their employment were exempted from the terms of the 2005 Bill.3 Furthermore, any other person

1          Bill No. 17 of 2005, available at www.oireachtas.ie

2          See Vol.611 Dáil Éireann Debates cols.1139-1165 (6 December 2005) and Vol.611 Dáil Éireann Debates cols.1455-1483 (7 December 2005), available at www.oireachtas.ie

3          Explanatory Memorandum to the Good Samaritan Bill 2005.

5

 

who may have had a “reasonable expectation of compensation or reward” were also excluded.

1.04          Section 2 of the 2005 Bill proposed to provide an exemption from civil liability for any injury caused as a result of negligence in acting or failing to act by a person (other than health care professionals acting in the course of their employment)4 who:

(i)              provided emergency first aid assistance to a person who was ill,

injured or unconscious as a result of an accident or other emergency;

(ii)             provided assistance at the immediate scene of the accident or

emergency; and

(iii)            had acted voluntarily and without reasonable expectation of

compensation or reward for providing the services described.

1.05          The 2005 Bill stated that the exemption would apply unless it was established that the injury was caused by the gross negligence of the person.

1.06          It is worth noting that the Good Samaritan Bill 2005 dealt solely with the question of whether individual Good Samaritans could be found liable for negligence arising out of an intervention. It did not consider issues such as the duty or standard of care pertaining to individuals, whether they are Good Samaritans or volunteers, or organisations providing assistance to a person in need of such assistance.

1.07          The purpose of the Good Samaritan Bill 2005 was to protect any person - other than a health care professional - acting in the course of his or her employment so long as that person had provided first aid assistance at the immediate scene of the accident or emergency voluntarily and without expectation of compensation or reward.5 Thus, to the extent that such activities must be of a medical nature and urgent or undertaken in the context of an emergency, while at the scene of the accident or emergency, the proposed scope of the 2005 Bill was limited. In addition, to the extent that first aid assistance is by nature usually reactive rather than pre-emptive, the 2005 Bill considered only those situations where the recipient of the assistance was already ill, injured or unconscious. Good Samaritans who might render different types of assistance including pre-emptive assistance and other types of

4          Section 2(2) of the 2005 Bill stated that a health care professional is acting in the course of employment if he or she is providing emergency health care services or first aid assistance to a person who is ill, injured or unconscious as a result of an accident or other emergency, having being summoned or called to provide services or assistances for payment or reward.

5          Good Samaritan Bill 2005, section 2(1)(a) to (c).

6

 

volunteers would not have been able to avail of the protections contained in the 2005 Bill. In the Consultation Paper, the Commission also pointed to problems that might arise with the use of the words “ill” and “injured” contained in section 2(1)(a) of the 2005 Bill.6 The Commission observed that it could not always be assumed that a person described as “ill” or “injured” would require emergency first aid assistance as opposed to other forms of assistance.

1.08          As was noted in the Consultation Paper,7 the 2005 Bill was presented with a view to providing a level of protection from civil liability for those who volunteer or otherwise intervene to assist injured persons, including where defibrillators are used by community and voluntary groups who act as first responders where cardiac arrest occurs. The debate on the 2005 Bill in Dáil Éireann also included references to similar Good Samaritan legislation enacted, for example, in the United States, Canada and Australia in recent years. Giving the Government‟s response to the 2005 Bill the Minister for Justice, Equality and Law Reform stated that the Government had decided to refer the legal issues raised to the Law Reform Commission.8    This was followed by the Attorney General‟s request to the Commission in 2006, which has already been set out in the Introduction to this Report. The Commission now turns to examine the wider policy setting against which that request, which concerns the civil liability of Good Samaritans and volunteers, should be considered. In Part C, the Commission discusses a specific aspect of the wider policy setting, the prevalence of sudden cardiac death and the use of automated external defibrillators as a response. In Part D the Commission discusses the wider policy setting, the importance of volunteering and active citizenship in Ireland and internationally.

C              The policy setting: (1) sudden cardiac death and defibrillators

1.09        In terms of the wider policy setting, the Dáil Éireann debate on the Good Samaritan Bill 2005 discussed in some depth that it was intended to provide a level of protection from civil liability for those who volunteer or otherwise intervene to assist injured persons, including where defibrillators are used by community and voluntary groups who act as first responders where cardiac arrest occurs. This reflects the increased reported incidence of sudden cardiac death syndrome in recent years, particularly among young people (notably those taking part in sports), and the resulting increased use of automated external defibrillators (AEDs) as a response to the problem.

6          LRC CP 47-2007 at paragraphs 1.26-1.29

7          LRC CP 47-200 at paragraph 3 of the introduction.

8          See Vol.611 Dáil Éireann Debates cols.1158-1159 (6 December 2005) and Vol.611 Dáil Éireann Debates col.1475 (7 December 2005), available at www.oireachtas.ie

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1.10          The 2006 Report of the National Task Force on Sudden Cardiac Death Syndrome, Reducing the Risk: A Strategic Approach,9 noted that the incidence of sudden cardiac death in Ireland is very high. The Report estimated that over 5,000 people die of sudden cardiac death in Ireland each year, many of them young people.10

1.11          The Report recommended a strategy to reduce the causes of sudden cardiac deaths. The Report emphasised the importance of timely responses to improving the survival rate of those succumbing to cardiac arrest and the incidental need for training in life support techniques. The Report referred to the “golden hour”, that sudden cardiac death most commonly occurs within one hour of the onset of symptoms. The Report noted that survival rates following cardiac arrest are directly related to the period of time that elapses before resuscitation and, in particular, defibrillation and that the chances of successful defibrillation decrease with each minute that passes.11

1.12          If a person who has suffered a sudden cardiac arrest is defibrillated within 5 minutes, survival rates are approximately 50%, and potentially higher with younger patients. If time to defibrillation is 10 minutes or more, virtually no one survives without cardiopulmonary resuscitation (CPR). This increases to between 10% and 20% if CPR is used. Therefore, a speedy and effective response is required if the chances of survival are to be increased. As a result, the 2006 Report recommended the roll out of a training programme for health care professionals, occupational first-aiders and members of the public in Basic Life Support (BLS) and in the operation of AEDs.12 Noting the importance of volunteer organisations, the 2006 Report stated that further consideration should be given to the role of voluntary organisations and the use of their ambulances particularly in rural communities in order to improve the chances of

survival.13

1.13          The 2006 Report therefore attached great importance to the need for a significant proportion of the population to be trained in the use of automated external defibrillators (AEDs). The Commission notes that training in AEDs has

9          Department of Health and Children, Reducing the Risk: A Strategic Approach (Report of the Task Force on Sudden Cardiac Death, 2006), available at www.dohc.ie.

10    Ibid, at 19.

11    Ibid.

12    Ibid, at 93-94.

13    Ibid, at 96.

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been incorporated into the 2008 FETAC-accredited occupational first aid training qualification.14

1.14          The 2006 Report also recognised that some organisations or communities who wished to purchase AEDs, and to develop subsequent training programmes, had expressed concern over potential civil liability concerning their use. The 2006 Report noted:15

“Ireland has no „Good Samaritan‟ law to protect members of the public who go to the aid of another person. Similarly there is no general legal requirement or obligation for a lay person to go to the aid of another. Although credible legal opinion has advised that the likelihood of successful litigation arising from a „Good Samaritan‟ act is remote,16 the Task Force recommends that the legal situation be reviewed to protect rescuers from any possible litigation.”

1.15          The Health Service Executive (HSE) has been involved in implementing the recommendations in the 2006 Report. In its 2008 Report, Continuing to Reduce the Risk: First Progress Report,17 the HSE noted that a great deal of progress had been made in improving first response to a cardiac event. This has included the launch of the HSE‟s Cardiac First Response Guide,18 which provides detailed guidance for local communities and groups who wish to establish a first response team, including the use of defibrillators.

14         See paragraph 2.53, below, discussing the Health and Safety Authority‟s 2008 Guidelines on First Aid at Places of Work, available at www.hsa.ie. See also Byrne, Safety, Health and Welfare at Work Law in Ireland, 2nd ed (Nifast, 2008), at 554-556.

15         Department of Health and Children, Reducing the Risk: A Strategic Approach (Report of the Task Force on Sudden Cardiac Death, 2006), at 104-105, available at www.dohc.ie.

16         See Craven, “Civil Liability and Pre-hospital Emergency Care” PHECC Voice (Newsletter of the Pre-Hospital Emergency Care Council) February 2004, p.5, available at www.phecit.ie. This is a Memorandum prepared in 2003 by Dr Ciaran Craven BL for the Pre-Hospital Emergency Care Council, which was also reproduced in: Health Service Executive, Cardiac First Response Guide (2008), Appendix B, available at www.hse.ie

17         Health Service Executive, Implementation of Sudden Cardiac Death (SCD) Task Force Report (2006) Recommendations, Continuing to Reduce the Risk: First Progress Report (HSE, 2008), available at www.hse.ie

18         Health Service Executive, Cardiac First Response Guide (2008), available at www.hse.ie

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Work had also been done on planning a structure for coordinating first response and improved resuscitation training around the country and a spatial analysis of ambulance provision had been carried out resulting in clarity on priority locations for development. The 2008 Report also noted that the Pre-Hospital Emergency Care Council (PHECC), the statutory body with responsibility for training in pre-hospital medical qualifications, had prepared a Guide to the preparation of a Cardiac First Response Report (CFR Report),19 which would inform the Out of Hospital Cardiac Arrest Register (OHCAR), instigated in 2007.

1.16          The HSE‟s 2008 Cardiac First Response Guide20 also reiterated the view in the 2006 Task Force Report that “one of the main stumbling blocks to communities purchasing AEDs and developing programmes has been concern over legal indemnity.” The 2008 Guide also noted that “Ireland has, as yet, no Good Samaritan Act but this is being addressed by the Law Reform Commission,” pointing out that the Commission had, at that time, published the Consultation Paper on the Civil Liability of Good Samaritans and Volunteers21 and was preparing this Report. Equally, the 2008 Guide reiterated the view expressed in the 2006 Task Force Report that legal opinion it had obtained in 2003 had concluded that “should a pre-hospital emergency care provider act in accordance wholly with their training status and not act in a grossly negligently fashion then it is unlikely that any litigious claim would be successful.”

1.17          The HSE‟s 2008 Guide also noted that, while concern over possible civil liability was a real stumbling block for some communities, the provision of insurance cover for any potential claims had alleviated this to some extent. The Guide noted that “[a] number of insurance companies now also offer insurance for trained first responders involved in first responder programmes.”22 In this respect, the Guide also pointed out that the Clinical Indemnity Scheme (CIS) under the auspices of the State Claims Agency covers trained members of the Emergency Medical Services (EMS) in their duty “and also indemnifies them for „Good Samaritan‟ acts when in an off-duty capacity.” The Guide pointed out that the CIS “does not apply to members of the public (including uniformed personnel, such as fire fighters and the Gardaí) who receive CPR training only.”

19         Pre-Hospital Emergency Care Council, Cardiac First Response Report (CFR Report) Completion Guide (2008), available at www.phecit.ie

20         Health Service Executive, Cardiac First Response Guide (2008), p.31, available at www.hse.ie

21         LRC CP 47-2007.

22         Health Service Executive, Cardiac First Response Guide (2008), p.31, available at www.hse.ie

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As to general practitioners (GPs), the Guide noted that the CIS advises GPs to seek their own cover under their medical malpractice policies.

1.18          The views expressed in the 2006 and 2008 Reports and in the HSE‟s 2008 Guide reflect the views and comments received by the Commission prior to the publication of the Consultation Paper and during the consultation period leading to this Report. In that respect, the Commission is aware that the potential risk of liability presents an obstacle to some community and voluntary groups who are involved in establishing first responder programmes, but that the Commission agrees that this is probably a remote risk and has not represented an insurmountable obstacle. Indeed, the Commission is also aware from its discussions that the presence of public sector indemnity provision - such as the Clinical Indemnity Scheme (CIS) under the auspices of the State Claims Agency - and arrangements for private insurance cover has greatly assisted in ensuring that there has, in reality, been fairly widespread development of first responder teams in the State.

D              Volunteering and Active Citizenship

1.19          The development of first responder teams - trained in the use of defibrillators - in response to sudden cardiac death provides a specific policy setting against which the Attorney General‟s request must be considered. The Commission is conscious that a wider policy setting should also be considered in this respect, the value of volunteering and active citizenship in the State.

1.20          The Commission recognises the importance of volunteering both in Ireland and internationally. Ireland has a long, rich and diverse history of voluntary work and there is a strong culture of volunteering among Irish citizens. Similarly, internationally, there is huge recognition of the role volunteering has to play in the fulfilment of international obligations. UN General Assembly Resolution 52/17 proclaimed 2001 the International Year of Volunteers. This resolution also underlines the value of volunteerism in many different fields such as those covered by the Millennium Development Goals. The UN General Assembly also recognised the responsibility of governments to develop strategies and programmes to support volunteering at a national level.23 In 2008, the European Union proposed the launch of an initiative to create more opportunities for younger people to volunteer across Europe. 24

23         UN General Assembly Document of 24th Special Session World Summit for Social Development and Beyond: Achieving Social Development for All in a Globalising World – UN General Assembly Resolution s-24/2, annex.

24         See http://ec.europa.eu/youth/youth-policies/doc30_en.htm

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1.21          The Irish Government‟s 2000 White Paper on Voluntary Activity25 defines volunteering as “the commitment of time and energy, for the benefit of society, local communities, individuals outside the immediate family, the environment and other causes.” The White Paper emphasised that “voluntary” in this context means activities undertaken without payment, except for reimbursement of out-of-pocket expenses.

1.22          The Commission notes that volunteering – and the voluntary sector – involves much more than a handful of individuals engaged in small activities in the State. Research carried out by the National College of Ireland indicates that 33% of the adult population volunteered in some capacity in 199926 and, based on this, the total amount of time given to voluntary work per year would be equivalent to approximately 96,450 full-time workers.27 The Special Olympics World Summer Games, held in Ireland in June 2003, involved the recruitment and training of around 30,000 volunteers in preparation for this event alone. The 2006 Census28 indicated that over 553,000 persons, representing 16.4% of the population aged 15 and over, were involved in voluntary activity. The 2007 Report of the Taskforce on Active Citizenship29 supported the Census indications that volunteering had not declined in the period of the Celtic Tiger economy, but that the pattern of participation might have involved relatively short activity-specific involvement, such as the Special Olympics.30 In early

25         Department of Social, Community and Family Affairs White Paper on a Framework for Supporting Voluntary Activity and for Developing the Relationship between the State and the Community and Voluntary Sector (2000), available at www.welfare.ie

26         Out of a total population of about 4 million, this indicates that approximately 1.3 million people volunteered.

See http://www.eu2004.ie/templates/standard.asp?sNavlocator=7,98,113.

27         “Reaching out: charitable giving and volunteering in the Republic of Ireland”, Ruddle, Helen & Mulvihill, 1999, National College of Ireland.

28         See Census 2006, Volume 11 – Disability, Carers and Voluntary Activities available at www.cso.ie

29         Report of the Taskforce on Active Citizenship (2007), available at www.activecitzen.ie

30         The Report noted that although most people thought volunteering was declining, when asked about their own organisation only one half said that it had become more difficult to recruit new volunteers.     The Survey of Civic Engagement commissioned by the Taskforce showed an apparent increase in both volunteering and community involvement in the four years since the last such survey had been conducted in Ireland.

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2009, a 102% increase in volunteers registering in Volunteer Centres across the country was reported, which was attributed to the economic downturn and the rising rates of unemployment affecting Ireland and most other countries in the

world.31

1.23          Volunteering and voluntary activity involve the provision of essential services in the State, and includes the provision of social care, childcare, care of older persons, health services, education, environmental, sport, cultural, advocacy, artistic and other activities. In that respect, volunteering constitutes a major pillar of Irish society, which requires high standards of management – and of funding. In recent years, Government support for the community and voluntary sector has been in excess of €5 billion per annum.32 This is in addition to the taxation arrangements concerning contributions to charitable organisations, many of which are engaged in volunteering activities.33

1.24          Given this importance, it is not surprising that the Government‟s 2000 White Paper aimed to clarify the relationship between the Government and the voluntary and community sector and examined how the Government could provide an enabling framework to help volunteer activities. The White Paper noted that:

“The Irish Constitution recognises the right to associate. Overall, however, there is an underdeveloped legal and policy framework in Ireland for the support of voluntary work and the contexts in which it takes place.”34

1.25          This commitment to support volunteer activity in Ireland was further strengthened by the establishment of the National Committee on Volunteering (NCV), which was given responsibility for the task of developing a long term strategy to promote and expand volunteering in Ireland.

