Good Samaritans

When I was a newly qualified outdoor leader I often came across other parties in the bush who were in trouble. I wanted to assist but was fearful of the implications for me getting involved in helping if something had gone wrong: could I be sued or prosecuted in some way? I did some homework and wrote this to clear it up for myself. It uses a few complex words and phrases, but made me feel very comfortable about helping others. I hope it makes you more likely to help someone too.

(While this page refers specifically to NSW legislation, the general vibe is similar across Australia.)

N.B.: This commentary doesn’t apply where you are an employee with a duty of care or a volunteer with a relationship to the party you are helping. In these cases other legislation applies like the WHS Act.

Nearly all Australian states and territories have in place good Samaritan legislation to ensure that people who step forward to provide emergency medical assistance are not held legally liable for their actions provided they act in good faith (in NSW this is the Civil Liability Act 2002).

The question that arises out of this legislation shifts from ‘did the intervener act reasonably in all the circumstances?’ to ‘did the intervener act in good faith?’

The Civil Liability Act 2002(NSW) s 57(1) 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.

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’ (s 56).

To be a good Samaritan the person has be

1) acting in good faith;

2) without expectation of payment or other reward

3) to assist a person who is

4) apparently injured or at risk of being injured.

The Act is intended to encourage people to help when help is needed.

The key is ‘good faith’.

The concept of “good faith” calls for more than honest ineptitude.

It 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 an Epipen for example and who genuinely believes that an epipen is warranted in the best interest and to avert harm to the patient is acting in good faith when they administer that epipen; or help them with their ventolin, or do CPR or use an automatic defibrillator or whatever.

On the other hand, 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.

It should be noted that whether or not one has a ticket or qualification to do something in no way determines whether or not one is negligent. A person who is unlicensed may be a perfectly safe and competent driver; a person with a licence may be a menace. Whether or not one holds a licence or certificate does not determine whether or not they are negligent in any particular case. In an negligence action the question would be ‘was the use of oxygen reasonable?’ and with the good Samaritan provision, was it done ‘in good faith?’

Conclusion

The good Samaritan provisions are intended to encourage people to act on the basis of some help is better than none and to reassure people that they would not be liable.  

The legislation is intended, in fact, to encourage action in the very circumstances where a person confident to intervene could do so, with the consensus being that to do something was better than doing nothing’.