This post was on a St John Ambulance discussion site. The original author has kindly allowed me to repost it here to add some thoughts.
It’s a lovely sunny morning in Kickatinalong and whilst covering local Kickatinalong Football I would like to raise another question.
While covering Football there is another oval 200mtrs away that is used for soccer.
If some one from the soccer comes to the first aid post that is located on the football oval requesting for assistance on the soccer oval are we as members of St John covered / allowed to render assistance even though we have been booked in for coverage at the football??
I’m thinking not as we have not been booked into cover it…
This raises some interesting issues. First though we need to identify what the request for assistance actually is. If what’s meant is that the soccer organisers say ‘given you’re here can you keep an eye on our field too and come to help?’ then I think the answer is clearly ‘no’. One can’t easily monitor two playing fields and as noted, the football team has asked for assistance at their event. Let’s assume that is not the situation, rather let’s assume that the request is to assist with an actual injury (rather than a potential injury).
In this scenario there could of course be a wide spectrum, you may look over to the other playing field and see a player hobbling off the field, perhaps injured but in no way life threatening, alternatively you may see a player on the ground and a great deal of apparently distressed people suggesting that the player is seriously injured. Now the situation is different.
The first question is ‘is there a duty to go and help?’ Here was have to consider two legal persons, first the volunteer and then the St John Ambulance. The volunteer is not under any duty to go, they’re under no duty to be there in the first place, that is the nature of being a volunteer and they could chose to pack up and go home when they like.
Further, the person approaching the first aid post to ask for assistance is not coming to ask ‘Michael Eburn’ or anyone else at the post, they’re coming to ask the St John Ambulance, that is represented by the volunteer. Does St John Ambulance have a duty to respond? That is a more problematic question. On balance I would say ‘no’ but it is arguable. Cases like Stuart v Kirkland Veenstra (2009) 237 CLR 215 in the High Court of Australia have said that there is no general duty to rescue and that extends to emergency services, in that case the police. If the police were under no duty to assist a person sitting in a car contemplating suicide, then it would seem neither is St John Ambulance. On the other hand, Lowns v Woods  Aust Torts Reports 81-376 found a doctor was under a duty to attend when asked and Kent v Griffiths  QB 36 found the London Ambulance service also owed a duty to their patient that was breached when they took over 40 minutes to respond to an emergency call.
There are both similarities and differences. One of the critical issues in Woods v Lowns was there was nothing to stop the doctor attending, he was not then engaged with seeing patients. Here however the St John volunteers do have other commitments ie to the football even they are there to cover. In Kent v Griffiths it was the London Ambulance Service and they had said they were coming when the patient’s doctor made a 999 call. The London Ambulance Service provides an emergency service to all callers, St John does not, and the London ambulance service had said it’s crew were on their way when they were not. So these are points of difference. On the other hand those cases involved a health service who knew that there was a person in need of assistance which is similar to the situation where St John volunteers have been told that a person only 200m away needs their help. Like Lowns v Woods there would seem to be no barrier to attend, merely being engaged to watch a football match is not the same as actually being engaged in treating a patient. I would be willing to argue (whether I’d win is a different point) that where there is a first aid post, staffed and equipped, and someone points out that a person not more than 200m away needs assistance then St John Ambulance, via its volunteers, has a duty to attend.
What’s really likely to happen, and it may not be correct in principle but I think it’s correct, is that this gives a judge a door through which to walk if he or she wants. If the judge thinks there was no good reason to attend and it was obvious the person was in dire need, they are likely to find that there was a duty; if they think the plaintiff is suing for no good reason, they only had minor injuries and to try and now blame St John, then they are likely to say there was no duty.
For the sake of the argument, let us assume that there is a duty to attend. The question is what does the duty require? It requires the defendant to act as the reasonable defendant. Mason CJ said what that involved in the decision Wyong Shire v Shirt (1980) 146 CLR 40 at 48 where he said:
The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
Let us consider that in our context. There is a person on the other field, 200m away, who needs assistance. What is the magnitude of the risk? They may have only a very minor injury or it may be life threatening. What is the degree of probability of its occurrence? That is not an abstract question, but one that can be answered to some extent by observation. If you can see that a person is hobbling off the field, and someone says ‘my mate’s sprained his ankle, can you come have a look’ then you could infer that the risk of it being a life threatening or permanently disabling injury is pretty low. If on the other hand, you can see the person lying on the ground and bystanders commencing CPR, you know full well that the risk of death is very high. What is the ‘expense, difficulty and inconvenience’ in collecting the gear and walking the 200m to assist? Not very much. Finally what are the conflicting responsibilities? They are the responsibilities to the football club that booked the attendance and the promise to monitor their game, but they can still play on and if worse comes to worst and they have to stop their game whilst you are away, that is a small price to pay when the risk to the other person is so high.