1.26          In 2002, the NCV published Tipping the Balance: Report and Recommendations to Government on Supporting and Developing Volunteering in Ireland”,35 which analysed the voluntary sector in Ireland and made

31         See www.volunteer.ie/news_Increaseinvolunteers2009.htm

32         Speech by Mr John Curran T.D., Minister of State, for “Give it A Swirl Day,” the National Day of Volunteering, 25 September 2008, available at www.volunteer.ie

33         The Charities Act 2009 sets out the first comprehensive regulatory framework for the charity sector.

34         Ibid at 13.

35         Report of the National Committee on Volunteering, Tipping the Balance: Report and Recommendations to Government on Supporting and Developing Volunteering in Ireland (2002), available at www.volunteer.ie

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recommendations to the Government on how to support and develop volunteering in Ireland. The 2002 Report called for the development of a national policy on volunteering that would be integrated with other social policies. Protection of volunteers and financial support should be provided by the State, as well as active promotion of, and removal of barriers to, volunteering. While the Report commended the work of individual organisations in developing policies and procedures, it noted that the development of norms at a national level may be a more appropriate means of providing guidance to both volunteers and organisations involving volunteers.

1.27          These Reports recognised the importance of developing a clear policy framework on volunteering. Other important developments include the establishment of Volunteering Ireland, the National Volunteer Development Agency, which promotes volunteering in Ireland,36 and Volunteer Centres Ireland (VCI),37 the national umbrella organisation for volunteer centres. Both Volunteering Ireland and VCI are funded by the Department of Community, Rural and Gaeltacht Affairs to ensure that this advice and support would continue.

1.28          In 2005, the European Volunteering Centre (EVC) published a Country Report on the Legal Status of Volunteers in Ireland,38 in conjunction with the European-wide Association of Voluntary Service Organisations (AVSO). The 2005 Report observed that, while policies are in place to support the development of volunteerism, no volunteer-specific legislation exists in Ireland.     In particular, the Country Report remarked on the absence of legislative norms relating to the reimbursement of out-of-pocket expenses and the insurance of volunteers. The Report referred to the recommendation of Volunteering Ireland that volunteer organisations should draft policies stating, amongst other things, that volunteers are insured against risks of illness, accident and third party liability.39

36         See www.volunteeringireland.ie

37         See www.volunteer.ie. The website explains that volunteer centres act as „brokers‟ between individuals who wish to undertake voluntary activity and organisations that seek to involve volunteers. Their primary function is, therefore, to match individuals and groups interested in volunteering with appropriate volunteering opportunities and to offer advice and support to volunteers and organisations through a range of services.

38         Association of Voluntary Service Organisations & Centre Européen du Voluntariat Country Report on the Legal Status of Volunteers in Ireland 2005, available at www.cev.be/Legal%20Status%20Ireland%202005.pdf.

39         Ibid, at 5.

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1.29          The Government‟s ongoing commitment to the concept of volunteering, and its connection with active citizenship (which encompasses formal and non-formal, political, cultural, inter-personal and caring activities),40 was illustrated by the establishment in 2006 of the Taskforce on Active Citizenship. The 2007 Report of the Taskforce on Active Citizenship41 accepted that a wide range of initiatives were required to encourage active participation in community and society activities, and recommended the establishment of an Active Citizenship Office. On foot of this, the Active Citizenship Office was established in the Department of the Taoiseach and a Steering Group was established in 2008 to oversee implementation of the Taskforce‟s recommendations.42 Echoing the comments in the 2006 Report of the National Task Force on Sudden Cardiac Death Syndrome, Reducing the Risk: A Strategic Approach,43 the 2007 Report of the Taskforce on Active Citizenship noted that the increasing availability of insurance cover had overcome some obstacles to volunteering activity in what it described as an increasingly litigious society. However, the Taskforce also points out that there is little evidence of a decline in the quantity of voluntary activity. It also “welcome[d] the Law Reform Commission‟s current examination of a number of aspects of the legal duty of care and the associated standard of care imposed on those who provide voluntary services, and has made an input to its work.”44

1.30          The comments by the Taskforce on Active Citizenship were supported in the views expressed to the Commission by a number of organisations in the volunteering sector during the consultation process leading to this Report. It is clear that the wide availability of insurance cover has removed the most significant block to individual participation in organised volunteering activity in the State. Nonetheless, the potential for civil liability, which the Commission accepts is likely to be a relatively remote risk (and which the Commission discusses in detail in Chapter 3), remains a real worry for some potential volunteers. In that respect, voluntary organisations expressed the view

40         Taskforce on Active Citizenship, The Concept of Active Citizenship (2007), p.2, available at www.activecitizen.ie

41         Report of the Taskforce on Active Citizenship (2007), available at www.activecitzen.ie

42         See www.activecitizen.ie (homepage, accessed 7 May 2009).

43         Department of Health and Children, Reducing the Risk: A Strategic Approach (Report of the Task Force on Sudden Cardiac Death, 2006), available at www.dohc.ie, discussed at paragraphs 1.10ff, above.

44         Report of the Taskforce on Active Citizenship (2007), p.18, available at www.activecitzen.ie

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that the enactment of legislation setting out clearly the scope and extent of the civil liability of Good Samaritans and volunteers would have the value of clarifying the law for potential volunteers and voluntary organisations. It was also suggested that such legislation might have some implications on the level of insurance premiums payable by such bodies.

E               Conclusions

1.31           The Commission fully appreciates the policy of encouraging individuals to give assistance that is of benefit to society, whether as Good Samaritans or as volunteers in an organised setting. In this light, the Commission accepts that any recommendations it makes should, where possible, be consistent with supporting rather than discouraging volunteering generally as well as participation in additional activities of benefit to society.

1.32          At the same time, the Commission notes that there remains an important competing policy, namely that those who are injured through the carelessness of others are entitled to expect suitable recompense. It is clear to the Commission that this second policy objective has been recognised in the 2006 Report of the National Task Force on Sudden Cardiac Death Syndrome, Reducing the Risk: A Strategic Approach, and in the 2007 Report of the Taskforce on Active Citizenship, both of which support the availability of suitable indemnity or insurance arrangements. Indeed, the organisations with whom the Commission consulted in the preparation of this Report all accepted the importance of this policy objective. Whether the introduction of any legislation in this area will actually affect the cost of insurance remains outside the scope of the Attorney General‟s request to the Commission.

1.33          In the remainder of the Report, therefore, the Commission fully bears in mind this policy context while focusing on the specific legal issues on which the Attorney General requested the Commission‟s views.

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CHAPTER 2          A DUTY TO INTERVENE AND RESCUE

A              Introduction

2.01          In Chapter 1 the Commission discussed the background to and policy setting in which the Attorney General‟s request to examine the civil liability of Good Samaritans and volunteers arises. The Commission concluded that any recommendations it makes should, where possible, be consistent with supporting rather than discouraging volunteering generally as well as participation in additional activities of benefit to society. In this Chapter the Commission discusses one of the issues on which the Attorney General sought the Commission‟s views, whether the law should require individuals to intervene to assist an injured person or a person who is at risk of an injury. As noted in the Consultation Paper,1 the Commission approaches this matter in two parts: to what extent the law currently recognises a positive duty to intervene and, whether the law should be amended to recognise a general duty to intervene. The Attorney General‟s request is limited to an examination of this in terms of civil liability.2

2.02          In Part B the Commission discusses the absence of a general legal duty to intervene and rescue in Irish law. In Part C the Commission discusses the specific situations in which Irish law currently imposes a duty to rescue and intervene in specific situations. In Part D the Commission discusses whether a general duty to intervene and rescue should be imposed, including whether such a duty could or should be confined to “easy” rescue situations.

B              No general duty to intervene and rescue in Irish law

2.03          In this Part, the Commission discusses the absence of a general legal duty to intervene and rescue in Irish law. The Commission begins with a discussion of the moral dimension to this duty, derived from the biblical parable or story of the “Good Samaritan.” The Commission then notes that Irish law does not impose a general duty to intervene but goes on to describe the specific

1          LRC CP 47-2007 at paragraph 2.01.

2          For discussion of criminal liability for omissions and failure to rescue see Glanville Williams, Textbook of Criminal Law 2nd ed (London, Stevens, 1983), p.149.

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circumstances in which a duty to intervene and rescue have been imposed by decisions of the courts and in specific legislation.

(1)             The Good Samaritan and the moral duty to intervene

2.04          The concept of a person being under an obligation to rescue or care for another person, or in other words to volunteer to help a person who is in need, has its origins in the biblical parable of the Good Samaritan that one should love one‟s neighbour as he or she would love themselves.3 This parable sets out the religious and moral doctrine which teaches that in order to love “thy neighbour as thyself” one must show compassion towards all other people. The parable of the Good Samaritan, then, supports a moral obligation on all persons to rescue another person in need. One should feel morally compelled as a bystander who can swim, to dive into a river to save a drowning person. Similarly, persons who are medically qualified or trained in first aid should render treatment to someone in distress.

2.05          In the biblical telling of the parable of the Good Samaritan, in answering the lawyer‟s question of “who is my neighbour?” Jesus told the story of a man - presumed to be Jewish - who was travelling between Jerusalem and Jericho, who fell among thieves, who stripped and wounded him and departed, leaving him half dead. Both a priest and a Levite (who might be described as pillars of the Jewish community at that time) passed him by. But a man from Samaria (the original “Good Samaritan”), and who would at that time have been on unfriendly terms with the Jewish community, saw him and had compassion on him. He went to him and bound up his wounds and carried him to an inn and took care of him. On the following morning when he departed, he gave some money to the innkeeper, and asked him to take care of the injured man. Jesus stated that the neighbour was the person who showed mercy to the injured man and that we are morally obliged to do likewise. The Commission notes that the parable, in effect, therefore, places a moral demand on all persons to help a neighbour who is in need of help.4

3          The Bible, New Testament, Gospel of St Luke 10:25-37.

4          In New York in December 2007, a 20 year old Muslim Bangladeshi accountancy student, Hassan Askari, was hailed as a modern-day “Good Samaritan” when he came to the aid of three Jewish people who were attacked by a group of 10 men on a train. It appeared that the group of 10 men – presumed to be Christian – had been yelling “Merry Christmas” on the train and that the Jewish people wished them a “Happy Chanukah.” The group of 10 then violently attacked the three Jewish people and, at this stage, Mr Askari intervened to assist, allowing one of the people being attacked to pull the emergency cord and alert the police. Mr Askari was reported to have received “two black eyes and a sore nose - but no regrets.” He was subsequently conferred with awards by representatives of the

18

 

2.06          In determining whether the moral duty to intervene to assist another person in danger should be translated into a legal duty to rescue, courts in different countries have often referred to the biblical story of the “Good Samaritan.”5 Indeed, legislation to deal with the civil liability, if any, of those who intervene to assist others in danger is often given the title “Good Samaritan Act,” and this was used in the 2005 Private Members Bill that preceded the Attorney General‟s request to the Commission.6

(2)             The Good Samaritan and a general legal duty to intervene

2.07          Many moral principles can, of course, be translated into broadly comparable legal prohibitions so that, for example, the moral perspectives concerning killing and stealing largely translate into comparable legal prohibitions on homicide and theft. Equally, not all moral principles can be translated into legal principles. In that respect, the majority of common law States (the family of legal systems derived from the British legal system), including Ireland, do not impose a general legal duty to intervene, whether as a “Good Samaritan”, to rescue somebody who might be in trouble or to intervene as a volunteer of any kind. Common law States have, in general, limited the law to stating that, if the person decides to rescue or assist (to be a Good Samaritan or volunteer in that sense), the rescuer must do so with all due care and that, if he or she causes injury arising from carelessness (negligence), civil liability could be imposed in that context.7

2.08          By contrast, many civil law States (the family of legal systems derived from the Code-based systems of Continental Europe) and other States (for example, those based on Sharia law) have imposed positive legal duties to intervene to rescue. A positive duty to intervene is included in the legislative codes of Belgium, France, Germany, Greece, Italy, the Netherlands, Poland,

Jewish      community      and      by      the      mayor      of      New      York.      See

http://news.bbc.co.uk/2/hi/south_asia/7149916.stm. This individual story of assistance of those in danger is replicated many times in Ireland, many of which are publicly recognised through, for example, Rehab‟s “People of the Year” awards.

5          For example, Buch v Amory Manufacturing Co, 69 NH 257 (1897) (United States: New Hampshire Supreme Court) and Donoghue v Stevenson [1932] AC 562 (United Kingdom: House of Lords).

6          It is even notable that one of the proprietary brands of automated external defibrillators (AEDs) in regular use in Ireland is called the “Samaritan® Pad defibrillator.”

7          The duty of care that arises where the individual chooses to intervene or volunteer is discussed in Chapter 3, below.

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Russia, Switzerland and a number of countries of the Middle East.    For

example, the French Civil Code requires an individual to rescue another in situations where “he can give his assistance without risk for himself or other persons, either by his personal action or by prompting the rescue.”

(3)             The reluctance of common law States to impose a general legal

duty to intervene

2.09          The Commission turns now to discuss in detail the reluctance of the common law States (including Ireland), in contrast to civil law States to imposing a general duty to intervene and rescue.8 McMahon and Binchy note that the common law has historically been completely opposed to the imposition of affirmative duties and, in particular, to the imposition of a positive duty to intervene to protect or to come to the aid of another in peril.9 Similarly, it has been pointed out that “the common law, first for historical reasons and later on philosophical grounds, has taken a hostile view towards imposing tortious liability for pure omissions”.10 The Commission agrees with the view expressed in a Canadian case that the position that there is no general legal duty to intervene is “deeply rooted in the common law”.11

2.10          An example of this traditional reluctance to impose a general duty can be seen in the 19th century English decision Gantret v Egerton.12 Here the defendants owned land, which was intersected by a canal, cuttings and bridges leading to “certain docks of the defendants.”13 Mr. Gantret, who was lawfully

8          For a discussion of the position in civil law jurisdictions see LRC CP 47-2007 at paragraphs 2.17 – 2.24. See also McMahon and Binchy Irish Law of Torts 3rd ed (Butterworths, 2000) at 169, who cite the following: Anon, “Failure to Rescue: A Comparative Study” (1952) 52 Colum LR 631; Dawson „Negotiorum Gestio: The Altruistic Intermeddler‟ (1961) 74 Harv LR 1073; Ratcliffe (ed), The Good Samaritan and the Law (Chicago: Anchor Books, 1966); and von Bar, The Common European Law of Torts (Oxford University Press, 2000), Vol 2, pp. 208-232. The Commission has also had the benefit of the analysis in Kortmann, Altruism in Private Law (Oxford University Press, 2005), chapter 4.

9          See McMahon and Binchy Irish Law of Torts (3rd ed Butterworths 2000) at 169.

10         Markesinis “Negligence, Nuisance and Affirmative Duties of Action” (1989) 105 LQR 104 at 104.

11         Horsley v MacLaren [1970] O.R. 487 at 499 (Ont C.A.).

12         (1867) 16 LT 17, reported as Gautret v Egerton (1867) LR 2 CP 371. The case is cited in Kortmann, Altruism in Private Law (Oxford University Press, 2005), p.53.

13         Gantret v. Egerton (1867) 16 LT 17 at 17, cited in Kortmann, Altruism in Private Law (Oxford University Press, 2005), p.53.

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passing over and using this land and these bridges, fell into one of the cuttings and drowned.     His wife claimed that the defendants had wrongfully and

improperly kept and maintained their land, canal, cuttings and bridges. She claimed that the defendants had allowed them to continue to be in a condition that rendered them unsafe for persons lawfully passing along. The plaintiff argued that the defendants would have to prove that they did not owe a duty of care towards the plaintiff. Willes J stated, however, that “[t]here is no duty to do anything, but there is a duty to abstain from doing anything that would injure.”14 Kortmann notes that, in another reported version of the case in the Law Reports, Willes J is recorded as also stating that “[n]o action will lie against a spiteful man who, seeing another running into a position of danger, merely omits the warning.”15 As the plaintiff‟s declaration did not reveal the breach of a specific affirmative duty, Willes J held that the plaintiff had no cause of action.16

2.11          The courts also explicitly noted their hesitance to transform moral duties into legal duties. In 1903, in Union Pacific Railway. Co. v Cappier, the Supreme Court of Kansas stated:

“For withholding relief from the suffering, for failure to respond to the calls of worthy charity, or for faltering in the bestowment of brotherly love on the unfortunate, penalties are found not in the laws of men, but in that higher law...”17

2.12          It remains the case in the early 21st century that, in the majority of common law States, there is no general legal duty to go to the aid of another person who is in danger.18 McMahon and Binchy note that this appears to extend even to situations where the injured person‟s life might depend on intervention and where to give assistance would involve no danger or real

14         Gantret v Egerton (1867) 16 LT 17 at 18. As Kortmann notes, p.53, this quote does not appear in the report of the case, under the name Gautret v Egerton, in (1867) LR 2 CP 371.

