This question came via a NSW SES members facebook page, but I repost it here with permission from the original contributor, who asked:
Are SES members covered by the Good Samaritans provisions of the Civil Liability Act 2002 (NSW)?
Also, what is the legal (not moral) obligation to render assistance if say passing (you have not been called officially) a motor vehicle accident
* if you are in uniform,
* not in uniform,
* driving a SES vehicle?
The Civil Liability Act 2002 (NSW) s 57 says:
(1) 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.
(2) This section does not affect the vicarious liability of any other person for the acts or omissions of the good samaritan.
For the purposes of s 57, a good Samaritan
… is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured. (Civil Liability Act 2002 (NSW) s 56).
If you are not in uniform, not on duty, just happen to observe or come across the accident, then you are under no legal duty to assist (Stuart v Kirkland-Veenstra (2009) 237 CLR 215). If you do assist there is no doubt the good Samaritan provisions will apply; that’s exactly the sort of circumstances where they are intended to apply. The legislature wants to encourage people, particularly people who may know what they are doing, to come forward and to do so in circumstances where, perhaps, they cannot enjoy protection from an agency like SES as they are not at that stage performing duty’s for the SES or other community organisation.
I don’t think the answer is the same if you are in uniform or driving an SES vehicle (and driving an SES vehicle is the equivalent of being ‘in’ uniform, you are ‘in’ a vehicle that clearly identifies you as the SES). If someone approaches an SES member who is uniform or in a marked SES vehicle and says ‘quick please help, there’s been an accident’ then I think they would expect the SES to assist. The person approaching the SES member is not coming to ask the particular volunteer, they are coming to ask the SES for help; and that’s the key, it’s not ‘you’ it’s the SES. The SES is one of the States’ emergency services with a number of obligations but more importantly a community expectation that a state emergency service (whether the SES, Fire and Rescue NSW, NSW RFS, NSW Police and the Ambulance Service of NSW) will step up to help in an emergency even if their help is to simply hold the fort until another more appropriate service gets there.
So does the SES (as opposed to you the individual) 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 the SES just because they are aware of an emergency.
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. In Electro Optics & West v NSW  ACTSC 184; (the litigation from the 2003 Canberra fires) Higgins CJ said (at -):
Similarly, whilst it would not be just or reasonable to impose a general duty upon persons to rescue another in distress, a distinction may be observed in the role of those who, by profession, training or statutory role assume and hold out a preparedness to respond to those in distress. For example, police, lifeguards, medical practitioners and, relevantly, fire fighters.
That genesis for a duty of care is illustrated by the case of Lowns v Woods (1996) Aust Torts Reports 81-376. A medical practitioner was approached to come to the aid of a child, not a patient of his, who was fitting. He refused to assist unless the child was brought to his surgery.
At 63 155, President Kirby (as he then was) affirmed that a medical practitioner, by reason of skill, training and professional obligation, had a duty to assist going beyond that imposed on an ordinary citizen.
In my view, the same would be the case in respect of trained rescuers who hold themselves out as skilled, willing and able to assist (see the discussion in N Gray and J Edelman, “Developing the Law of Omissions: A Common Law Duty to Rescue?” (1998) 6 Torts Law Journal 240).
and later [at 334]:
Indeed, in my view, the case of Capital & Counties plc v Hampshire County Council and the general view that police and fire services owe no duty to respond to persons in danger where they are trained and able safely to respond is clearly inconsistent with public expectations and the intent shown by the legislative provisions imposing positive duties on such services to protect the public.
Whilst members of the SES are volunteers they are still holding themselves out, and are held out by the State, ‘as skilled, willing and able to assist’. (This was the decision of a single judge, is the subject of an appeal the ACT Court of Appeal and is not beyond criticism (see my post ‘Judgment in the litigation arising from the Canberra fires of 2003 – updated 19 December 2012’) but even so it shows that the position is at least arguable).
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. A relevant question would be what else is the SES doing. If the members are engaged in some task, they may not be able to meet a request for assistance but that too must be judged on the facts. If the team are tarping a roof and are told that there has been an accident nearby, then it would seem reasonable to expect them to climb down and do what they can. If, on the other hand, they are engaged in a flood rescue and the team on the river bank are supporting the swift water technicians in the river, then clearly they cannot leave their current task to assist at the accident (assuming that is in fact the case, and there are no extra members that can be spared to go and assist).
If the SES members are at a community fete, or just driving along the road and they observe an accident, I would expect that a court would be quite willing to find a duty to attend if there was no explanation forthcoming about why they did not. It may be argued that, for some reason, they do not have to attend as they have not been officially tasked to assist, but the error of that argument is obvious if you think that if someone had rung triple zero and they had been despatched to the case they would have had to attend and it can’t make any legal difference whether they responded in response to a triple zero call, or a knock on their door.
If the volunteers do attend they may be protected by the good Samaritan provision above, but I don’t actually think so. This section is not intended to cover an organisation such as the SES that is holding itself out as a professional and skilled emergency service. The SES is funded to provide emergency services and the volunteers are rewarded with 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).
Volunteers with the SES don’t need to rely on the Civil Liability Act as they are protected by the State Emergency Service Act 1989 (NSW) s 25. That section says ‘
(1) A matter or thing done by:
(a) a member of the State Emergency Service, including a member of an SES unit …
does not, if the matter or thing was done in good faith for the purpose of exercising the functions of or assisting the State Emergency Service … subject the member, officer or volunteer personally to any action, liability, claim or demand.
Arguably, if the SES unit involved is not an accredited road crash rescue unit they are not performing any of the functions listed in s 8 but they are still assisting the SES to meet its community expectations. If I am wrong and s 25 does not apply, then the Civil Liability Act 2002 (NSW) 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 people like SES volunteers and provides, effectively, the same protection as s 57 so the question of which section applies is probably academic.
So my summary thoughts are:
- There is no obligation upon a off duty volunteer to render assistance at a motor vehicle accident;
- It would be arguable that there is an obligation on the SES, through its volunteers to assist where the members are approached because they are SES members in uniform or a marked SES vehicle, and they are not engaged in other tasks that mean they cannot assist;
- If the volunteers do assist I do not think they are good Samaritans as intended by s 57 of the Civil Liability Act but I think they would be protected from personal liability by s 61 and/or the State Emergency Service Act 1989 (NSW) s 25. Even without those sections, if they were negligent, it is my view that the SES would be vicariously liable for any negligent action or omission.
For further discussion on these and related issues see:
- Insurance for first aiders (13 August 2014);
- Doctors as ‘good Samaritans’ – do I have to stop? (23 March 2014);
- Nurses as ‘good Samaritans’ – can I be liable if I do stop? (22 March 2014);
- Failure to attend by NSW Police and Ambulance (18 December 2013); and
- Who to treat? A question for St John first aiders (30 June 2013).