One can compare this to other public duties. Assume you are on duty at an event at a locked stadium where it’s reported that a person’s been injured on the street outside the stadium. You can’t see the accident so you can’t begin to assess how bad it may be, it may be much harder to get you and the equipment out of the stadium and to the vague location of the accident, whilst you are away not only are the players but the large audience you are also there to serve left without first aid. There, depending on the resources available, it may be appropriate to simply call triple zero for the ambulance service, but if you had a team you would respond them.
To return to the given scenario, then, it would seem that its arguable there is an obligation to go, and failure to go if it appears that the injury is serious, could be negligent. So of course you go.
We can turn to some other issues such as insurance. I don’t have access to St John’s insurance policies so what follows is speculation. Even so I think we can infer one reason St John (or any organisation) has insurance is to protect itself, not just its volunteers. If it would or even could be negligent not to attend in the circumstances described, then the insurer would want you to go as that reduces the risk of liability. And the liability will belong to St John, not the volunteer and so the insurance that protects St John, would cover the liability.
Further, and again I’m speculating but I’m sure if St John provides insurance coverage for its volunteers it’s going to apply both on and off duty and would cover them treating anyone they are asked to treat, regardless of what oval they are on.
From the volunteer’s point of view, not attending may be problematic, but if they do attend they enjoy significant protection. If they attend they may be protected by Part 8 of the Civil Liability Act 2002 (NSW) the good Samaritan provision, but actually I don’t think so. Section 57 says:
A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.
Further, section 56 says a
“good samaritan” is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured.
This section is not intended to cover an organisation such as St John that is there holding itself out as professional and skilled in the area. St John gets significant reward for doing this work, that is it reason for being and it is a large albeit not for profit organisation. The volunteers also get rewards such as social standing, training, access to events etc. The status and standing that comes with being a volunteer can be quite significant (see Castle v Director General State Emergency Service  NSWCA 231). Further the medical crisis at a public event where St John is on duty is not, or should not be an emergency for them, that is what they are trained and there for, that is day to day business.
In my view the relevant protection is not in Part 8 but in Part 9 dealing with volunteers. (Having said that I’m sure Part 8 applies to St John volunteers who step forward in an emergency when they are not on duty, ie they are just passing by the person who has suddenly collapsed or a car accident or other emergency). Part 9 (s 61) says:
A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work: (a) organised by a community organisation …
That is clearly intended to apply to St John volunteers and provides the same protection as s 57 so the question of which section applies is probably academic.
It follows that if you attend to assist you are protected by either s 61 or s 57 or both but if you don’t attend, you can hardly saying you were acting in good faith to assist the injured person or to do the community work of St John. Of course you could argue that being on duty at the football, not treating the injured soccer player, was the ‘work’ of St John but taking a bigger picture of what the organisation is there to do I don’t think that argument would be persuasive. To personalise it, when I was a St John Cadet I made a promise to ‘help the suffering and the needy’ not ‘those that pay for my attendance’. I think the community work of St John is to render first aid to those in need.
So my summary thoughts are:
1. There is no obligation upon the volunteer to assist at the soccer oval;
2. It would be arguable that there is an obligation on St John ambulance, through its volunteers to assist (meaning the person whose condition is made worse by the failure to attend could sue St John, even if they could not sue the volunteer);
3. Depending on all the circumstances it could be a breach of duty not to assist, that is if it appears that the injury may be serious or life threatening, it is reasonably easy to get to and there is no equally serious obligation not to attend;
5. The liability, if any, would belong to St John as it is the organisation, not the individual, who is under a duty to attend.
6. A volunteer that is concerned about their legal risk is better off going to assist, than standing by to monitor the football game.
7. The answer may be different at different events, being on duty in secure premises, where it is harder to gauge what is going on outside, where it is more difficult to gain access, where response times would be delayed, where more people would be at risk, where the event being covered is more dangerous etc. Each case does depend on its facts.
30 June 2013