15         Gautret v Egerton (1867) LR 2 CP 371 at 375. Conversely, as Kortmann also notes, p.53, this quote does not appear in the report of the case, under the name Gantret v Egerton, in (1867) 16 LT 17.

16         Kortmann Altruism in Private Law (Oxford University Press 2005), p.53.

17         6 Kan 649, 72 Pac. 281, 282 (1903). See also section 312 of the American Law Institute‟s Restatement (Second) of Torts: “The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.”

18         See McMahon and Binchy Irish Law of Torts 3rd ed (Butterworths 2000) at 169, in particular the references in footnote 3.

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inconvenience to the would-be-rescuer. They refer to examples of cases where doctors have passed road accidents without stopping to help, even though the assistance of a doctor may have been urgently required19 and where adults have let toddlers drown in shallow waters without making an effort to help them.20 McMahon and Binchy note, however, that where the adult is also the parent of a child, a duty to rescue arises and the Commission discusses this below in the context of other specific examples of a legal duty to rescue.

2.13          Smith and Burns note that the courts have established that “there is a basic difference between doing something and merely letting something happen”.21 It would therefore appear that no matter how cold-blooded and repulsive it would be to stand by idly and watch the person drown there are no legal repercussions for such immoral conduct.

2.14          This position has not, however, always been certain and since the early development of the legal concept of negligence (in essence, a duty of care, a failure in the duty of care and an injury caused by this failure) it was understood to cover both acts (feasance) and omissions (nonfeasance). In Blyth v Birmingham Waterworks Company,22 Alderson B defined negligence as follows:

“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”.23

2.15          On the face of it, this definition did not indicate that there was any difference in the law‟s approach to acts (feasance) and omissions (nonfeasance) and that both types of behaviour were measured against the standard of the reasonable man. However, as Pollock pointed out,24 Alderson B‟s definition must have been based on the presumption that the party whose conduct was in question was already under a „duty of taking care‟. It was at this

19         Smith v Rae 46 OLR 518 (CA, 1919); Hurley v Eddingfield (1901) 156 Ind 416, 59 NE 1058, cited in McMahon and Binchy at p.170.

20         Osterlind v Hill (1928) 263 Mass 73, 160 NE 301; Yania v Bigan (1959) 397 Pa 316, 155 A 2d 343, cited in McMahon and Binchy at p.170.

21         Smith and Burns, „Donoghue v Stevenson - The Not so Golden Anniversary‟, (1983) 46 MLR 147, at 154.

22         (1856) 11 Ex. 781.

23         (1856) 11 Ex. 781 at 784.

24         Pollock, The Law of Torts (1887), p.355, cited in Kortmann, Altruism in Private Law (Oxford University Press, 2005) at 52.

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duty‟ stage of the trial that the judicial approach in cases of omissions (nonfeasance) differed from cases of acts (feasance).    For acts and their

results, Pollock explained, the actor was generally held answerable. For mere omission he was not, unless he was under some specific duty.25

2.16          In the UK decision Donoghue v Stevenson,26 in which a general legal duty of care in negligence was developed, the leading opinion delivered in the case by Lord Atkin drew directly on the biblical parable of the Good Samaritan. For this reason, the duty of care developed in the case is commonly known as the “neighbour principle.” The duty of care developed in Donoghue v Stevenson has been applied many times in Irish courts27 and has acted as a “general road sign” for the development of this area of civil liability.28 The Commission notes two aspects of Lord Atkin‟s opinion for the purpose of this Report. First, he discussed the connection between moral principles and legal principles. Second, he referred to omissions in setting out the legal duty of care of a manufacturer (the defendant) whose defective product (ginger beer) caused injury (gastroenteritis) to a consumer (the plaintiff).

2.17          As to the connection between law and morality, Lord Atkin pointed out in Donoghue v Stevenson that there are many legal principles which have a moral basis but that it was not possible to impose legal sanctions for failing to meet private moral principles to which others might subscribe. He stated:

“The liability for negligence, whether you style it such or treat it as in other systems as a species of „culpa‟, is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay.    But acts or omissions which any moral code would

censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their

remedy”.29

25         Kortmann Altruism on Private Law (Oxford University Press, 2005) at 53 also refers to Bulman v Furness Railway Company (1875) 32 LT 430 at 432, where a distinction is made between „active‟ and „passive‟ negligence, and Piggott, Principles of the Law of Torts (1885), p.208, who distinguishes „positive‟ and „negative‟ duties.

26         [1932] AC 562.

27         See McMahon and Binchy Irish Law of Torts 3rd ed (Butterworths, 2000), p. 118, fn20.

28         McMahon and Binchy, p. 119.

29         [1932] AC 562 at 580.

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2.18          Lord Atkin then went on to explain that civil liability in negligence might specify that one had a duty of care to a “neighbour” but that the “neighbour” of whom he spoke is a more restricted category than the neighbour referred to in the Christian parable of the Good Samaritan. Lord Atkin explained this distinction in the following passage, which has been cited many times since:

“The rule that you are to love your neighbour becomes in law: You must not injure your neighbour, and the lawyer‟s question: Who is my neighbour? receives a restricted reply. 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? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”30

2.19          There is little doubt that Lord Atkin did not intend the legal rule of civil liability in negligence to equate to the moral rule set out in the biblical parable of the Good Samaritan, though equally it can be said that the legal rule clearly contains elements derived from moral principle.31 The moral principle that we are to love our neighbour becomes in law the duty not to injure our neighbour, and the scope of “neighbour” also appears to be less extensive than the biblical concept, which appear to be potentially global in scope.

2.20          Given that Lord Atkin drew this distinction between moral principles and legal duties, and that he specifically narrowed the scope of the concept of “neighbour” in framing the legal duty of care, it could be concluded that individuals have no legal duty to intervene – to act as a Good Samaritan or, indeed, as a volunteer.

2.21          There is one obstacle to this conclusion, the inclusion by Lord Atkin of the word “omissions” twice in this passage setting out the duty of care. Later judicial comments on this part of Lord Atkin‟s opinion take the view that the use of “omissions” is either too broad or that it must be seen as being limited to situations where a person who has already taken some active step – such as manufacturing a product, and who thus has a duty to be careful – omits to do something which lead to them to injuring the “neighbour.” In that respect, it has been said that the neighbour principle was never intended to cover „pure‟ omissions.32 In the 1970 UK House of Lords decision Home Office v Dorset

30         [1932] AC 562 at 580 (emphasis added).

31         See Byrne and Binchy, Annual Review of Irish Law 2007 (Round Hall, 2008), p.391.

32         Smith and Burns, „Donoghue v. Stevenson - The Not So Golden Anniversary‟ (1983) 46 MLR 147 at 155-156 suggest that the neighbor principle was never

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Yacht Co. Ltd.33 Lord Diplock stated clearly that omissions give rise to no legal liability:

“The very parable of the Good Samaritan which was evoked by Lord Atkin in Donoghue v Stevenson illustrates, in the conduct of the priest and of the Levite who passed by on the other side, an omission which was likely to have as its reasonable and probable consequence damage to the health of the victim of the thieves, but for which the priest and the Levite would have incurred no civil liability in English law.34

2.22          This approach was followed in the 1987 House of Lords decision Smith v Littlewoods Ltd,35 in which Lord Goff stated:

“Why does the law not recognise a general duty of care to prevent others from suffering loss or damage caused by the deliberate wrongdoing of third parties? The fundamental reason is that the common law does not impose liability for what are called pure

omissions.”36

2.23          In the 1996 decision Stovin v Wise,37 the UK House of Lords again confirmed this approach. Lord Nicholls noted:

“The recognised legal position is that the bystander does not owe the drowning child or the heedless pedestrian a duty to take steps to save him. Something more is required than being a bystander. There must be some additional reason why it is fair and reasonable that one person should be regarded as his brother‟s keeper and have legal obligations in that regard. When this additional reason exists, there is said to be sufficient proximity. 38

2.24          In conclusion, the Commission reiterates that there is a long-standing reluctance in common law States, including Ireland, to impose a general duty to

intended to cover „pure‟ omissions. Kortmann Altruism on Private Law (Oxford University Press, 2005) notes, of course, that Lord Atkin drew directly on the biblical parable of the Good Samaritan, itself unquestionably a case of „pure‟ omissions.

33         [1970] AC 1004.

34         [1970] AC 1004 at 1060.

35         [1987] AC 241.

36         [1987] AC 241 at 271.

37         [1996] AC 923.

38         [1996] 3 All ER 801 at 806.

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intervene and rescue.39 This has been supported by the comments made by many courts since the decision in Donoghue v Stevenson, in particular through the emphasis on the requirement of proximity. The Commission notes in this respect that the Irish Supreme Court has affirmed, in cases such as Glencar Exploration plc v Mayo County Council,40 that the duty of care in negligence in Irish law is, equally, limited by the requirement that there be proximity between the parties, in other words, that there is a sufficiently close relationship between the parties that it would be reasonably foreseeable that the careless person‟s actions (or inactions) would be likely to cause injury to the “neighbour”. In that respect also, if mere moral wrongdoing was all that was required, the proximity test would not be required and liability could be imposed on the wrongdoer in respect of persons who were in no way connected to the wrongdoer. It is thus clear that there is no general legal duty to intervene and rescue.

C              A duty to intervene and rescue in Irish law in specific instances

2.25          While there is currently no general duty to intervene and rescue in Irish law, a number of specific instances to do so have been established both in common law (judge made law) and legislation.

(1)             Relationships of dependency

2.26          A clear example of where the law recognises a duty to intervene and rescue is that of the parent and child. The basis for this is that the law recognises a special dependency, allied to the creation of a duty arising from the fact of being a parent. A similar rationale lies behind the recognition of a specific duty to intervene in the following relationships: occupier of land and visitor;41 transport carrier and passenger; hotel proprietor and guest; and prison authorities and prisoner.42

2.27          It has been suggested that the duty to protect another in a special relationship arises only where the relationship exists and the harm develops in the course of that relationship.43 In the absence of a special relationship or the

39         See paragraph 2.09, above.

40         [2002] 1 IR 84.

41         Occupiers Liability Act 1995, replacing similar common law rules.

42         Nowlin “Don‟t just stand there: Help me!” (2003-2004) 30 Wm Mitchell L Rev 1001 at 1004-1005; Kortmann Altruism in Private Law (Oxford University Press 2005) at 68-69. See also Newnham “To assist or not to assist: The Legal Liability of Midwives acting as Good Samaritans” (2006) 19 Women and Birth 61 at 61.

43         Nowlin “Don‟t just stand there: Help me!” (2003-2004) 30 Wm Mitchell L Rev 1001 at 1004-1005

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termination of an existing special relationship, a party is under no duty to protect or aid the other. Thus, a transport carrier would owe no duty to an individual who has left the vehicle and ceased to be a passenger and a hotel proprietor would owe no duty to a guest who is injured or endangered while he or she is away from the hotel premises.

2.28          Other commentators have also supported this view, noting that the position at common law is such that “except when the person endangered and the potential rescuer are linked in a special relationship, there is no such duty [to intervene]”.44 The Commission agrees that it is more likely that liability for omissions (nonfeasance) would be imposed where a special relationship exists between the parties. This is particularly so where the relationship may be described as one of dependency, such as between a parent and a child, an employer and an employee, a shopkeeper and a customer, spouses, and a physician and a patient.45     This “special relationship” argument has been employed to deny that parties are really “strangers”. In this respect, Gregory notes:

“For it is clear at common law that nobody has to lift a finger… to help a stranger in peril or distress. I say “stranger” because there are relationships which require people to help others or avert danger toward them.”46

2.29          The Commission has already noted that it is generally accepted that the parent and child relationship may give rise to a duty to protect one‟s children.47 Furthermore, a special relationship of this type may also give rise to

44         Weinrib “The Case for a Duty to Rescue” (1980) 90 Yale LJ 247, quoting Prosser The Law of Torts § 56 at 338-43 (4th ed. 1971) (special relationships include husband-wife,      shipmaster-crew,      proprietor-customer,      carrier-passenger, educator-pupil, and employer-employee).

45         Weinrib     notes     the     relationships     of     landlord/trespasser     and     boat operator/passenger have given rise to duties. See Weinrib “The Case for a Duty to Rescue” (1980) 90 Yale LJ 247 at 248.

46         Gregory “The Good Samaritan and the Bad: The Anglo-American Law” in Ratcliffe (ed) The Good Samaritan and the Law (Chicago: Anchor Books, 1966) at 24.

47         McMahon and Binchy Law of Torts (3rd ed Butterworths 2000) at 170, fn6. In Surtees v Royal Borough of Kingston upon Thames [1992] PIQR 101 at 111, it was held that a foster parent owed a duty to her foster child.

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a duty to control the conduct of others. As was stated in the Australian case Smith v Lears:48

“… it is incumbent upon a parent who maintains control over a young child to take reasonable care to exercise that control as to avoid conduct on his part, exposing the person or property of others to unreasonable danger.”

2.30          A school may be liable for releasing students before it is expected to close,49 or, more generally, for failing to take reasonable care in ensuring the safety each student‟s person and property.50     Likewise, an employer is responsible for ensuring safety and health in the workplace and looking after an employee who becomes injured or ill in the workplace.51 In the United Kingdom, it has been held that prison authorities owe a common law duty to provide medical care to prisoners.52

(2)             Creation of risk and duty to minimise risk

2.31          If a person creates a situation or risk of danger, however blamelessly, the law requires him or her to prevent the danger from culminating in harm.53 In such circumstances the courts will usually classify the case as one of act (feasance) as opposed to omission (nonfeasance). A pertinent example of this relates to the situation where a car driver fails to brake and injures a pedestrian. Such a failure will be regarded by the courts in most cases as active conduct or as Fleming explains it, “the element that makes his active conduct – driving – negligent”.54 This allows the courts to impose liability without having to consider the more difficult issue of liability for nonfeasance.

2.32          However, in the English case Johnson v Rea55 the defendants were found liable for their failure to clean a floor on which slippery material had fallen, and the plaintiff as a result fell and suffered injury. The court stated that:

“if any person creates a danger, it his duty to do something more than to warn people coming on to the premises or coming within the

48         (1945) 70 CLR 256 at 262.

49         Barnes v Hampshire County Council [1969] 1 WLR 1563.

50         See Kortmann Altruism in Private Law (Oxford University Press, 2005).

51         See the discussion of safety and health at work, paragraphs 2.50ff, below.

52         Knight v Home Office [1990] 2 All ER 237 at 243.

53         See Kortmann, Altruism in Private Law (Oxford University Press, 2005), at 55-58.

54         Fleming The Law of Torts (9th edn 1998) p.163.

55         [1961] 1 WLR 1400.

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ambit of the danger that it exists. He must take reasonable steps, if such steps can be taken, to obviate the danger to people likely to encounter it.”56

2.33          The Commission notes that in Union Pacific Railway Co. v Cappier57 the Supreme Court of Kansas refused to impose liability on a railway company for failing to render aid to an injured trespasser.58 However, during the 20th century, this ruling and similar rulings came under strong criticism.59    The Commission notes that it is now generally recognised that a duty to act arises where the defendant‟s prior conduct, though blameless, has caused an injury.60 In such cases the defendant is not merely one of a large number of possible people who can intervene but an easily identifiable party. In addition, the Commission notes that there is a stronger causal connection between the defendant‟s actions and the harm which has occurred than in other cases of nonfeasance.

(3)             Professional rescuers

2.34           In the Consultation Paper, the Commission pointed out that for those professional rescuers governed by statute, there is a distinction between a statutory power of discretion and a statutory duty.61 The Commission noted that a duty to intervene will not usually arise in the case of a statutory power of discretion, while a duty may be owed to the public at large rather than to a particular individual in the case of a statutory duty.

2.35          Where an intervention occurs in an accident or emergency situation, the Commission notes that the rescue body is not generally held to have

56         [1961] 1 WLR 1400 at 1405. See also the US case Montgomery v National C. & T. Co 195 SE 247 (1937), in which it was held that two truck drivers whose trucks had stalled were liable for an accident resulting from their failure to post a warning: cited in Gregory “The Good Samaritan and the Bad: The Anglo-American Law” in Ratcliffe (ed). The Good Samaritan and the Law (Chicago: Anchor Books, 1966), at 27.

