Whilst not a binding precedent in Australia, the case of Carter v Reese  2014-Ohio-5395 will, I’m sure, be of interest to readers of this blog, particularly following the discussion in Good Samaritan legislation and scope of practice (March 27, 2015).

The plaintiff, Carter was a truck driver who become pinned between his truck and a loading dock.  He yelled and banged on the doors of the loading dock in order to get someone’s attention but reported that he was not in pain; the inference is that although he was trapped, he was not injured.   A man approached and offered to help.  Carter “said to him, “get in my truck, move it forward about a foot, * * * but whatever you do, don’t put it in reverse”.”   The Good Samaritan, Reese, attempted to move the vehicle forward but did in fact move it backward, crushing Carter’s leg.  Reese range 911 and then left the scene.  When an ambulance arrived another person moved the truck and Carter was transported to hospital.  The result of the incident was that Carter’s leg was amputated.

Ultimately Reese was identified as the Good Samaritan and Carter and his wife sued over his injuries.  The Butler County Common Pleas Court dismissed the case finding that Reese was protected by the Ohio Good Samaritan legislation.  Carter appealed to the Ohio Court of Appeals.

The relevant part of the Ohio Good Samaritan legislation says:

No person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency … for acts performed at the scene of such emergency, unless such acts constitute willful or wanton misconduct.

The plaintiff argued that this act only applied to medical professionals providing assistance at a medical emergency.  When he was trapped, but not injured, this was not a ‘medical emergency’ and so the Act should not apply.  The Court of Appeals (Hendrickson and Piper JJ) agreed; they said (at [15]) that the Act:

… applies to any person, health care professional or otherwise, who administers “emergency care,” medical or otherwise, at the scene of an emergency and who meets the remaining requirements of the statute, e.g., their acts do not constitute willful or wanton misconduct..

The court was satisfied that ‘An emergency clearly exists where a man’s leg is pinned between his truck and a loading dock, yelling so loud for help he is heard across the street’ and that Reese’s ‘actions in trying to move the semi-truck constituted “emergency care”’ ([25]).

The interesting issue is the apparent negligence of Reese.  That is he jumped into the truck and attempted to move it forward even though he later admitted he had no idea how to drive such a vehicle.  Even if we accept, as I think we safely can, that trying to drive a very large tractor/trailer outfit when the driver knows that they don’t know how to operate the truck and that a person is trapped behind it, and therefore very vulnerable should the driver get it wrong is negligent, that was not enough.  The statute moved to shield the Good Samaritan from liability unless there was ‘wilful or wanton misconduct’.   As the Court of Appeals said (at [31]):

… it was not sufficient for appellant to show that appellee was negligent in trying to rescue him once he saw that appellant’s leg was pinned between the semi-truck and the loading dock. Instead, appellant was required to show that appellee acted in a “willful or wanton” manner in trying to rescue him…  there is no evidence in the record to show that there is a genuine issue of material fact on whether appellee’s conduct was willful or wanton.

The Ohio court said (at [32]) ‘wilful misconduct’ is ‘’an intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to safety, or purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury.'”  At [33] they said:

“Wanton misconduct” is more than mere negligence; it is “the failure to exercise any care whatsoever.  Mere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor. Such perversity must be under such conditions that the actor must be conscious that his conduct will in all probability result in injury.”

Ringland PJ dissented and would have held that the statute, when read in context, only protected a person ‘providing emergency medical care’([39]).

The Australian Context

There are some similarities and differences between the US/Ohio and Australian situation.

First Australia has had Good Samaritan legislation since the Voluntary Aid in Emergency Act 1973 (Qld) (now repealed).   My research has never been able to find a case where that legislation, or any of the modern versions, have ever been relied upon.  That is, no Australian Good Samaritan has ever been sued, at least not to the point where a judge got to rule on any issue.    That’s clearly not the case in the US as this case shows, as not only was this Good Samaritan sued but the Court could rely on decisions from other cases to aid them in their interpretation of the statute.  It probably comes as no surprise to Australians that in America Good Samaritans are sued, but in Australia they are not.

Second, when considering whether or not the Act only applied to medical professionals, the Ohio court said (at [14], references omitted):

Every state has enacted some type of Good Samaritan statute.  The scope of the immunity protection provided in a Good Samaritan statute varies from jurisdiction to jurisdiction. The Good Samaritan statutes in a substantial majority of jurisdictions (38) protect any layperson who can meet the statutory requirements. However, a sizeable minority of jurisdictions (14) excludes laypersons from the class of persons protected under their Good Samaritan statutes and extends immunity protection only to certain classes of professionals, including physicians, nurses and emergency medical professionals.

