This question relates to the installation of Automatic External Defibrillators in public places. My correspondent writes:
Hi Michael, was just on LinkedIn in and I saw this Q&A posted by a sales rep/manager for a company that manufactures AED’s. I attached a screen shot of the Q&A. I have my ideas on what this gentleman has put forward…basically I see this as scaring people and organisations into a sale! I’m all for AED’s in public locations and workplaces etc…but I see this as quiet an uneducated “comment” on the topic..
So in saying all that I pose the question is there any potential liability for an organisation not having an AED installed?
The screen shot appears below but do note that I have edited it (and the original question) to de-identify the company and the author of the answer.
I have largely answered the issues raised in an earlier post – see Making the installation of AED’s compulsory (September 27, 2015). In that post I noted ‘that there is very little relevant legislation’ so I’m not sure what this person means by the claim ‘state and local laws have gone to great lengths to encourage the placement of AEDs’. ‘Local Laws’ would mean council bylaws that are impossible to talk about (there are some 571 local authorities in Australia (http://regional.gov.au/local/) and no-one can find or know what all the local laws are). To refer to ‘state and local laws’ sounds awfully like a reference to US law where local authorities (cities and counties) have much greater legislative power than Australian councils.
It is true that there are no obvious state laws that would present a burden or ‘prevent anyone desiring to install AEDs from doing so’.
The controversial claim is that ‘AEDs have become so commonplace, the standard of care has now shifted creating a potential liability for organizations that do not have AEDs installed’. That is certainly NOT the case in Australia. In my earlier post I spoke about obligations under Work Health and Safety Laws. There I said:
For example, the Work Health and Safety Regulation 2011 (NSW) requires an employer to ensure that there is provision for first aid at the workplace. As with other aspects of this Act, this requires a risk assessment. Some workplaces such as shopping centres may well consider that there is a sufficient risk to warrant putting in a defibrillator.
But what this person is referring to when he says ‘the standard of care’ is the common law of negligence. Could a business be liable in negligence for not having an AED in place? My view is ‘no’ and in particular no if what is intended is an AED for use on members of the public rather than employees or in some cases clients – so this answer is not intended for a doctor’s surgery or nursing home, but what I’m talking about is public access AEDs.
Assume I operate a shopping centre – is it negligent not to have an AED? The person who might use it is a customer who has a sudden cardiac arrest in my centre. I don’t know who that will be and the risk that it will happen on any given day is very low, but with a sufficient number people passing through over a long enough period one couldn’t say the risk is ‘far fetched and fanciful’ (Wyong Shire v Shirt (1980) 146 CLR 40, 47 (Mason CJ)). But that doesn’t alone give rise to a duty of care. If a person has a sudden cardiac arrest the centre owner didn’t cause it. This is a person in need of assistance but there is no duty to rescue (Stuart v Kirkland-Veenstra  HCA 12). As Justices Crennan and Kiefel said (at ):
The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm… The law draws a distinction between the creation of, or the material increase of, a risk of harm to another person and the failure to prevent something one has not brought about…
The shopping centre has not created the risk of a heart attack. But people are invited into a shopping centre and there is no doubt people will become sick and injured and need assistance. The proprietors can’t sensibly ignore that so they will have to have first aid and emergency response procedures in place, not just for heart attacks but for all sudden illness. So let us assume for the sake of the argument that there is a relevant duty of care will it extend to the installation of an AED.
According to Mason CJ, assuming there is a relevant duty, it is up to the court to
… determine what a reasonable man would do by way of response to the risk. 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. (Wyong Shire v Shirt (1980) 146 CLR 40, 48).
The risk of a sudden cardiac arrest is as bad as it gets. Without assistance the person will die. What is the degree of probability that it will occur? It depends on your time frame, in my earlier post I said:
First I’m told that there are 30 000 sudden cardiac arrests a year in Australia. That would equate to about 82 per day. The chance that on any given day there will be a sudden cardiac arrest we can assume is 1. But the chance that it will happen in any given location, shopping centre or library is very small. To give a personal anecdote, I’ve been trained in first aid since I was 13 years old. I have never had to do CPR simply because I was the right person at the right spot at the right time. Putting an AED in a spot, even a high traffic spot like a train station or shopping centre does not mean it will ever be in the right spot.
So it’s a risk assessment. The more people coming through a public area the higher the risk that it might occur, but there could be no question that some public spaces will never see a sudden cardiac arrest so that they may install an AED that would never be used.
Expense; AEDs do cost. Again to quote my earlier post:
Having an AED does cost. Not only the purchase price but maintenance and training staff. Requiring premises to have an AED adds compliance costs, ie some process to ensure that the rules are being complied with.
There would be no significant ‘difficulty and inconvenience of taking alleviating action [ie installing an AED, nor] any other conflicting responsibilities’ that would stop their installation.
With some assumptions then we might argue that given a large public space, with lots of people, the risk that someone will have a sudden cardiac arrest is reasonably high, it will be catastrophic for them and the installation of an AED is neither complex nor does it conflict with other responsibilities. There are costs but they are probably not very much (see http://defibshop.com.au/product-category/defibrillators/ where prices seem to start at about $2200).
So will a centre be liable for not having one? No. Why not? Because even if someone has a sudden cardiac arrest and dies, their estate would have to argue that had there been a defibrillator it would have made a difference. But an AED on the wall won’t achieve anything.
Even if the AED is close to a person with a cardiac arrest it does not mean it will be used. Someone would have to know that the AED is there, or likely to be there. An untrained person may not know what an AED is let alone to look for one. Even if they can see it they are unlikely to know what it is or that it is something that could be used without training. The chance that there is an AED and a trained person at the right place at the right time is even lower.
The AED has to be used and even if it’s used it doesn’t guarantee success. People still die. So proving that the absence of the AED made the difference between life and death will be virtually impossible.
None of this is to suggest that they are not a good idea, but one can see why businesses may not be willing to invest and more importantly, why governments may not want to compel business to invest in the equipment that imposes a cost with limited chance that it will be used.
So the operator of a large urban shopping mall may well consider that investing in an AED is good practice, reflective of their general duty to have in place emergency procedures and they probably have emergency wardens who could be trained in the use of the AED. That’s a good idea but it doesn’t mean that there could be any claim in negligence if a person died in the centre and the AED could not be found or was not used.
The issue becomes clearer when you move down to smaller places with less public access. The term ‘Organizations’ [sic] covers a myriad of business with different risks. The owner of a small corner shop will probably never have someone have a cardiac arrest in their store. The statement ‘the standard of care has now shifted creating a potential liability for organizations that do not have AEDs installed’ is just too broad and simply does not reflect Australian law. It may be true for some places, so your local Westfield may be remiss if they don’t have one or two, but saying that this would or could actually lead to a finding of negligence or liability is a very long stretch.