57         66 Kan. 649, 72 Pac. 281 (Sup. Ct. of Kansas, 1903).

58         See also Turbeville v Mobile Light & R. Co. 221 Ala. 91, 127 So. 519 at 521 (Supreme Court of Alabama, 1930), with further references.

59         Gregory “The Good Samaritan and the Bad” in Ratcliffe, (ed.) The Good Samaritan and the Law (Chicago: Anchor Books, 1966) at 26-27.

60         See Honoré “Are Omissions Less Culpable?” in Cane and Stapleton Essays for Patrick Atiyah (1991) at.43-45.

61         LRC CP 47-2007 at paragraph 2.27. See McMahon and Binchy Law of Torts (3rd ed Butterworths 2000) at 534.

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voluntarily assumed responsibility for the rescue. Therefore, even where the rescue is performed carelessly or negligently, the body will not be held liable. In this regard, the Commission notes that a number of cases in the 1990s in the United Kingdom held that certain emergency services were not duty bound to go to the aid of persons in peril, for example, the fire services,62 the police63 and the coastguard.64 In Capital and Counties plc v Hampshire County Council65, for instance, it was held that by taking control of the operations at the scene of a fire, the senior fire officer was not held to have voluntarily assumed responsibility, regardless of whether there was reliance on the fire service on the part of the owner. As a result, no liability attached to the fire service unless they made the situation worse than it already was. This can be contrasted with the decision in Barnett v Chelsea and Kensington Hospital Management Committee,66 where it was held that a doctor-patient relationship was effectively created when a person, who was ill, managed to present himself at an open hospital accident and emergency unit. He was, therefore, entitled to reasonably careful treatment.

2.36          The Commission notes that the position in Scotland appears to be different. In one case, it was held that fire services, which have been found to have been negligent, do not enjoy immunity from liability.67 In another case, the police force was found liable when it assumed responsibility to warn motorists of a collapsed bridge and abandoned the task before the risk was alleviated.68

2.37          In Kent v Griffiths,69 which involved consideration of whether there was a duty on an ambulance service when summoned to an emergency, the English Court of Appeal held that an unreasonably delayed response could amount to actionable negligence, and in that case, the defendants were held liable for damages that would not have occurred but for the delay. Delivering the leading judgment in the case, Lord Woolf MR equated the ambulance services with hospitals and other health service providers who do owe duties of care. It was held that proximity was established as soon as the GP had phoned

62         Capital and Counties plc v Hampshire County Council [1997] Q.B. 1004.

63         Alexandrou v Oxford [1993] 4 All ER 328.

64         OLL Ltd. v Secretary of State for Transport [1997] 3 All E.R. 897.

65         [1997] Q.B. 1004 at 1035.

66          [1969] Q.B. 428.

67         Duff v Highlands and Island Fire Board [1995] S.L.T. 1362.

68         Gibson v Chief Constable of Strathclyde 1999 S.C. 420.

69          [2001] Q.B. 36.

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the emergency services, giving the ambulance services notice of the emergency status of the call.

2.38          The Commission acknowledges that the reasons set out for the no-duty rule are unconvincing when applied to certain professional and equipped emergency and rescue services such as health services and ambulance services.70 Such services are paid from public funds to save persons in difficult circumstances.    Thus, they are distinct from altruists who happen upon a situation unexpectedly and without adequate resources. In this regard, it has been convincingly asserted that:

“[A]rguably the sacrifice of individual liberty, implicit in affirmative duties on private individuals, has no counterpart in the case of public authorities specifically entrusted with powers and resources for the sake of public health and safety….”71

2.39          Until recently the position pertaining to the emergency services seemed to apply to healthcare professionals as well. With regard to the two categories, it appeared that there was no obligation to provide emergency medical care unless the person seeking medical attention was already a patient of the practitioner in question: “A doctor may flout his Hippocratic Oath and deny aid to a stranger.” 72

2.40          The decision of the New South Wales Court of Appeal in Lowns v Woods73 appears to mark a departure from this position. In that case, the Australian court found a doctor liable in negligence for refusing to attend and treat a boy who was having an epileptic fit, even though there was no pre-existing doctor-patient relationship. The Court found that, in the particular circumstances of the case, there was “physical”, “circumstantial” and “causal” proximity which justified the imposition of a duty on the doctor and the doctor breached this duty by refusing to attend. Dr. Lowns was nearby, had the

70         Williams “Litigation against English NHS Ambulance Services and the Rule in Kent v Griffiths” (2007) 15 Med Law Rev 153

71         Fleming The Law of Torts 8th ed (Law Book Company Ltd. 1992) at 211 fn. 485.

72         Ibid at 147. In the Irish case O’Doherty v Whelan, High Court, 18 January 1993 (discussed in McMahon and Binchy, Irish Law of Torts (3rd ed Butterworths 2000), at 371) O‟Hanlon J held that a doctor has a duty to make a visit to the home of a person who was already their patient.

73         [1996] Aust. Torts Reports 81-376 (NSW C.A.).

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competence and ability to treat the child and had no other commitments at the particular time. 74

2.41          The Commission notes, however, that no general duty to assist appears to have been created in Lowns v Woods. The Commission considers that the comments of the judge at the original trial, reported as Woods v Lowns, are of interest.75 The judge explained negligence and foreseeability in terms of assisting strangers in an emergency as follows:

“In general terms, the common law does not impose a duty to assist a person in peril even when it is foreseeable that the consequence of a failure to assist will be the injury or death of the person imperilled… It has been held in other common law jurisdictions that a doctor is under no duty to attend upon a person who is sick, even in emergency, if that person is one to whom the doctor has not and never has been in a professional relationship of doctor and patient … Although there is no Australian authority in which the general proposition has been specifically applied in respect of a medical practitioner the general principle is clear, and there is certainly no Australian case in which a doctor has been held liable for damages because of a failure to attend upon and treat someone who was not already his patient.”

2.42          Furthermore, Crowley-Smith suggests that the duty in Lowns v Woods is restricted to doctors only, by virtue of the specific provisions in the NSW Medical Practitioners Act 1938 (since replaced) and the specific facts of the case.76 The decision of the Court of Appeal in the case does not, according to Abadee, “do violence to the general principle that a medical practitioner is under no legal duty to attend upon and treat someone who was not already his or her patient.” 77 The finding was based on the particular circumstances of the case which established a duty of care by the defendant to the plaintiff.

2.43          In 1997, a year after the Australian decision, the English Court of Appeal, in Capital and Counties plc v Hampshire County Council,78 and without

74         Cf Egedebo v. Windermere District Hospital Association (1993) 78 BCLR. (2d) 63 where a Canadian off-duty doctor was held liable when he failed to arrange treatment.

75         [1995] 36 NSWLR 344 at 354.

76         Crowley-Smith “The Duty to Rescue unveiled a Need to indemnify the Good Samaritan Health Care Professionals in Australia? (1997) 4 J Law Med 352

77         Abadee “A Medical Duty to Attend?” (1997) 3 J Law Med 306 at 308.

78         Capital and Counties plc v Hampshire County Council [1997] QB 1004, 1035.

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referring to Lowns v Woods reasserted the view that mere physical proximity between a doctor and a sick person, of itself, does not creates a duty to treat. On this view, doctors who happen upon road accidents are not bound to help and, if they do stop, can be liable only if they make the casualty‟s condition worse. Williams notes that this denial of a patient-status (and the consequent “worsening” rule) probably results from a desire to encourage rescues and to protect Samaritans who inadvertently botch them.79 Williams argues, however, that the risk of facing a writ is more theoretical than real. If an action were to be brought, it is likely that the courts would be sensitive to the fact that the treatment had been provided in “battle conditions” and would, thus, be reluctant to hold that there had been a breach of the duty of care.80

2.44          In this regard, the Commission acknowledges that the specific setting, including any relevant statutory duties, have played a significant role in determining whether any liability arises in these kind of cases. As has been pointed out, certain statutory functions are essential for the effective functioning of society. Therefore, it is reasonable for society to insist that those functions be discharged properly, under sanction of damages where this is appropriate.81

(4)             Road traffic accidents

2.45          The Commission pointed out in the Consultation Paper that Irish law does not impose a duty to intervene in situations involving road traffic accidents.82 This may be contrasted with the approach taken in other common law jurisdictions such as the United States, where many States impose a duty on drivers to assist persons involved in road traffic accidents. Similarly, in Canada the majority of Provinces have enacted legislation requiring a driver involved in a road traffic accident to render assistance to those who are injured in the accident.

2.46          The closest to such as duty in Irish law is the obligation, under section 106 of the Road Traffic Act 1961, to report a road traffic accident involving personal injury or injury to property to the Garda Síochána.83 Section 106(1)(d) of the 1961 Act84 provides that, where injury is caused to a person or

79         Williams, “Medical Samaritans: Is There a Duty to Treat?” (2001) 21 Oxford Journal of Legal Studies 393

80         Williams, “Medical Samaritans: Is There a Duty to Treat?” (2001) 21 Oxford Journal of Legal Studies 393

81         McMahon and Binchy Law of Torts (3rd ed Butterworths 2000) at 534.

82         LRC CP 47-2007 at paragraph 2.30.

83         See Pierse Road Traffic Law 3rd ed (First Law, 2008).

84         As amended by the Road Traffic Act 1986.

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property in a public place and a vehicle is involved in the occurrence of the injury (whether or not it is the cause):

“the driver of the vehicle, or, if he is killed or incapacitated, the person then in charge of the vehicle shall report the occurrence as soon as possible to a member of the Garda Síochána and, if necessary, shall go for that purpose to the nearest convenient Garda Síochána station and also shall give on demand the appropriate information to the member.”

2.47          It has been held that this duty means remaining at the scene of an accident long enough to allow information to be noted.85 The report must be made officially to a member of the Garda Síochána.86 Where the driver stops and gives information to an entitled person on the scene, then, except in the case where there is an injured person, there is no duty to report to a member of the Garda Síochána. Where there is a delay in reporting and no proper explanation is given, the defendant should be convicted.87 The duty to report arises where there is a connection between the presence of the vehicle and the

accident.88

2.48          The English case R v Kingston upon Thames County Council ex parte Scarll89 shows the importance of reporting an accident involving injury to the Gardaí. A superintendent police officer gave assistance to a girl who had been hit by his car through no fault of his own. While he had spoken to the girl‟s father, who was a friend, it was held that this was not sufficient.

2.49          The duty in section 106 of the 1961 Act is limited in scope to a duty to report certain types of accidents. The Commission notes in this respect that this duty to report has been extended in a number of other common law jurisdictions, such as the United States and Canada, to include a duty to intervene and assist an injured person at the scene of the accident. The Oireachtas has not, to date, chosen to do so.

(5)             Safety and health at work legislation, including first aid

2.50          The Safety, Health and Welfare at Work Act 2005 imposes significant duties on employers which extend beyond a duty to act in a reasonably careful

85         Temelling v Martin [1971] RTR 196.

86         Mutton v Bates [1984] RTR 256.

87         Balman v Larkin [1981] RTR 1. In Vigus v. Mann [1961] WAR 1, it was held that a lapse of 3 hours was not “as soon as practicable”.

88         Quelch v Phipps [1955] 2 QB 107, where a passenger fell off a bus platform.

89         [1990] Crim LR 429.

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manner towards employees.90    Section 8(1) of the 2005 Act requires every

employer to ensure, so far as is reasonably practicable, the safety, health and welfare at work of all of his or her employees. Section 8(2) sets out a non-exhaustive list of duties under this general provision, which includes a duty to provide for the welfare of employees, and this encompasses the positive duty to provide first-aid assistance to employees who are injured at work. This clearly involves a statutory duty to assist and rescue.

2.51          These duties, therefore, clearly extend to the obligation to avoid omissions which are likely to cause injury both to employees who may be affected by the employer‟s activities. In addition, sections 18 to 20 of the 2005 Act require that certain precautions and preventative measures must be taken by the employer in order to ensure safety and health of employees, which must be set out in writing in a safety management document called the Safety Statement.

2.52          As regards first aid in particular, Part 7, Chapter 2 of the Safety, Health and Welfare at Work (General Application) Regulations 200791 (the First Aid Regulations 2007), made under the 2005 Act, sets out a specific duty on employers to make first-aid equipment and qualified occupational first aiders available to assist injured employees. The 2007 Regulations define “first-aid” as “treatment for the purpose of preserving life or minimising the consequences of injury or illness.” While the 2007 Regulations do not define first aid specifically to include, for example, the use of automated external defibrillators (AEDs), the authoritative Guide to the 2007 Regulations published by the Health and Safety Authority (HAS, the key regulator in this area) states that:

“The provision of automated external defibrillators (AEDs) in workplaces to prevent sudden cardiac death should be considered, and early defibrillation using an AED is one of the vital links in the “chain of survival”. Ideally, wherever there is an occupational first aider(s) in a workplace, provision of an AED should be considered. The training of other employees who are not occupational first-aider(s) in the use of AEDs is also encouraged.

Whereas it may be practicable and desirable to have an AED in every workplace, due to cost considerations it would be unreasonable to expect all employers (especially small and medium size enterprises (SMEs)) to have one on their premises, even if there

90         See generally Byrne, Safety, Health and Welfare at Work Law in Ireland 2nd ed (Nifast, 2008) and Shannon, Health and Safety: Law and Practice 2nd ed (Round Hall, 2008).

91         SI No 299 of 2007.

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is an occupational first-aider present. These costs not only include the purchase price but also the cost of maintenance of the equipment and refresher training for those trained in how to use AEDs.

However, different employers at the same location, such as in shopping centres, small business enterprise centres etc., where relatively large numbers of employees or other persons are likely to be habitually present, might find it feasible to co-operate in the provision of shared AED equipment, training and assistance.” 92

2.53          It is also notable that, in 2008, the FETAC93 qualification in occupational first aid includes a mandatory module in the use of automated external defibrillators (AEDs).94 This development is linked to the increased use of AEDs in response to sudden cardiac death (SCD), including the 2006 Report of the Task Force on Sudden Cardiac Death,95 which forms part of the wider policy context against which the Attorney General‟s request is to be considered. The Commission considers that the specific reference in the HSAs‟ 2007 Guide to the First Aid Regulations 2007 to the prevention of sudden cardiac death indicates that, in specific instances, a duty to rescue and assist may be appropriate.

(6)             Safety of Children: A Duty to Notify?

2.54          In Ireland there is no statutory provision for the mandatory reporting of child abuse in general, and child sexual abuse in particular. This remains the position although in recent years there have been numerous revelations involving not only instances of abuse but also systematic cover-up. Concern about the apparent impunity with which the perpetrators had acted and the immunity which seemed to attach to those who had failed to intervene led to the establishment of a number of public inquiries and the publication of several reports. This has led to the renewed vigour of those who advocate for mandatory reporting.

92         Guide to the Safety, Health and Welfare at Work (General Application) Regulations 2007 Chapter 2 of Part 7: First-Aid (HSA, 2007) p.7, available at www.hsa.ie

93         FETAC is the Further Education and Training Awards Council, established under the Qualifications (Education and Training) Act 1999.

94         See Byrne, Safety, Health and Welfare at Work Law in Ireland 2nd ed (Nifast, 2008), p.556; and Health and Safety Review, June 2008, available at www.healthandsafetyreview.ie

95         See the discussion in Part C of Chapter 1, above.

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2.55          The issue of whether to impose a duty on persons to report instances of child abuse has attracted much public debate. However, the Oireachtas has not moved to impose such a positive duty. The approach taken to date has been to protect those persons who do, in fact, report their concerns. This protection is enshrined in the Protection for Persons Reporting Child Abuse Act 1998. In the Commission‟s view, the absence of further legislative developments in this particular area indicates the difficulty of developing a general rule in this respect.

(7)             Conclusions

2.56          The Commission considers that the specific duties to intervene discussed in this Part have developed by reference to quite distinct rationales, each of which have validity. It is clear that their precise scope is fairly settled but that they are also capable of further development, as the comparative analysis makes clear in connection with those developed through judicial case law. In the case of legislative duties requiring an obligation to assist and rescue, it is clearly a matter for the Oireachtas to determine their scope and development. The Commission considers that it is appropriate that the courts and the Oireachtas should be left to decide these matters in connection with these specific instances. This can be achieved without prejudice to whether a more general duty to intervene and rescue is developed.

2.57          The Commission does not, therefore, propose to make any recommendation on these existing specific duties, and turns now to consider whether, as the Attorney General requested, a general duty to intervene should be put in place.