That is also true in Australia.  To rephrase that that statement to put it in the Australian context one would say:

Every state has enacted some type of Good Samaritan statute.  The scope of the immunity protection provided in a Good Samaritan statute varies from jurisdiction to jurisdiction. The Good Samaritan statutes in the majority of jurisdictions (7) protect any layperson who can meet the statutory requirements. However, a minority of jurisdictions (1) … extends immunity protection only to certain classes of professionals, including physicians, nurses and emergency medical professionals.

Every State but Queensland extends protection to anyone (see Civil Laws (Wrongs) Act 2002 (ACT) s 5Civil Liability Act 2002 (NSW) s 57Personal Injuries (Liabilities and Damages) Act (NT) s 8Civil Liability Act 1936 (SA) s 74Civil Liability Act 2002 (Tas) s 35BWrongs Act 1958 (Vic) s 31BCivil Liability Act 2002 (WA) s 5AD).  In Queensland, the Law Reform Act 1995 (Qld) s 16 (which replaced the Voluntary Aid in Emergency Act 1973) extends protection only to medical practitioners, nurses and members of listed organisations only.

Whilst the Australia legislation is, generally intended to apply to the provision of emergency medical care or first aid it could, in most states, be extended to a similar situation.

In the Northern Territory and South Australia, ‘emergency assistance’ means ‘emergency medical assistance’ or ‘any other form of assistance to a person whose life or safety is endangered in a situation of emergency’.   Carter’s life may not have been endangered where he was trapped, but not injured, nor, presumably, was it unsafe for him whilst the truck remained parked as it was.  It was the actions of Reese that were unsafe (given he didn’t know how to operate the truck) and put Carter’s life in danger, but how much can we expect a Good Samaritan to know and judge in these matters? He heard Carter yelling for help and might well have, and reasonably so, concluded that his life was in danger.  The question may arise, one day, whether the law in these jurisdictions requires actual danger or a genuine belief by the Good Samaritan that the person’s life or safety is endangered.

In the Australian Capital Territory, New South Wales, Tasmania and Victoria, a Good Samaritan provides assistance to a person who is, amongst other things, ‘at risk of being injured’ (ACT and NSW) or ‘apparently at risk of death or injury’ (Tas and Vic).   In the issue is whether the person is ‘injured or at risk of being injured’.  I would anticipate that a truck driver, pinned between a wall and his truck, is at ‘risk of being injured’ even if he is not at that time injured.  Again Carter may not have been injured but Reese may have believed he was apparently at risk of injury.  Again the question could arise whether what is required an actual or objective risk, or whether a genuine, good faith belief that the person is at risk is sufficient to trigger the protection.

The Western Australia legislation mirrors the Ohio Act and provides protection for a person ‘at the scene of an emergency’ who assists ‘a person in apparent need of emergency assistance’.   I would expect a WA court faced with similar facts to find that a person pinned against the wall by their truck is facing an emergency and attempting to move the truck is ‘emergency assistance’.

Finally the Ohio Act extended protection unless there was ‘willful or wanton misconduct’.  The Australian legislation requires that the assistance be delivered ‘in good faith’.  To quote from my earlier post (Good Samaritan legislation and scope of practice (March 27, 2015)):

The key is ‘good faith’. One could argue that undertaking action that you know you are not trained is not ‘good faith’ but I don’t believe that would be the outcome. The key case on good faith is Mid Density Developments Pty Limited v Rockdale Municipal Council [1993] FCA 408. This case involved a question of whether the council acted in good faith when giving advice in relation to a properties flood risk. In the course of their judgment Gummow, Hill and Drummond JJ said (at [24]):

His Honour found that the statutory concept of “good faith” in the performance of the functions in question, included two criteria. The first was that the act be done bona fide and not maliciously or to achieve an ulterior purpose. The second was that there be “a genuine attempt to perform the function correctly, that is to say that the function should not be performed without caring whether or not it be properly performed”.

With respect to the section in question they went on to say (at [34]) ‘The statutory concept of “good faith” with which the legislation in this case is concerned calls for more than honest ineptitude.’

Applying that reasoning to the good Samaritan provisions requires that the intervener is acting ‘not maliciously or to achieve an ulterior purpose’ so they’re acting to assist the injured person, not to steal their wallet or do them harm and it’s a genuine attempt not to harm the person, ie to do the right thing. So a person who is confident in the use of oxygen and who genuinely believes that oxygen is warranted in the best interest and to avert harm to the patient is acting in good faith when they administer that oxygen; or use the person’s epi-pen or help them with their ventolin, or do CPR or use an automatic defibrillator. The person who says ‘I always wanted to do a tracheostomy using a Swiss army knife and a pen (as in M*A*S*H Season 5 Episode 8, ‘Mulcahy’s War’) and now I can because I can’t be sued’ is not acting in good faith.

