This question comes from a volunteer with St John Ambulance.  My correspondent asks:

A question I haven’t seen directly addressed concerns whether an on-duty volunteer has a positive duty to act and come to the aid of an injured person?  I raise this following on from your remarks in “RFS volunteers as roadside good Samaritans”.  You may wish to comment on a factual scenario as follows:

  • Suppose I am a member of a voluntary community organisation in Queensland – St John Ambulance.
  • St John Ambulance provides first aid services at an event, but is not paid to attend.  A donation may be requested – but not a fee for service “contract”.
  • I agree to perform the particular duty by signing up through the St John system.
  • I attend the duty wearing the St John Uniform.
  • I am approached by a injured person at the event seeking assistance.
  • Do I have a positive duty to act and attempt to assist the injured person? When? Limitations i.e. within my scope of training, etc?

Of course, in most cases the St John volunteer would render assistance – that is why they volunteer, etc.  But is their sufficient proximity to hold a tortious duty to act?  Public policy immunity?  Clearly, they have a duty of care once first aid is commenced.

I raise this as I’m not certain whether the proximity arguments in Lownes v Woods in establishing a duty to rescue would apply in the above factual matrix.  In addition, I note that Deane, J in Jaensch v Coffey made it clear that policy would also need to be considered in the formulation of a duty of care, saying “the notion of proximity is obviously inadequate to provide an automatic or rigid formula to determining liability”.

You may have touched on these issues in earlier articles, however, I was unable to find anything directly on point.  Where do you side is this ideological debate?  With the liberalist assertion that it is illegitimate to use the coercive power of the state to enforce positive duties of beneficence in terms of encroaching on individual liberty or the more philosophical utilitarian argument for a duty to rescue.

I don’t see this is part of the ideological debate about whether or not there is a duty to rescue at all – that debate revolves around the question of a duty to come to the aid of a stranger – a person with whom the potential rescuer has no other relationship. Some people do have a duty to ‘rescue’, the traditional relationships are teacher/student, gaoler/prisoner, doctor/patient etc. What made Lowns v Woods (1996) Aust Torts Reports 81-376 unique is that Dr Lowns was asked to travel to assist Patrick Woods even though the young boy was not and had never been his patient.

Jaensch v Coffey (1984) 155 CLR 549 was a case about negligent infliction of mental harm and trying to determine to whom a duty of care was owed, I don’t think it’s really relevant here for reasons I’ll give below.

What the scenario I’m asked to consider is where St John are on duty for an event organiser and a participant of the event seeks assistance. This is not about a duty to rescue a ‘stranger’ this is about performing the very duty one is there to do. If we go back to the start of negligence law and Donoghue v Stevenson [1932] AC 562 (the famous snail in the ginger beer case) it was said we owe a duty to those most likely to be affected by our acts or omissions. The issues of ‘proximity’ that my correspondent raised reflect debates in the cases over how to limit that duty as we can imagine many fanciful steps that would see liability extending forever. Courts know that can’t be how it would work so there are some outer limits, but in this case the people most directly affected are the event organiser and the potential patients.

The event organiser needs (or wants) first aid attendance at the event so there is an agreement with St John. If they don’t perform the duty they have agreed to do then the event organiser cannot provide the service agreed, or reasonably expected, by participants. If there is a first aid tent and someone come seeking assistance but first aiders decide not to offer treatment, the question becomes “who will be directly affected by that decision?” And the answer is clearly “the patient”.  It follows that the first aider has a duty to take care, when making their decision.   Generally speaking the only reasonable response will be to provide first aid to the patient in accordance with the first aiders training and given that is what they are there for.  Failure to provide treatment, unless there is good reason to support that decision, will be a breach of that duty.

The fact that St John may not receive a fee for their attendance does not mean there is no agreement.   St John agree to attend and provide first aid services and in return, if nothing else, the members get to go and do what they chose to volunteer for and for which they receive the reward that they perceive they get. The organiser relies on St John, if they thought St John were going to show up but not treat people they wouldn’t invite them and would get someone else to provide the first aid services. There is both an exchange of promises and reliance sufficient in my view to give rise to a contract.

So St John owe a duty to the organisers and the patients. That duty would arise both under the common law of negligence and under contract. I cannot see anyone seriously running the argument that the volunteer on duty did not have a duty to treat a person who attended the first aid post seeking assistance.

I don’t see this cases raises any of the issues raised by Lowns v Woods or Jaensch v Coffey. This is not about treating a stranger (see Who to treat? A question for St John first aiders (June 30, 2013)) or extending a duty to new areas. Here the presence of the duty to treat is axiomatic.  If one did want ot consider the arguments in Lowns v Woods (1996) Aust Torts Reports 81-376 in that case the doctor was approached at his surgery where he was ready to see patients but not yet seeing any patients. He was approached because he was a doctor and the patient was clearly physically close as the person seeking assistance had run to the surgery. If that was sufficient to establish liability it would be more so here. Here the first aider is approached at the place where they are holding themselves out to provide first aid, they are ready to see patients, the patient has come to them so they are close and unlike the doctor who had an appointment system to see his pre-existing patients, the St John volunteers are saying ‘we are here for everyone at this event’. If Dr Lowns owed a duty of care (which he did) then the St John volunteers in the circumstances described here do too; even more so.

Who would be liable? It might be argued that the volunteer has no duty as he or she is a volunteer, but St John would have the duty. St John agreed to provide first aiders and if the person who attended does not give first aid, St John has failed in its obligations. If I was the lawyer and if the patient could prove that the failure to administer first aid made their case worse you would run the case that both the volunteer and St John were negligent. If the volunteer was negligent St John would be vicariously liable and if St John were negligent they would be liable in their own right.

As for vicarious liability one might argue that the failure of the first aider meant they were ‘on a frolic of their own’ and there should be no vicarious liability but remember that the point of a negligence action is to ensure that the person who suffers a loss receives compensation. To allow St John ‘off the hook’ would deprive the injured person of an effective remedy. The person on duty is there representing St John in their uniform, their failure is St John’s failure so I don’t think a court would accept that St John should not carry the responsibility for their failure.

To conclude

In the scenario described there would be a duty to treat. This is not about a duty to treat a stranger. There is no law directly on point because a) first aiders don’t get sued, b) first aiders on duty one assumes actually treat people who come to them and c) the case would never get to court on that issue. The presence of a duty in that case is axiomatic, no-one could seriously argue there was no duty to treat.

In my view the first aid organisation (that for this example we’ve been calling St John) would be liable both in its own right for failing to provide the agreed service and for failing in its duty and also for negligence of its volunteer.