D              Consideration of a general duty to intervene and rescue

2.58          As the Commission has already noted, most common law States have maintained the view that there should be no general legal duty to intervene, subject to a number of specific exceptions. The Commission notes, however, that some States have enacted legislation providing for positive duties in certain circumstances. The Commission now turns to consider these and then to discuss whether such an approach should be taken in Ireland.

(1)             States that have imposed a duty to intervene

(a)             Canada

2.59          Quebec is unique in Canada in imposing a duty on everyone to help a person in peril.96 The duty to take action stems from the Quebec Charter of Human Rights and Freedoms 1975. Article 2 of the Charter states that “every

96         LRC CP 47-2007 at paragraph 2.16.

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human being whose life is in peril has a right to assistance”. This imposes an obligation on all persons to render aid if it can be accomplished without serious risk to that person or a third person or if there is no other valid reason for not rendering it.     Aid can be rendered personally by giving necessary and

immediate physical assistance or by calling for assistance.

(b)            United States97

2.60         Chapter 604A.01, subdivision 1, of the Revised Minnesota Statutes 2007, which imposes an affirmative duty to assist in an emergency (at the scene of an emergency), is an exception to the general rule that there is no duty to intervene. Minnesota has thus created a statutory duty to render assistance at the scene of an emergency where a person knows that another person is exposed to or has suffered grave physical harm. He or she must only render reasonable assistance if they can do so without danger or peril to themselves or others. A person who violates this rule will be guilty of a petty misdemeanour. The meaning of “reasonable assistance” and the immunity associated with the statutory duty was challenged in Swenson v Waseca Mutual Insurance Co..98 The interpretation of the term “reasonable assistance”, the case and its findings will be discussed further in Chapter 3.

(c)             Australia

2.61         The Commission notes that in Australia, there are certain situations in which a duty is imposed on a public authority to perform particular functions. The courts have based this duty on the general reliance which exists on the part of those at risk of injury or damage if certain statutory functions are negligently discharged.99

(2)             Consideration of a general duty to intervene

2.62          In the Consultation Paper, the Commission recommended that there should be no reform of the law to impose a duty on citizens in general, or any particular group of citizens, to intervene for the purpose of assisting an injured person or a person who is at risk of such an injury.100

2.63          The Commission described a number of reasons why the law hesitates to impose such an obligation on individuals. The Commission then concluded that the arguments against the imposition of a positive duty to

97         As regards states with a duty to aid see C.M. Ciociola “Misprision of Felony and Its Progeny” 41 Brandeis L.J. 697 at 735-36 (2003).

98         653 NW2d 794 (Minn Ct. App. 2002).

99         Sutherland Shire Council v Heyman (1985) 157 CLR 424

100       LRC CP 47-2007 at paragraph 2.52

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intervene had a great deal of weight, in particular, as the Commission noted, because they are consistent with the general basis of the duty of care in negligence which the Commission argued had not been criticised in any significant respect.101      Furthermore, the Commission concluded that the

arguments against imposing a duty to intervene outweigh any which would impose a general duty.102 In this section the Commission re-examines these arguments in detail. The Commission notes in this respect that, in Stovin v Wise103 Lord Hoffmann stated that “[t]here are sound reasons why omissions require different treatment from positive conduct” and that these can be set out in political, moral or economic terms.104 The Commission will now turn to deal with each of these arguments in turn as well as a number of additional arguments that have been put forward.

(a)             Personal Liberty and Freedom of Choice

2.64          One of the main arguments put forward against the introduction of a positive duty to intervene is that it would constitute too great an infringement of personal liberty.105    This argument stems from the limited choice offered by affirmative duties to potential defendants.    In Stovin v Wise Lord Nicholls referred to this argument. He stated that:

“Liability for omissions gives rise to a problem not present with liability for careless acts. He who wishes to act must act carefully or not at all … With liability for omissions, however, a person is not offered a choice. The law compels him to act when left to himself he might do nothing.106

2.65          Although it can be said that every duty which arises under law, both negative and positive, restricts our personal freedom, positive duties unlike negative ones are more restrictive because they deny us the option to avoid being subjected to them. Kortmann sets out a good example of this: if one believes they cannot act as a reasonable driver would, they can decide not to drive. However, one does not have the same option where they are required to act as a reasonable rescuer would upon witnessing an accident. However, Kortmann also notes that imposing positive duties does not in reality leave us

101       LRC CP 47-2007 at paragraph 2.50.

102       LRC CP 47-2007 at paragraph 2.51.

103       [1996] 3 All ER 801 at 819.

104       Ibid.

105       See Kortmann Altruism in Private La

106       [1996] 3 All ER 801 at 809.

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without an option to avoid being subjected to such positive duties but rather leaves a person with less of an option than is the case with negative duties.

(b)            Distinction between Nonfeasance and Misfeasance

2.66          Another argument relates to the common law distinction between misfeasance and nonfeasance.107    The Commission acknowledges that the question of what exactly constitutes “nonfeasance” is problematic. Certainly, it is clear that many words that are grammatically active connote inactive behaviour,108 e.g. sleeping, starving, fasting etc. In many cases, therefore, it is quite difficult to draw a clear distinction between feasance and nonfeasance.109

2.67          The Commission considers that the distinction between misfeasance and nonfeasance may also be stated in terms of acts and omissions and notes that the distinction between harming persons by active carelessness and a “simple” failure to help such persons is a jurisprudential distinction that has, for many years, been established as “fundamental” and “deeply rooted in the common law”.110 It is this classical distinction which holds that liability can result from an act of misfeasance but not from an act of nonfeasance.

2.68          To    help    clarify the    distinction    between    misfeasance    and nonfeasance, Weinrib has suggested focusing not on the moment the defendant failed to act to prevent harm to the plaintiff, but at the course of events prior to that moment. 111 If there is no significant interaction between the plaintiff and the defendant prior to that moment, the defendant's conduct can be considered to be nonfeasance.112 Participation by the defendant in the creation

107       Weinrib “The Case for a Duty to Rescue” (1980) 90(2) Yale Law Journal 247 at 251-258.

108       Kortmann Altruism in Private Law (Oxford University Press 2005) at 5.

109       Ibid, at 5-8.

110       Bohlen “The Moral Duty to Aid Others as a Basis of Tort Liability” (1908) Univ Penn Law Rev 217 at 219.

111       Weinrib “The Case for a Duty to Rescue” (1980) 90 Yale LJ 247 at 253

112       Weinrib “The Case for a Duty to Rescue” (1980) 90(2) Yale Law Journal 247 at 253-54. Professor Weinrib gives the example of two different scenarios: a car driver not pressing the brake and striking a pedestrian, and a pool patron not throwing a rope to a drowning person. Id. at 253. Looking only at the moment of injury, both situations pose instances of nonfeasance; the driver failed to press the brake, and the observer failed to throw a rope. Id. Looking to the events leading up to the injury, however, the driver created the conditions resulting in injury, while the pool patron did nothing to cause the drowning. Id. With this analysis, Professor Weinrib suggests that the car driver is guilty of misfeasance

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of the risk is thus the crucial factor in distinguishing misfeasance from nonfeasance.113 As will be discussed below, this line of reasoning also forms the basis for the “causation” argument against the imposition of liability for acts of nonfeasance.

2.69          Feasance is often regarded as being more culpable than nonfeasance. Kortmann notes that a reason for this may be due to the fact that many acts imply an additional inaction. Honoré argued that omissions are less culpable than acts that bring about the same or similar outcome, other things being equal.114 He argued that hitting someone is worse than not preventing someone from being hit.115 Honoré did state, however, that omissions that violate a distinct duty that we owe others are usually as culpable as positive acts that violate those duties.116

(c)             Individual Freedom

2.70          In the UK case Stovin v Wise,117 the argument in favour of individual freedom was also put forward. Lord Hoffmann argued that omissions require different treatment from positive conduct for the reason that it would constitute an interference with individual liberty:

“…it is less of an invasion of an individual‟s freedom for the law to require him to consider the safety of others in his actions than to impose upon him a duty to rescue or protect.”

2.71          While the Commission appreciates that it may be morally commendable to assist a person in need of rescue, it nonetheless considers that the imposition of a positive duty to intervene would constitute too great an infringement of an individual‟s freedom, an important feature of the common law.

while the pool patron's conduct is nonfeasance. Id.; see also Newton v Ellis 119 Eng. Rep. 424 (K.B. 1855) (holding that one who dug a hole near a road and failed to light it at night was guilty of misfeasance because the inaction (failure to light the hole) was preceded by an act (digging the hole)).

113       Weinrib “The Case for a Duty to Rescue” (1980) 90(2) Yale Law Journal 247 at 256.

114       Honoré “Are Omissions Less Culpable?” in Cane and Stapleton (eds.) Essays for Patrick Atiyah (1991) at 31.

115       Ibid at 48.

116       Ibid at 33.

117       [1996] 3 All ER 801.

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(d)            Economic Arguments

2.72          In Stovin v Wise,118 Lord Hoffmann stated that a legal obligation to undertake a rescue could amount to the state appropriating the citizen‟s resources without compensation. In other areas of tort law, price deterrence has been established as a ground for the imposition of liability on a person who causes loss or damage to others.119 If a person is held liable for the damage and loss that they cause to others, this person will eventually refrain from carrying out the harmful activity.120 As Lord Hoffmann pointed out in Stovin v. Wise, the efficient allocation of resources usually requires an activity should bear its own costs. He considered that if an activity were able to benefit from being able to impose some of its costs on other people, or „externalities‟ as they are economically termed, the market would be distorted because the activity would appear cheaper than it really is. Thus, liability to pay compensation for loss caused by negligent conduct acts as a deterrent against increasing the cost of the activity to the community. But there is no similar justification for requiring a person who is not doing anything to spend money on behalf of someone else. Lord Hoffmann noted that except in special cases (such as marine salvage) the common law does not reward someone who voluntarily confers a benefit on another. So there must be some special reason why he should have to put his hand in his pocket. It would seem that Lord Hoffmann based his conclusions here on the fact that inaction does not cause harm. If this had not been the case then Lord Hoffmann‟s argument might easily be extended to justify the imposition of the cost of harm on the person whose failure to act had “caused” it.

(e)             Altruism

2.73          Another argument involved relates to the principle of altruism. As Weinrib has noted, “the problem of rescue is a central issue in the controversy about the relationship between law and morality”.121    The basic theory of altruism shows that persons are morally bound to assist one another. A Good Samaritan is generally, therefore, said to act out of the kindness in his or her heart. The Commission considers that a positive legal duty to intervene to assist another, therefore, would run counter to this principle, although it accepts that, in some instances the law can impose a duty to behave in an altruistic

118       [1996] 3 All ER 801 at 819.

119       See Kortmann Altruism in Private Law (Oxford University Press 2005) at 18- 23.

120       See Calabresi “Some Thoughts on Risk Distribution and the Law of Torts” (1961) 70 Yale LJ 499.

121       Weinrib, The Case for a Duty to Rescue, 90 Yale L.J. 247, 293 (1980).

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manner, as when imposing duties on parents and guardians.122 As the Kansas Supreme Court stated in Union Pacific Railway Co. v Cappier:123

"feelings of kindness and sympathy may move the Good Samaritan to minister to the sick and wounded at the roadside, but the law imposes no such obligation; and suffering humanity has no legal complaint against those who pass by on the other side."

In this respect, the Commission has concluded that while altruism plays an important part in the formation of legal principles, the concept of forced volunteerism appears to be a contradiction in terms.

(f)             Causation

2.74          Weinrib notes that an absolutely necessary feature of the law of tort is the causation of harm. He points out that central to our conception of tort law are, firstly, „the bipolar procedure that links plaintiff and defendant‟ and, secondly, the „causation of harm‟. He states that the causation of harm requires an act that results in suffering:

“[S]uffering by the plaintiff that is independent of the defendant‟s doing has no significance for tort law. Accordingly, no liability lies for failure to prevent or alleviate suffering.”124

2.75          As the Commission noted in the Consultation Paper,125 if inaction is incapable of causing harm, then it cannot form the basis for a claim in negligence. If negligence were to concern itself with inaction, this would be akin to creating a conduct offence under negligence, which would go against the basis of negligence, which seeks to redress those situations in which damage has been caused. Kortmann points out the confusion, however, that has arisen between the issue of causation and that of duty on the other hand.126 Our very understanding of the term “cause” implies a positive interference rather than a mere inaction. However, instances involving an affirmative duty to act do not appear to present any particular difficulty in our acceptance of the issue that inaction may, in fact, “cause” harm. It is Kortmann‟s contention, therefore, that inaction is just as likely to give rise to harm as positive action, however, it is only where there is a duty to act that legal liability will arise.

122       See the critique of the approach to this issues in the Consultation Paper in Byrne and Binchy, Annual Review of Irish Law 2007 (Round Hall, 2008), pp.390-1.

123       72 P. 281 (1903).

124       Weinrib The Idea of Private Law (Harvard University Press 1995), at 12-14.

125       LRC CP 47-2007 at paragraph 2.43.

126       Kortmann Altruism in Private Law (Oxford University Press 2005) at 24-27.

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(g)            Indeterminate Number of Claims

In Donoghue v Stevenson127 Lord Atkin pointed out that to create a positive duty to intervene could create a situation in which innumerable claims could arise. He pointed out that the common law had, for this reason, developed rules which limit the range of complainants and their remedies. In addition, the Commission believes that, were moral wrongdoing to be a cause of action, there could well be numerous types of damage which might be difficult or even impossible to quantify. Certainly, what one person considers immoral or wrong, another person might not. In this regard, enforcing moral obligations could lead to much uncertainty in the law. In particular, it has been argued that the recognition of moral obligations as valid legal claims would destabilise written law by replacing it with the varied morals of those sitting on the bench. 128

(h)             Several Tortfeasors / „Why Pick on Me?‟ Argument

2.76          Lord Hoffmann in Stovin v Wise stated that:

“[a] duty to prevent harm to others or to render assistance to a person in danger or distress may apply to a large and indeterminate class of people who happen to be able to do something. Why should one be held liable rather than the other?”129

2.77          The Commission considers this to be a compelling argument in cases involving nonfeasance or passive inaction. The Commission believes that the argument that each of the spectators is equally to blame where none of them acted is an important one. Furthermore, unlike the situation involving misfeasance, in cases of nonfeasance it will be difficult to identify who exactly is responsible for the harm which has occurred.130 As noted in the Consultation Paper,131 cases of inaction do not afford the opportunity to analyse whose inaction is most responsible for the harm.

2.78          The Commission acknowledges, however, the argument that the difficulties posed by the “Why pick on me?” argument are no less surmountable than those posed by ordinary negligence cases involving many tortfeasors.132 In those cases, while the victim has the right to only one recovery, each

127       [1932] AC 562.

128       Union Pacific Railway Co. v Cappier 72 P. 281 at 283. (Kan. 1903).

129       [1996] 3 All ER 801.

130       Kortmann Altruism in Private Law (Oxford University Press 2005) at 16-17. Weinrib “The Case for a Duty to Rescue” (1980) 90 Yale LJ 247 at 262.

131       LRC CP 47-2007 at paragraph 2.45.

132       Weinrib “The Case for a Duty to Rescue” (1980) 90 Yale LJ 247 at 262

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tortfeasor is liable to the victim and entitled to make a contribution with each of the other tortfeasors.

(3)             Conclusions

2.79          The submissions received by the Commission after the publication of the Consultation Paper pointed out that a duty to intervene has never been a characteristic of Irish law and that, in the main, volunteers usually act for altruistic reasons and because they have a moral, rather than legal, duty to intervene. A number of submissions also note that a duty to intervene which may open individuals to civil liability might have the unintended consequence of making them unwilling or afraid to volunteer or to intervene in emergency situations which, the Commission considers, would be inimical to the policy objectives set out in Chapter 1.

2.80          Having considered these submissions and reflected again on the arguments that required consideration on this aspect of the Attorney General‟s request, the Commission remains of the view that there should be no reform of the law in this area so as to impose a duty on citizens in general, or any particular group of citizens, to intervene for the purposes of assisting an injured person or a person at risk of such injury.

2.81          The Commission also notes that, in addition to the arguments discussed above, it could also be said that the imposition of affirmative duties could lead to indeterminate or large numbers of claims thereby putting a strain on limited budgets, as well as provoking detrimentally defensive approaches. The imposition of a duty to intervene could also have other adverse effects on the provision of beneficial public services which the Commission considers would be in conflict with the policy objectives outlined in Chapter 1.

2.82          The Commission recommends that there should be no reform of the law to impose a duty on citizens in general, or any particular group of citizens, to intervene for the purpose of assisting an injured person or a person who is at risk of such an injury.