I would extend my reasoning to think that a person, faced with a man trapped between a loading dock and a trailer who is calling loudly for help, acts in ‘good faith’ when he or she tries to move the truck in response to that call for help and is doing so out of a genuine desire to relieve the trapped man’s distress.   As a famous American judge said (albeit in another context) ‘“The cry of distress is the summons to relief…’ (Wagner v International Railway Co 133 NE 437 (1921), 437-438 (Cardozo J)).    I wold expect, in Australia, that Carter’s ‘cry of distress’ summonsed Reese to action and even though his response was worse than ineffective, his actions were taken ‘in good faith’ just as the Ohio court found that they were not ‘wilful or wanton misconduct’.

The crucial lesson

In my earlier post (Good Samaritan legislation and scope of practice (March 27, 2015)) I was responding to a statement to the effect of ‘A person would receive no protections under the Good Samaritan Act if they go “beyond their qualifications’.   I argued there that this was not the law.  This case is an example that confirms that position.  Reese had no qualifications or experience in driving a truck, a prudent person may well have considered that moving a prime mover connected to a trailer that was pinning a man was something that they should not reasonably do.  Reese however, saw Carter’s distress and wanted to help.  He went beyond his qualifications and he made the situation much worse, but he was a Good Samaritan and exempt from liability.

If we consider just the idea of who or what is a Good Samaritan, there are differences between the American and Australian law, and there is room for an Australian judge to take a similar view to Ringland PJ, and conclude that the Good Samaritan legislation really only applies when providing medical care (and see here my own text, Emergency Law (4th ed, 2013) pp 70-74).  Even so I would expect that the Australian Acts (except in Queensland) could be applied to a similar situation.   That is the point of them, to encourage people to act without fear of liability.

Whether that is a good thing or not is debatable, and we can remember that the Ipp Reivew of the Law of Negligence recommended against Good Samaritan legislation on the basis that ‘A complete exemption from liability for rendering assistance in an emergency would tip the scales of personal responsibility too heavily in favour of interveners and against the interests of those requiring assistance’ (Ipp Review of the Law of Negligence, Final Report (Commonwealth of Australia, 2002), [7.21]-[7.24]) .

Some may think that this is an example where the law moved ‘too heavily in favour of interveners [Reese] and against the interests of those requiring assistance [Carter]’.

Motor Accidents Compensation

If that was all there was too the situation I would leave my comment there but there is in fact one crucial issue that is relevant here.  None of the Australia Good Samaritan provisions apply in the case of a motor vehicle accident.  That is because, in Australia, we have compulsory third party (CTP) insurance schemes (Road Transport (Third-Party Insurance) Act 2008 (ACT); Motor Accidents Act 1999 (NSW); Motor Accidents (Compensation) Act (NT); Motor Accidents Insurance Act 1994 (Qld); Motor Vehicles Act 1959 (SA) Part 4; Motor Accidents (Liabilities and Compensation) Act 1973 (Tas); Transport Accident Act 1986 (Vic) and Motor Vehicle (Third Party Insurance) Act 1943 (WA)).

Every vehicle (even unregistered vehicles) are covered by the CTP scheme to ensure that people who are injured in a motor vehicle accident receive care.  In theory they have to claim against the driver at fault but the CTP insurance indemnifies the driver so it is the insurer and not the driver who must pay.  If this case occurred in Australia, Reese would be indemnified but as Carter was injured due to the negligent operation of the truck, he would be entitled to compensation under the relevant jurisdiction’s motor accidents scheme.    As there is no personal liability attached to the driver at fault (unless the vehicle is unregistered or stolen, in which case the CTP insurer can seek to recover the compensation paid from the driver at fault) there is no need to extend Good Samaritan provisions to drivers.  To do so would deny people access to the pool of funds that we all contribute to in order to pay for the inevitable road toll .

Conclusion

I reported on this case as I thought it would interest the readership and it does give an example of the application of the Good Samaritan legislation.  The case demonstrates that mere negligence by a Good Samaritan, or going beyond one’s training, does not exclude Good Samaritan protection.  I think that is true in Australia as it is in Ohio.

If we were just looking at the terms of the Good Samaritan statutes I would anticipate an Australian Court could reach a conclusion similar to the Ohio court.   In that sense the case gives some guidance on the interpretation of the legislation and is relevant in considering cases where Good Samaritans are tempted to try to help but what they offer is beyond their training, competence and experience.

There is however one particular aspect of Australian Good Samaritan law that would be relevant if these facts happened in Australia, and that is the Good Samaritan laws don’t apply when the injury is caused by the negligent operation of a motor vehicle (as happened in this case).   In Australia, the CTP scheme exists to compensate those injured in a motor vehicle accident.  If this case happened in Australia Carter would be able to sue Reese, but it would be the CTP insurer that would be liable to meet the costs of running the case and paying the damages.  In Australia, extending Good Samaritan protection to Reese, would deny Carter’s access to the CTP pool and would give no benefit to Reese as he will be indemnified in any event.