(4)             “Easy rescue”

2.83          The Commission noted in the Consultation Paper that some commentators have taken a modified stance in advocating a so-called “easy rescue,” in the sense of an intervention that poses little or no inconvenience to the intervenor, rather than a general positive duty to intervene.133

2.84          The Commission argued that while it may be more reasonable to expect an individual to conduct an easy rescue, the Commission found that

133       LRC CP 47-2007 at paragraphs 2.47-2.50. See also the discussion in Weinrib

“The Case for a Duty to Rescue” (1980) 90 Yale LJ 247.

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there is no greater legal basis for such an obligation than there is for a full blown duty to rescue. The Commission noted that it was particularly concerned about the uncertainty that the operation of such a duty might entail.134

2.85          Weinrib defends a duty of easy rescue, which would require intervention provided that, firstly, the situation involved is an emergency and, secondly, the intervention would involve no risk and little other cost for the one who intervenes.135     Other commentators assert that a duty should arise whenever one person is caught in a dangerous situation that another can alleviate at no significant cost to himself or herself. The Commission observes that it has also been argued that there has been a relaxation of the general principle that there is no duty to intervene. In this regard, it has been remarked that in recognising the merit of rescue and the desirability of encouraging it, the courts have increasingly afforded favourable treatment to rescuers in recognising claims for compensation by injured rescuers136 and ruling unavailable defences such as voluntary assumption of risk and novus actus interveniens. 137

2.86          The Commission noted in the Consultation Paper that,138 while Irish law may not have gone so far in this regard, it certainly seems to be the case that the courts are less likely to consider these defences unless it can be shown that the rescuer acted in some reckless or wanton way.139 Furthermore, as outlined already, there are indications that the specific instances where the law imposes a duty to intervene are capable of some expansion. The Commission also notes that the experience of other jurisdictions is that a rescuer will rarely be found liable unless he or she has acted wantonly or recklessly in either assessing the situation or in reacting to the situation.140

2.87          In arguing for a modified duty to intervene, Weinrib pointed out that the requirements of emergency and absence of prejudice distinguish the duty to carry out an easy rescue from those duties contemplated by the general no-duty to intervene rule. It has been argued that a duty to carry out an easy rescue will not, for instance, unduly inconvenience the bystander. The relative level of

134       LRC CP 47-2007 at paragraph 2.50.

135       Weinrib "The Case for a Duty to Rescue” (1980) 90 Yale LJ 247.

136       Ibid at 248.

137       Ibid.

138       LRC CP 47-2007 at paragraph 2.47.

139       Phillips v Durgan [1991] ILRM 321 cited in McMahon and Bin Torts (3rd ed Butterworths 2000) at 581-584.

140       Weinrib “The Case for a Duty to Rescue” (1980) 90 Yale LJ 247

 

ease with which the bystander may intervene may be determined by referring to the nature of the activity undertaken, e.g. a phone call to the emergency services, or the level of skill of the particular bystander, e.g. a trained paramedic may be in a much stronger position to administer CPR than an untrained bystander.

2.88          The Commission notes, however, that a duty to intervene which is qualified by the level of inconvenience that may be encountered by the intervenor is of an uncertain nature. On the one hand, the duty may oblige the bystander to do only that which takes the least effort, as this is likely to cause the least inconvenience. However, such an intervention is unlikely to benefit the injured stranger to any great extent and, therefore, may be pointless. This lack of certainty is exacerbated by the fact that the action necessitated by the duty to intervene would vary from intervenor to intervenor depending on the particular skill set of the person involved. Furthermore, clarification of the circumstances surrounding the situation in which an easy rescue might be undertaken would pose a virtually impossible task. For these reasons and the argument outlined above as to the multitude of persons to whom liability might potentially attach, the Commission recommends that considers that there should be no duty to carry out an “easy rescue.”

2.89          The Commission recommends that there should not be reform of the law to impose a duty to carry out an “easy rescue.”

2.90          The Commission notes that this provides an answer to one of the questions posed by the Attorney Generals‟ request. The Commission next turns to address the situation where an individual “Good Samaritan” does intervene to help a person in need and causes injury or harm in the process and, likewise, where a person intervenes as a “volunteer” and causes injury to a person in his care or for whom he or she is responsible.

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CHAPTER 3          DUTY OF CARE AND STANDARD OF CARE

A              Introduction

3.01          In Chapter 1, the Commission considered the wider policy setting and background against which the Attorney General‟s request was received and noted the importance of promoting active citizenship in Ireland. In Chapter 2, the Commission recommended that there should be no general duty either to intervene as a Good Samaritan or to act as a volunteer.

3.02          In this Chapter, the Commission analyses the extent to which a voluntary intervention, by either a Good Samaritan or volunteer, can be subject to a duty of care under the law of negligence and also examines the standard of care to be applied in that event. In Part B, the Commission sets out the principles of negligence as they apply to Good Samaritans, voluntary rescuers and voluntary service providers. In Part C, the Commission examines the duty and standard of care of Good Samaritans. In Part D, the Commission analyses the duty and standard of care of voluntary rescuers. In Part E, the Commission discusses the duty and standard of care of other volunteers and voluntary service providers. In Part F, the Commission discusses why it considers that the duty and standard of care of Good Samaritans and volunteers should be set out in legislation.

B              Law of Negligence

(1)             Introduction

3.03          The law of negligence exists to compensate persons who are injured through the act or omission of another. The injured person, or the plaintiff, sues the wrongdoer or defendant for a “failure by the defendant to conform to the required standard of behaviour.”1 Therefore, the tort of negligence is concerned with a failure on the defendant‟s part to exercise the level of care which the law deems to be due to the plaintiff. The level of care expressed to be required is “reasonable care in the circumstances”. Thus, in the wake of leading decisions

1          McMahon and Binchy Irish Law of Torts (3rd ed Butterworths 2000) at paragraph

7.01.

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such as Donoghue v Stevenson,2 a person must take reasonable care to avoid acts or omissions which would be likely to harm any person that they ought reasonably to foresee as being so harmed in the circumstances prevailing. The main problems in this regard include the determination of which circumstances are relevant in a given instance and the evaluation of what is “reasonable”.

3.04          The Commission notes that there are four elements of the tort of negligence, developed.3 These are:

(1)  Duty of care: the existence of a legally recognised obligation requiring the careless person to conform to a certain standard of behaviour for the protection of others against unreasonable

risks.4

(2)  A failure to conform to or a breach of the required standard of care.

(3)  Actual loss or damage to recognised interests of the reasonably foreseeable person affected by the failure to conform to the standard

(4)  A sufficiently close causal connection between the conduct and resulting injury to the plaintiff.

3.05          The Commission notes that several elements of the tort of negligence will often be discussed together without any attempt to analyse them separately. The Commission proposes, however, to discuss each of these elements separately so as to set out the principal issues involved in an analysis of whether the Good Samaritan or volunteer comes under a duty to act with reasonable care.

(2)             Duty of Care

3.06          It was noted in the English case Le Lievre v Gould5 that a person “is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them”. And so, the question arises as to what is meant by “duty”. McMahon and Binchy point out that the duty concept is “a control device

2          [1932] AC 562, the decision of the UK House of Lords in which, as discussed in Chapter 2, the tort of negligence was developed by reference to the parable of the Good Samaritan.

3          McMahon and Binchy Irish Law of Torts (3rd ed Butterworths 2000) at paragraph 7.01.

4          Ibid.

5          [1893] 1 QB 491 at 497 (CA), quoted with approval by Fitzgibbon LJ in Petrie v Owners of SS “Rostrevor” [1898] 2 IR 556 at 575 (CA).

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whereby the courts may, as a matter of law, limit the range of liability within what they consider to be reasonable bounds”.6 In other words, an individual will only be liable for harm done to another where he or she owes a duty to that other. The Commission notes that discussion of the duty of care concept has focused mainly on how it relates to the range of persons to whom the defendant may be obligated.7 The Commission observes, however, that courts will also take into account the type of damage or injury when determining whether a duty of care is owed.8 For instance, it is more likely that a court will find a duty to exist in circumstances where the damage is physical rather than where it may be classified as “pure economic loss” or “nervous shock.”

3.07          In Glencar Exploration plc. v Mayo County Council,9 the Supreme Court stated that in order to establish a duty of care it must be shown that:

•    there is proximity between the alleged duty holder and the injured person;

•    the injury or damage caused was reasonably foreseeable by the alleged duty holder;

•    it is just and reasonable to impose a duty of care.

3.08          Regarding “proximity”, McMahon and Binchy suggest that it is perhaps synonymous with “neighbourhood”, which implies a closeness between the parties that is not confined to considerations of space and time.10

3.09          The next step in establishing whether a duty exists necessitates an examination of whether it was reasonably foreseeable that the intervention would injure the stranger.11 The use of the reasonable person indicates that the analysis should be objective rather than subjective. In other words, it should be based on the standards of the community and not the individual perspective of the defendant. In this regard, the analysis seeks to calibrate the knowledge possessed by the defendant against the knowledge possessed by the reasonable person in similar circumstances. Thus, the court will look to the

6          McMahon and Binchy, Law of Torts 3rd ed (Butterworths, 2000), at 115.

7          As in Donoghue v Stevenson [1932] AC 562.

8          In other words whether a claim is for personal injury, physical damage to property, pure economic loss or nervous shock.

9          [2002] 1 IR 84. See also Fletcher v Commission for Public Works [2003] 1 IR 465.

10         McMahon and Binchy Law of Torts (3rd ed. Butterworths 2000) at 119.

11         Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388 (UK House of Lords).

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knowledge that would be expected of a reasonable person in similar circumstances to the particular case at hand.12

3.10          The final step requires an investigation as to whether it would be “just and reasonable” to impose a duty of care. This third element is also sometimes referred to as the policy factor. Prior to Glencar Exploration plc v Mayo County Council,13 a two-stage test that accorded a lesser weight to public policy concerns had been used.14      In the Glencar decision, the Supreme Court restated the principles of the duty of care in negligence.15 Delivering one of the judgments in the Supreme Court, Keane C.J. considered it desirable to add a third requirement, the „just and reasonable‟ test, favoured by the UK House of Lords in Governors of Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd16 and later decisions of the House of Lords.17 Therefore, added weight is now given to the evaluation of whether it is just and reasonable to impose a duty of care in the circumstances.

3.11          Specifically, the just and reasonable test looks at broad considerations of social policy in deciding whether a duty of care is owed. There must be no issues of public policy which could negative, limit or reduce the scope of the duty of care, the class of persons to whom it is owed or the amount of damages that are recoverable. In this regard, McMahon and Binchy note that the court may decide that it is not in society‟s best interests that a defendant, and others similarly acting, should compensate persons injured by the particular conduct as this might deter other persons from engaging in that

12         The Commission points out that a greater knowledge may be expected of a person who is particularly skilled in the area of rescue, such as a voluntary rescuer or medically qualified person where an intervention of rescue is concerned.

13         [2002] 1 IR 84. See also Fletcher v Commission for Public Works [2003] 1 IR 465.

14         In the UK House of Lords decision Anns v Merton London Borough Council [1978] AC 728, Lord Wilberforce stated that once a duty of care had been found: “it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of, the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.” This was endorsed in Ireland by the Supreme Court in Ward v McMaster [1988] IR 337.

15         For a detailed analysis see Byrne and Binchy, Annual Review of Irish Law 2001 (Thomson Round Hall 2002).

16         [1985] AC 210.

17         This test had also been preferred by Costello J. in his High Court decision in Ward v McMaster [1988] IR 337.

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conduct in the future.18 In this way, the courts, in the majority of cases, set out the scope of the duty of care so as to accomplish various social goals. Given the policy considerations regarding Good Samaritans and volunteers, as outlined in Chapter 1, this evaluation is particularly important in the context of this Report.

(3)             Standard of Care

3.12          Once a duty has been established the focus of the analysis moves to the standard of care issue. In this regard, McMahon and Binchy note that the courts tend to ask whether the defendant acted as “the reasonable person” would have done. This is an objective test. In Kirby v Burke, in which the general concept of a duty of care in negligence was first established in Irish law, Gavan Duffy J. stated:

the foundation of liability at common law for tort is blameworthiness as determined by the existing average standards of the community; a man fails at his peril to conform to these standards. Therefore, while loss from accident generally lies where it falls, a defendant cannot plead accident if, treated as a man of ordinary intelligence and foresight, he ought to have foreseen the danger which caused injury to his plaintiff.”19

3.13          The defendant must, therefore, exercise such care as would be exercised by the reasonable person in similar circumstances. Seavey points out that regard must be had, however, to the characteristics of the group to which the defendant belongs,20 including physical and mental characteristics, moral qualities and skill. This introduces a subjective element into the test to assess the appropriate standard of care. Thus, the standard of care to apply will vary depending on the level of skill of and knowledge possessed by the actor.

3.14          McMahon and Binchy have set out the factors to which the courts have regard in assessing the standard of care required:21

The probability of an accident caused by the defendant‟s conduct: this is closely related to the issue of foreseeability. The greater the likelihood of harm to the plaintiff, the more probable it is that

18         McMahon and Binchy Law of Torts (3rd ed. Butterworths 2000) at 116-117

19         [1944] IR 207.

20         Seavey “Negligence – Subjective or Objective?” (1927-1928) 41 Harv L Rev 1 cited in McMahon and Binchy Irish Law of Torts 3rd ed (Butterworths 2000) at 149.

21         McMahon and Binchy Law of Torts (3rd ed. Butterworths 2000) at 154-167 (footnotes omitted).

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the court will consider it unreasonable for the defendant to

engage in the conduct in question or to fail to take steps to

avoid the threatened injury. The gravity of the threatened injury: where the potential injury is

great, the creation of even a slight risk may constitute

negligence. The cost of eliminating the risk: this concept is more suited to those

carrying on activities in an organisational setting in that it refers

to the cost of implementing safeguards around an activity. The social utility of the defendant’s conduct: where the defendant‟s

conduct has a high social utility it will be regarded with more

indulgence than where it has none.

3.15          McMahon and Binchy point out that “itemising these factors can give no indication of their weight in any particular case: determining this question involves a complex value-judgment, rather than merely some mathematical

process.”22

3.16          In applying these principles to the type of scenario contemplated, the Commission understands that the common law standard of care to be expected of persons who intervene to assist someone in danger will vary according to their level of experience and the particular circumstances of the case. For instance, in the case of a doctor, the court would consider how a reasonable doctor with the same qualifications and background would have acted in a similar situation, for example, without equipment and hospital facilities. These circumstances must be taken into account as even where an individual has medical qualifications, it would not be fair to hold him or her to the same standard of care as would be expected in a hospital or practice setting when he or she just happens upon an accident. Therefore, in determining whether the rescuer has met the standard of care, the courts must consider what is reasonable in the circumstances prevailing.23

(4)             Definitions

(a)             Good Samaritans

3.17          In the Consultation Paper, the Commission concluded that a “Good Samaritan” refers to:

22         McMahon and Binchy Law of Torts (3rd ed. Butterworths 2000) at 112.

23         Eburn Emergency Law 2nd ed. (Sydney: Federation Press, 2005), pp.45-48, notes that courts acknowledge that the rescuer may be acting in situations outside their experience.

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“Any person who intervenes voluntarily (without legal obligation or expectation of reward), to assist a person (using any reasonable means), who he or she reasonably believes (based on reasonable, objective criteria), to be ill, injured or at risk of illness, injury or death (where illness includes unconsciousness).”24

3.18          The Commission noted that the Good Samaritan might be an unskilled passerby, an off-duty voluntary service provider or an off-duty professional. These distinctions may be relevant to identifying the appropriate standard of care. The traditional scenario is that he or she happens upon an accident or emergency unexpectedly, when he or she is unprepared to deal with it. An example of a situation involving a Good Samaritan would be where an individual, who, for example, is out for a stroll, comes across a stranger who has collapsed in the street, been involved in a car accident or got into difficulty in the water. In these scenarios the stranger has no means of helping himself or herself and so requires outside intervention to abate the risk that he or she faces. The individual out for a stroll happens upon the scene unexpectedly and is presented with the choice of intervening, with minimal resources to hand, to assist – thereby becoming a Good Samaritan - or walking on.

(b)            Voluntary Rescuers

3.19          As discussed in the Consultation Paper, a “voluntary rescuer” can be said to be any person who is a member of a voluntary rescue organisation, providing a structured response, who is trained and equipped to deal with situations of accident and emergency and has some level of expectation that an accident or emergency will arise.25 A voluntary rescuer may be any person who has received the requisite amount of training, whether he or she is a layperson or an off-duty professional. The voluntary rescuer spends time training and attaining a certain level of skill and expertise in certain rescue techniques and practices.    Furthermore, voluntary rescuers often work in defined areas of coverage and take responsibility for responding to any accident or emergency that occurs in that area. Therefore, it could be said that the voluntary rescuer holds himself or herself out, more so than a Good Samaritan, as willing and able to intervene in the event of a crisis.26

3.20         Examples of voluntary rescuers are given by the Pre-Hospital Emergency Care Council (PHECC), the State body with responsibility for

24         LRC CP 47-2007 at paragraph 3.02.

25         LRC CP 47-2007 at paragraph 3.57.

26         See Barnett v Chelsea and Kensington Management Committee [1969] 1 QB 428.

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standards in pre-hospital emergency medical services.27    These include the

Civil Defence, the Irish Coast Guard, the Irish Heart Foundation, Irish Mountain Rescue, Irish Red Cross, Irish Society for Immediate Care, Order of Malta Ambulance Corps and St. John‟s Ambulance Brigade.

(c)             Voluntary Service Providers

3.21          In the Consultation Paper, the Commission concluded that the term “voluntary service provider” referred to those members of the Voluntary and Community sector that provide services, of their own free will and without payment, for the benefit of society.28     The Commission observed that a voluntary service provider is just as likely to be an individual as an organisation. Where the voluntary service provider is an individual, a distinction can be drawn between those individuals defined as “informal volunteers”, who work independently, and those defined as “formal volunteers”, who work with an organisation.

3.22          The voluntary service provider may be involved in a very wide range of services and activities, particularly involving the provision of not-for-profit social services and social inclusion activities. The range of services provided by the voluntary service provider, therefore, may be much broader than that of the Good Samaritan or voluntary rescuer. Furthermore, the activities will not necessarily be of an inherently dangerous nature. Finally, the Commission noted that the voluntary service provider, unlike the Good Samaritan or the voluntary rescuer, may be responsible for creating the risk that has led to the individual‟s predicament.

C              Duty and Standard of Care of Good Samaritans

(1)             Duty of Care

3.23          In the Consultation Paper, following a detailed analysis of the principles of negligence, the Commission concluded that Good Samaritans may come under a duty to act with reasonable care.29 The Commission considers broadly that liability for harm to another may be recognised when, having no prior duty to do so, the Good Samaritan takes charge of another who is helpless. The Good Samaritan in such a situation will be subject to liability for injury to that other where the Good Samaritan fails to exercise reasonable care in securing his or her safety or discontinues providing aid or protection and

27         See www.phecc.ie

28         LRC CP 47-2007 at paragraph 3.99.

29         LRC CP 47-2007 at paragraphs 3.02 – 3.56.

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leaves the victim in a worse position.     In the Canadian case Horsley v

MacLaren,30 Schroeder JA stated:

“[E]ven if a person embarks upon a rescue and does not carry it through, he is not under any liability to the person to whose aid he had come so long as discontinuance of his efforts did not leave the other in a worse condition than when he took charge.”

3.24          The Commission notes that, particularly in the case of rescue situations entailing physical intervention, it is highly likely that the relationship between the Good Samaritan and the stranger will be recognised as one of sufficient proximity so as to give rise to a duty of care. In many cases, it may be held that a Good Samaritan had voluntarily assumed responsibility by intervening in the situation.31 In the UK case Hedley, Byrne & Co Ltd v Heller & Partners Ltd,32 it was held that liability can exist where one party relies on another‟s special skill and trusts him to exercise due care and that other knows or ought to have known that the party was so relying on the special skill. As Lord Morris in the House of Lords stated:

if someone possessed of a special skill undertakes… to apply that skill for the assistance of another person who relies upon that skill, a duty of care will arise.”33

3.25          Thus, where a Good Samaritan voluntarily intervenes in favour of a stranger, provided the stranger relies on this voluntary intervention, and the Good Samaritan knows that the stranger is so relying on his or her intervention, a duty of care may arise. The case may be even stronger in situations where the Good Samaritan advertises that he or she is especially skilled in an area relevant to the rescue intervention, for example, if he or she were to state “trust me, I‟m a doctor.” Such an announcement might induce in the imperilled person a confidence in the Good Samaritan‟s skills such that he or she would be more inclined to rely on the Good Samaritan‟s intervention.

3.26          The voluntary intervention or undertaking may be an express promise or one implied from the actions of the Good Samaritan. Regardless of whether it is express or implied, the Commission considers that a promise to rescue is, in effect, a promise to endeavour to rescue and not one to achieve a successful

30         [1972] SCR 441.

31         See Kortmann, Altruism in Private Law (Oxford University Press 2005) at 58-68.

32         [1964] AC 465, cited with approval by the High Court in Securities Trust Ltd. v Hugh Moore & Alexander Ltd. [1964] IR 417.

33         [1964] AC 465 at 502-503.

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outcome upon intervention.34 Given that the nature and content of a promise to endeavour is less specific than that of a promise to achieve a particular result, it lends itself less to being interpreted as an enforceable obligation. It is also important to point out that generally the law will refrain from enforcing a simple promise or statement of intention, unless made in contractual relations or unless it can be shown that there was reasonable reliance of which the voluntary service provider was aware.

3.27          There are a number of actions which a Good Samaritan could potentially undertake to assist a stranger. Situations may range from those in which the Good Samaritan alerts the stranger himself or herself to an imminent risk or alerts the emergency services to the situation involving the stranger to those involving a more direct and physical act of intervention, for example, in the provision of first aid assistance.35 The more invasive or direct the intervention, the more likely it is that a duty of care will arise. Given the risk of injury to the stranger, foreseeability of harm is more readily established in such situations.

3.28          Looking at the issue of reliance, the Commission points out that a Good Samaritan, by his or her voluntary intervention, may cause the stranger to rely on him or her, which in turn will give rise to a relationship of proximity. The Commission considers that the term “reliance” implies that the stranger, in whose affairs the Good Samaritan has intervened, had the opportunity to choose between the course of conduct advised by the Good Samaritan and alternative courses. In a rescue this scenario will not always be the case. Where the stranger does have a choice, the Commission considers that reliance may mean that the stranger has changed his or her position on faith of the intervention by the Good Samaritan.

3.29          For the issue of reliance to have any legal implications, the Commission notes that the Good Samaritan must also be aware that the stranger is relying on his or her intervention. Such reliance must be objectively reasonable taking into account the circumstances of the rescue, including the availability of alternative courses of action, as well as other relevant factors such as the identity of the Good Samaritan. The Commission accepts that the law is reluctant to recognise non-detrimental reliance as a ground for holding the Good Samaritan liable for his or her intervention as such reliance implies that the stranger has not succumbed to actual injury or damage because of the reliance itself. In other words, this means that the stranger will be no worse off having changed his position on faith of the Good Samaritan‟s intervention. However, the Commission observes that it is uncertain whether a Good

34         LRC CP 47-2007 at paragraphs 3.10-3.12.

35         LRC CP 47-2007 at paragraph 3.14.

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Samaritan could be held liable for speeding up the arrival of the inevitable consequence, i.e. illness, injury or death, of a perilous situation. Detrimental reliance, on the other hand, suggests that the stranger has changed his or her position for the worse based on the intervention of the Good Samaritan. This is more likely to give rise to a duty of care, as the Good Samaritan‟s intervention has caused the stranger to be in a position of greater risk or to sacrifice a potentially more successful alternative option.

3.30          Thus, the Commission notes that where the voluntary intervention is constituted by a promise to the stranger, the element of reliance, if it exists, will be readily discernible. Where the voluntary intervention is a voluntary act, however, the issue of whether the element of reliance is present may depend on the nature of the act involved i.e. whether the Good Samaritan becomes directly involved or merely alerts a third party to the stranger‟s predicament. As already noted, it is more likely that the stranger will rely on the Good Samaritan where the Good Samaritan‟s involvement is direct and physical rather than where it is indirect, for example, when the Good Samaritan alerts a third party. It is in the former situation, then, that the conditions are more amenable to giving rise to a relationship of proximity.

3.31           The Commission acknowledges that the stranger will not always be in a position to decide whether or not to rely on the Good Samaritan‟s intervention, either because no alternative exists or because the stranger is incapable of making a choice, for instance, where he or she is unconscious. Such rescue situations may be more accurately described as relationships of control and dependence.36 Kortmann points out that the law may be reluctant to recognise such relationships as giving rise to a duty of care but the Commission considers that there is nonetheless a possibility.37

3.32          The Commission notes that control may relate to the respective powers of the parties involved, with the Good Samaritan obviously occupying the stronger position by being capable of taking control of the situation. Control might also suggest that the Good Samaritan intentionally takes charge of the situation, by express statement of intention or by implication of his or her conduct. Under this interpretation, there are a number of ways by which the Good Samaritan might take control such as alerting the stranger to the risk, alerting the emergency services to the risk or, at the higher end of the scale, taking complete control of the situation. This might occur where the Good Samaritan possesses special skills in relation to the situation. It is important to note that an assumption of control, in this sense, might lead to the exclusion of other possible sources of assistance. Where this condition prevails and where

36         Kortmann Altruism in Private Law (Oxford University Press 2005) at 64.

37         Ibid.

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it is coupled with the dependence of the stranger, the Commission considers that a relationship of proximity sufficient to give rise to a duty of care could certainly be established - provided the other duty of care requirements were also established.

3.33          The Commission notes that, in many cases, the stranger may have no choice but to succumb to the will of the Good Samaritan either because there are no alternatives or, indeed, no real alternatives to the Good Samaritan‟s intervention, particularly in the case of imminent injury or death. As the Commission has already pointed out, there may also be situations in which the stranger is incapable of choosing. In such situations, it may be asserted that the Good Samaritan acts on behalf of the stranger when he or she assumes control. The Good Samaritan must, therefore, be aware that his or her decisions and actions may have a direct impact on the well-being and life of the stranger and that he or she may easily aggravate any existing condition or, indeed, create a new risk of harm. Bearing this in mind, the Commission considers that such a voluntary intervention may signify that the Good Samaritan appreciates the gravity of the situation, for which he or she accepts to take responsibility.

3.34          The next step is a determination of whether injury was a reasonably foreseeable result of the intervention. Where it can be shown that the Good Samaritan knew or ought to have known that his or her intervention would injure the stranger, it might be asserted that the Good Samaritan ought to have modified his or her conduct. The Commission notes that foreseeability may also depend on the circumstances of the case. For instance, where the stranger is in a particularly dangerous situation, it is clear that the risk of injury will be greater and, therefore, more foreseeable.38

3.35          The extent to which the Good Samaritan is aware of what has given rise to the stranger‟s predicament will be an important consideration in the analysis of foreseeability. The type of intervention undertaken by the Good Samaritan will also be relevant. Injury may be more likely where the Good Samaritan undertakes an invasive intervention such as medical intervention, than a non-invasive intervention such as one which entails contacting the emergency services. Furthermore, it is important to consider the type and level of skill that might be attributed to the Good Samaritan. For instance, if a Good Samaritan undertakes an intervention for which he or she does not have the requisite level of skill the likelihood and, therefore, the foreseeability of further injury occurring is greater.

38         The Commission notes that some damage may be actionable even where it is not

readily foreseeable, as with the operation of the Egg-Shell Skull Rule. See Burke v John Paul & Co Ltd [1967] IR 227.

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3.36          It must also be borne in mind that there may be situations in which injury is an inevitable consequence. The Commission notes that it is uncertain whether a Good Samaritan would be held liable for an injury that he or she foresaw where that injury was either necessary to or unavoidable in the overall rescue operation. In addition, the Commission notes that, further to the issue of proximity, the Good Samaritan may be in a better position to anticipate injury where the reliance is of a detrimental, as opposed to a non-detrimental, nature. The Commission accepts, however, that this argument is quite theoretical in nature and would be unlikely to apply to the actual Good Samaritan situation.

3.37          Having considered the extent to which these circumstances coincide, it may of course be the case that a duty of care cannot be imposed on the basis that it would not be “just and reasonable” to do. On the one hand, the Good Samaritan is said to be a person who is performing activities for the benefit of society and, therefore, should be encouraged. To impose liability on a Good Samaritan might have the effect of deterring Good Samaritans from intervening in future cases. A finding for the stranger would create a precedent for claims against Good Samaritans, a class of person that, typically, does not have the benefit of the protections such as advice, training and insurance policies, available to those involved in organisations. On the other hand, the law should not unduly prejudice the stranger who, by virtue of the predicament in which he or she found himself or herself, may be particularly vulnerable. Furthermore, it is asserted that a finding of liability may dissuade individuals, such as those who would otherwise be willing to intervene in a rescue situation, from undertaking dangerous activities. This would, thereby, create an environment in which imperilled individuals would have no choice but to fend for themselves. The Commission considers that each of these arguments merits attention.

3.38          On the basis of the foregoing analysis, the Commission concludes that there is nothing to prevent a Good Samaritan from being subject to a duty of care.    In this regard, it has been shown that the general principles of negligence actually point towards the imposition of a duty of care in certain circumstances, in particular where the Good Samaritan is a person with a clear degree of medical skill. Of course, in reality the Commission accepts that the likelihood of such liability being imposed is remote, given that a Good Samaritan is often actually engaged in saving life, and that the social utility of the intervention will militate against liability because it would not be “just and reasonable” to do so.

(2)             Standard of Care

3.39          The Commission therefore turns to consider the standard of care to be applied to a Good Samaritan, where it has been found that he or she owes the stranger a duty of care. The Commission notes that the standard of care will vary with the individual Good Samaritan, depending on the Good Samaritan‟s

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level or lack of skill. In analysing the standard of care, the courts will look firstly at the probability of harm and the gravity of the threatened injury. The Commission considers these to be difficult concepts to apply to the scenario involving the Good Samaritan. The Good Samaritan will normally intervene in a situation where the independent risk of harm occurring exists, even if this is, in reality, unusual.

3.40          The Commission considers that where the Good Samaritan undertakes a direct and physical intervention, the probability of harm occurring is clearly higher. So too is the risk of serious injury. On the other hand, where a higher level of skill is possessed by the Good Samaritan, it might be expected that he or she will be better able to assess the situation and decide on the most appropriate response. The Commission emphasises, however, that irrespective of skill the Good Samaritan will not always be privy to the circumstances which have given rise to the stranger‟s predicament or the nature and extent of the stranger‟s injury. It might not, therefore, be fair to hold the Good Samaritan liable for doing something which he or she might not have done had he or she been fully aware of the circumstances. Furthermore, in assessing the gravity of the threatened injury, the court will need to balance the risk posed by the Good Samaritan‟s intervention (more likely, as already noted, to result in a life saved through CPR or AEDs) against the risk posed by the independently created emergency situation (more likely to result in death without an intervention).

3.41           An examination of the cost of eliminating the risk does not fit very well in the Good Samaritan analysis given the spontaneous and one-off nature of such an intervention. The Commission considers that a Good Samaritan will rarely, if ever, be in a position to implement risk management measures in advance of an intervention. However, the Good Samaritan may be expected to consider the various interventions that are open to him or her upon coming across the stranger‟s predicament and to choose the option which is least risk-associated. The Commission notes that the Road Safety Authority‟s Rules of the Road39 advise persons to refrain from rendering physical assistance where it is safer to alert the emergency services. However, this analysis could be problematic where direct, physical intervention is urgently required. The Commission notes that it is important to recall the other side of the cost argument which relates to the potential cost to society should Good Samaritans be deterred from intervening in emergency situations.

3.42          The most important concept in the analysis of the standard of care to be applied to the Good Samaritan is the social utility of his or her conduct in intervening to assist a stranger in need. In the context of social utility, the Commission notes that saving a life may justify taking risks which would not be

39         Available at www.rsa.ie

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permissible in the case of ordinary commercial enterprise. This is particularly relevant when one considers, as already noted, that the Good Samaritan‟s intervention in many cases may mean the difference between life and death. Furthermore, the Commission points to the enormous social benefit in encouraging those with specialist life-saving skills to intervene.

3.43          Based on this analysis, the Commission considers that numerous standards may be set for the Good Samaritan, based on the level of knowledge and skill of the particular individual, at the risk of not paying adequate regard to the social utility of the Good Samaritan‟s intervention. In the Commission‟s view, the key is to apply a standard that will appreciate the various skills that may be possessed by Good Samaritans while also acknowledging the social utility of the Good Samaritan‟s intervention. The Commission returns to the precise scope of this standard of care in Chapter 4.

D              Voluntary Rescuers

(1)             Duty of Care

3.44          Voluntary rescuers and their organisations play a lead role in terms of major emergency management.40 In particular, voluntary rescuers support the work of statutory bodies, both by complementing existing services and by providing additional services. The Commission underlines the importance of considering this role and the extent to which it benefits society when making any recommendations.

3.45          Applying the general principles of negligence, the Commission notes that there is little to preclude voluntary rescuers from coming under a duty of care. First, similar to the Good Samaritan, a relationship of proximity is likely to be established once the voluntary rescuer intervenes. As with the Good Samaritan, the voluntary rescuer may make an undertaking upon which the recipient of the service may rely. The voluntary rescuer‟s undertaking, or intervention, may take the form of a promise or a voluntary act. For example, a promise to intervene may arise where the voluntary rescuer, like the Good Samaritan, agrees to respond to the predicament of a particular individual.41

3.46          A voluntary act of the voluntary rescuer may be an act in favour of the individual in need or, indeed, any act done on behalf of the voluntary

40         Report of the Inter-Agency Review Working Group on Major Emergency Management (supported by the Department of Environment, Heritage and Local Government Review Project Team 12 September 2006).

41         In the English case Kent v Griffiths [2000] 2 All ER 474, a statutory ambulance service provider was held to owe a duty of care, once it agreed to respond to an emergency.

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organisation. Like the Good Samaritan, the voluntary rescuer may intervene indirectly in the rescue by alerting the individual to a danger or advising him or her on how to remove themselves from the danger. Alternatively, the voluntary rescuer may become directly involved by physically intervening. The Commission also appreciates that there may be incidents to which the voluntary rescuer is unable to provide an adequate response. In such cases the voluntary rescuer may request outside assistance, for instance, from the emergency services or colleagues from the organisation who have different skills. The voluntary rescuer, however, may be expected to secure the scene temporarily or to assist the individual until the emergency services etc arrive. Again, the more invasive the intervention undertaken by the voluntary rescuer, the greater is the potential risk of injury.

3.47          Reasonable reliance may also be an element of the scenario involving the voluntary rescuer.42 In this regard the individual in need may change his or her position relying on the voluntary rescuer‟s intervention. In fact, the individual may be more likely to rely on the expertise of a voluntary rescuer than on that of an average Good Samaritan. While the Commission recalls that what might be considered objectively reasonable in a rescue situation may be a far cry from what is ordinarily termed objectively reasonable, it notes that reliance on the intervention of a skilled voluntary rescuer could rarely be considered unreasonable. As already noted, the voluntary rescuer commits a certain amount of time to attaining a particular level of skill and thus indicates that he or she is willing and able to respond to an accident or emergency should it arise.43 The Commission appreciates, however, that voluntary rescuers neither have, nor hold themselves out as having, unlimited skills and, thus, only a certain level of reliance may be considered reasonable.

3.48          Once again, the more physical or invasive the action of the voluntary rescuer, the more likely it is that the individual will rely directly on him or her. Where a voluntary rescuer decides to give advice to the individual, the Commission believes that it is more likely that the individual will rely to some extent on his or her own counsel. Where the voluntary rescuer calls for outside assistance, it is likely that the individual will transfer his or her reliance from the voluntary rescuer to whoever takes over the rescue.

3.49          Furthermore, the individual may find that he or she has no choice but to rely on the voluntary rescuer‟s intervention. This may be the case in

42         Hedley, Byrne & Co Ltd. v Heller & Partners Ltd. [1964] AC 465 cited with approval by the High Court in Securities Trust Ltd. v Hugh Moore & Alexander Ltd. [1964] IR 417.

43         See Barnett v Chelsea & Kensington Management Committee [1969] 1 QB 428 cited in McMahon and Binchy Law of Torts (3rd ed Butterworths 2000) at 62.

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scenarios where there is a lack of comparable alternatives or the individual is, for some reason, incapable of choosing. Certainly, by virtue of his or her skill and the reputation of his or her organisation, the voluntary rescuer may be in a stronger position to assert control over a rescue situation than any other potential intervener who might qualify as a Good Samaritan. In many cases, the voluntary rescue organisation will have strategically placed itself at high risk locations, thereby representing that it is willing to intervene in any rescue situations which might arise in that particular location. Moreover, as voluntary rescue organisations often supplement the services of statutory bodies it may, in fact, be the only or most skilled rescue option available.

3.50          It should also be remembered that the individual may be in a particularly precarious situation, be ill, injured or unconscious. In such circumstances, he or she may be incapable of choosing between the voluntary rescuer‟s intervention and any alternatives. As a result, it might be more accurate to describe the individual as being in a state of “dependence” rather than “reliance”. In tandem with this, it should also be noted that the voluntary rescuer‟s particular expertise means that he or she is exceptionally well-placed to assert control over the rescue situation. In this regard, the voluntary rescuer may either assert total control over the operation, conducting the rescue from start to finish, or, where responsibility for completing the rescue rests with an outside party, partial control to the extent that the voluntary rescuer temporarily secures the scene or abates the risk. Given the likelihood that power will be distributed in such a way, the Commission believes that the relationship arising in situations involving the voluntary rescuer is more likely to be one of dependence and control than reliance and undertaking.

3.51           Regarding the issue of foreseeability, the Commission considers that, as the voluntary rescuer‟s intervention is likely to be direct and physical, injury to the individual may be a foreseeable risk in most cases. However, given the training and experience of the voluntary rescuer, the Commission observes that a greater level of knowledge and skill might be expected of the voluntary rescuer. In particular, it may be noted that the ability of the voluntary rescuer to assess the situation and to tailor his or her conduct appropriately is more significant than in the case of the Good Samaritan. Thus, the reasonable voluntary rescuer may be in a better position to foresee the potential risks inherent in a situation or, indeed, in the particular intervention proposed. Furthermore, it may be expected that the expertise of the voluntary rescuer will encompass an ability to determine and employ the appropriate precautions to avoid such risks. As a result, it may be asserted that there a voluntary rescuer intervenes there is less chance that the situation will be inadvertently exacerbated or that any existing injury will be aggravated.

3.52          Foreseeability, the Commission notes, may also depend on the type of intervention undertaken and the level of skill possessed by the defendant with

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regard to that type of intervention. The Commission appreciates that although a voluntary rescuer may be trained to undertake a variety of interventions, some interventions may go beyond his or her skill. Where the voluntary rescuer undertakes to do something for which he or she is not adequately qualified, it might be asserted that he or she should foresee that there is a greater chance of harm. However, like the Good Samaritan, the Commission accepts that there are particular situations where the voluntary rescuer may feel that he or she has no choice but to intervene, particularly where there is a threat to life.

3.53          The    Commission    notes    that    similar    inferences,    regarding foreseeability, may be made on the basis of the relationship arising in the situation involving the voluntary rescuer as were made on the basis of the relationship arising in the situation involving the Good Samaritan. Where the relationship is one of undertaking and reliance, for instance, harm may be a more foreseeable consequence where the reliance is detrimental. Where the relationship is one of control and dependence, on the other hand, a greater risk may exist that the situation or any existing injuries will be aggravated. Thus, in such circumstances, harm may be a more foreseeable result.

3.54          The Commission considers that it is only at the “just and reasonable” stage of the analysis that the question arises as to whether a duty of care should be imposed on the voluntary rescuer. Policy factors that could be taken into account include the fact that voluntary rescuers and their organisations undertake a multitude of activities for the benefit of society. In this regard, it should be noted that voluntary rescuers not only complement and supplement the services provided by statutory bodies they also undertake the hugely important task of saving lives. Furthermore, by providing a presence to guard against accidents and emergencies, voluntary rescuers and their organisations make possible the holding of large-scale events such as concerts and festivals, which are themselves for the benefit of society. In a more general, but no less significant, way voluntary rescue organisations benefit society by providing a forum for members of the public to interact and to develop skills. Given the various ways in which voluntary rescuers and their organisations benefit society, therefore, the Commission considers that the only just and reasonable conclusion to draw, in many situations, would be that a duty of care should not be imposed.

3.55          The Commission is also concerned that the imposition of a duty of care on voluntary rescuers may have a particularly harmful effect on their activities.    A rescue, by definition, involves some element of danger and, therefore, a risk of liability. The voluntary rescuer who intervenes on a regular basis may, as a result, be more exposed to this risk of liability than the Good Samaritan who intervenes on a one-off basis. The imposition of a duty of care on the voluntary rescuer may, therefore, deter individuals from becoming involved in the activities of voluntary rescue organisations. Furthermore, the

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Commission observes that a finding of liability may also create a precedent for future claims against voluntary rescuers who, by virtue of their activities, would be relatively easy targets. Although members of voluntary rescue organisations may have a number of protections available to them in the form of insurance cover, training and vicarious liability, the cost of litigation and loaded insurance premiums may place an inordinate financial burden on their organisations. This burden may prove to be of critical proportions for those organisations which depend, for their survival, on charitable donations. The potentially devastating effects that this would entail for voluntary rescues might include forcing the voluntary rescue organisation to reduce the number of members it engages or level of activities it undertakes or, at worst, withdraw completely from the field.

3.56          The Commission notes that while the activities of voluntary rescuers should be encouraged there is also the argument that because the service provided is rescue leniency in respect of the duty of care may not be appropriate. The Commission points out that, if this is the case, voluntary rescuers and their organisations will most likely be covered by insurance, which as already noted has become more readily available for voluntary bodies in Ireland in recent years.44 Therefore, the Commission appreciates that, while there are very persuasive policy considerations against imposing a duty of care on voluntary rescuers, such persons do advertise their willingness and ability to assist in emergency situations. Thus, it may be argued that the voluntary rescuer, to some extent, assumes responsibility for rescuing and, therefore, assumes a duty of care.

(2)             Standard of Care

3.57          As the Commission pointed out in the Consultation Paper,45 there is some uncertainty regarding the standard of care to be applied to the voluntary rescuer. One argument is that the standard should be set according to the individual‟s status as a voluntary rescuer. This, however, does not recognise the particular skills of certain volunteers, such as those who may be professional rescuers or medical professionals. The standard could instead be set according to the particular voluntary rescuer‟s level of knowledge or skill. As pointed out in the case of the Good Samaritan, this may result in the creation of many different standards of care. Bearing in mind the level of training that the voluntary rescuer has undertaken, however, the Commission notes that a higher standard of care might be expected of the voluntary rescuer than the average Good Samaritan. Thus, the appropriate standard might relate to the standard applicable to the reasonable rescuer in the circumstances, taking into account the general and approved practice of the particular voluntary group.

44         See paragraphs 1.10 and 1.29, above.

45         LRC CP 47-2007 at paragraph 3.98.

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However, where the particular voluntary rescuer has further professional qualifications or training, the question could arise as to whether the appropriate standard should refer to the practice of the voluntary group or that of the particular profession.46 In either event, the Commission notes that the determination of the appropriate standard of care requires an examination of four elements: the probability of harm, the gravity of the threatened injury, the cost of eliminating the risk and the social benefit of the activity.

3.58          As to probability of harm, as with the Good Samaritan the voluntary rescuer will generally intervene in situations where there is an independently arising risk of harm or injury. The probability of harm occurring may, thus, be high as any intervention may easily exacerbate the prevailing conditions or aggravate any existing injuries. In determining the most appropriate course of action, the voluntary rescuer may be required to weigh up the risk independently arising against the risk posed by his or her proposed intervention. Voluntary rescuers may be more inclined to undertake more direct and physical interventions - either because they are trained to do so or because it is the best available course of action - to which a greater risk of harm, and sometimes serious harm, may be associated. The Commission observes, however, that the voluntary rescuer is likely to encounter some situations where injury is an inevitable consequence irrespective of the course of action undertaken or the precautions taken.

3.59          The Commission notes, however, that the voluntary rescuer who has benefitted from training may be in a particularly strong position to deal with a rescue situation. In this regard, the voluntary rescuer may be better able to assess the situation for existing and potential dangers and to determine the most appropriate method of intervening. Thus, the risk posed by his or her intervention is likely to be minimal. Furthermore, the voluntary rescuer will usually have the benefit of appropriate equipment and the support of his or her team. In any event, given that the voluntary rescuer anticipates, to some extent, that a rescue situation will arise, he or she will usually have had adequate time to consider and prepare his or her response in advance. As this response may have been tried and tested before, it is likely that it will be a more polished response than any that could be offered by the average Good Samaritan.

3.60          Regarding the gravity of the threatened injury, the Commission notes that where the potential injury is great engaging in conduct that entails even the slightest risk, or failing to take steps to avert the risk, may constitute negligence.

46         For example, in the English case Condon v Basi [1985] 1 WLR 866 it was noted

that there is a different standard of care applicable to the amateur sporting participant than to the professional.

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In this regard, it is noted that the voluntary rescuer is not only likely to intervene in a situation where there is an independent risk of minor harm but also where there is an independent risk of serious harm. Any intervention could, therefore, result in the risk of such harm eventuating. As was noted above, the voluntary rescuer is more likely to engage in a direct and physical intervention, which carries more risk, than a more remote intervention. As against this, however, it must be noted that the voluntary rescuer has a greater capacity than the average Good Samaritan to improve the individual‟s predicament. Furthermore, while the voluntary rescuer might not be able to diagnose the exact nature or severity of any existing or potential injury, it is likely that he or she has been drilled to proceed cautiously where there is a real risk of serious harm. In this regard, the Commission observes that the voluntary rescuer‟s training and experience is likely to have prepared him or her to deal situations where it is necessary to either abate the risk or secure the scene until third party assistance arrives.

3.61           With reference to the cost of eliminating the risk, the Commission observes that courts have taken into account that it is impossible to make some work activities risk-free. In this regard, the Commission notes that voluntary rescue is an inherently dangerous and risk-laden activity. There are, however, certain steps which voluntary rescue organisations might be expected to take to reduce the risks. For example, voluntary rescue organisations may provide training and refresher courses to ensure that their members develop skills, which are then kept up to date. They may also implement procedures to ensure that appropriate candidates are selected for membership. Importantly, voluntary rescue organisations should ensure that voluntary rescuers have adequate equipment and support at their disposal. Insofar as the rescue situation itself is concerned, it has already been noted that some interventions will naturally involve more risk than others. While it is preferable that a course of conduct entailing the least amount of risk is undertaken, this may not be possible in all situations, especially where time is of the essence. Where the risk of litigation is at issue, the Commission notes that voluntary organisations may purchase insurance, and indeed this has been made increasingly available in Ireland.47

3.62          The final element of the standard of care analysis relates to social utility. The Commission notes that the social utility of the voluntary rescuer‟s activities, particularly in the context of saving lives and preventing injury, must be taken into account when determining whether he or she has fallen below the reasonable standard. McMahon and Binchy note, however, that professional persons responding to emergency situations do not benefit from a blanket

47         See paragraphs 1.19 and 1.30, above.

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immunity.48 Regarding fire fighters, they note that while it is well established that the court should take into account the social utility of rescue when assessing the question of negligence of emergency vehicles, it has been held that fire fighters must still exercise due care. In the English Court of Appeal decision Daborn v Bath Tramways Motor Co Ltd,49 which concerned the standard of care to be exercised by ambulance drivers during World War II (1939-1945) in England, Asquith LJ stated:

the standard of reasonable care is that which is reasonably to be demanded in the circumstances. A relevant circumstance to take into account may be the importance of the end to be served by behaving in this way or in that… The purpose to be served, if sufficiently important, justifies the assumption of abnormal risk… In considering whether reasonable care has been observed, one must balance the risk against the consequences of not assuming that risk.

3.63          The English Court of Appeal held in that case that the driver of a left-hand drive ambulance was not negligent when she did not give the signals that would otherwise have been required. The Court concluded that to impose such an obligation on the driver would have been to demand “too high and an unreasonable standard of care”, when the efficient use of all such vehicles was necessary during war time.

3.64          By contrast, in the English case Watt v Hertfordshire County Council50 Denning LJ stated that:

fire engines, ambulances and doctors‟ cars should not shoot past the traffic lights when they show a red light. That is because the risk is too great to warrant the incurring of the danger. It is always a question of balancing the risk against the end.”

3.65          The social utility of the voluntary rescuer‟s activity goes beyond the specific rescue situation. The voluntary rescuer provides a service for the benefit of society, by complimenting and providing additional services to those offered by statutory bodies. Without the voluntary rescuer, then, there would either be an insufficient service or no service at all. Furthermore, the service is provided against the background of adequate instruction, training and experience. Thus, it may be asserted that there is less risk associated with an intervention by a voluntary rescuer. So, because of the voluntary activity of the

48         McMahon and Binchy, Law of Torts (3rd edition Butterworths 2000) at paragraphs 15.53 and 26.36.

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