Volunteers and Good Samaritans
Dr Michael Eburn
Senior Fellow
Fenner School of Environment and Society
College of Medicine, Biology and Environment and
College of Law
The Australian National University
CANBERRA ACT 0200
Volunteers and Good Samaritans report that they fear they will be legally liable for
their actions even though they are acting without expectation of being paid, and for
altruistic motives.1 Even so, the Ipp Review of the Law of Negligence (‘the Ipp
Panel’) recommended against the creation of special legal rules for either volunteers
or good Samaritans. With respect to volunteers, that is people who do community
work on a voluntary basis,2 they said:
The Panel is not aware of any significant volume of negligence claims against
volunteers in relation to voluntary work, or that people are being discouraged from
doing voluntary work by the fear of incurring negligence liability. The Panel has
decided to make no recommendation to provide volunteers as such with protection
against negligence liability.3
With respect to good Samaritans, that is people who step forward to provide
assistance to another in a medical emergency,4 they said:
The Panel’s view is that because the emergency nature of the circumstances, and the
skills of the good Samaritan, are currently taken into account in determining the issue
of negligence, it is unnecessary and, indeed, undesirable to go further and to exempt
good Samaritans entirely from the possibility of being sued for negligence. 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. In our view, there are no compelling
arguments for such an exemption.5
1
2
3
4
5
David Ipp et al, Review of the Law of Negligence, Final Report (Commonwealth of Australia,
Canberra, 2002), 107, 170.
Ibid, 170.
Ibid.
Ibid, 107.
Ibid, 108.
Notwithstanding the panel’s findings, all Australian States and Territories have
moved to restrict the liability of these two classes of community minded citizens.6
Volunteers
For the purpose of the State and Territory legislative provisions, volunteers are people
who formally join or are affiliated with a community group, and who undertake work
for that group on a voluntary or unpaid basis.7 Under the Commonwealth Act legal
protection does not extend to community volunteers, only those people who are doing
volunteer work for the Commonwealth or a Commonwealth authority.8
In each case, a volunteer is not to be personally liable for their actions whilst
performing voluntary work for the community organisation to which they are
affiliated.9 There are exceptions and pre-conditions to the legal protection. To enjoy
legal protection the volunteer must:
1.
be acting in good faith;
2.
be acting within the scope of their agreed duties and procedures;
3.
not be affected by alcohol or drugs.10
The protection does not apply to actions for defamation11 or actions arising from
motor vehicle accidents where third party insurance and motor accident compensation
schemes apply.12 In New South Wales and Queensland the protection does not apply
6
7
8
9
10
11
12
Commonwealth Volunteers Protection Act 2003 (Cth); Civil Law (Wrongs) Act 2002 (ACT)
Parts 2.1 and 2.2; Civil Liability Act 2002 (NSW) ss 55-66; Personal Injuries (Liability and
Damages) Act 2003 (NT) ss 7 and 8; Civil Liability Act 2003 (Qld) ss 26; 38-44; Volunteers
Protection Act 2001 (SA) and Civil Liability Act 1936 (SA) s 74; Civil Liability Act 2002
(Tas) ss 44-49; Wrongs Act 1958 (Vic) ss 31A-31D; 34-42; Civil Liability Act 2002 (WA) ss
5AB-5AE and Volunteers and Food and other Donors (Protection from Liability) Act 2002
(WA).
Civil Law (Wrongs) Act 2002 (ACT) s 8; Civil Liability Act 2002 (NSW) s 61; Personal
Injuries (Liability and Damages) Act 2003 (NT) s 7; Civil Liability Act 2003 (Qld) s 39;
Volunteers Protection Act 2001 (SA) s 4; Civil Liability Act 2002 (Tas) s 47; Wrongs Act 1958
(Vic) s 37; Volunteers and Food and other Donors (Protection from Liability) Act 2002 (WA)
s 6.
Commonwealth Volunteers Protection Act 2003 (Cth) s 6.
Above n 6 and n 7.
Ibid; see also Civil Liability Act 2002 (NSW) ss 61-64; Civil Liability Act 2003 (Qld) ss 4042; Wrongs Act 1958 (Vic) s 38.
Ibid; see also Civil Liability Act 2002 (NSW) s 59.
Ibid; see also Civil Liability Act 2002 (NSW) ss 66; Personal Injuries (Liability and
Damages) Act 2003 (NT) s 4; Civil Liability Act 2003 (Qld) s 44; Wrongs Act 1958 (Vic) s 38.
where the volunteer is required to be covered by a compulsory insurance scheme13
(such as a volunteer doctor who is required to be insured for liability arising from his
or her professional practice.14)
Many and varied organisations depend on volunteers, these can range from special
interest community groups that are looking after their local park, local sporting teams
and schools as well as large government institutions. Governments depend on
volunteers to provide a range of core government services including volunteers in
health care, policing and in the emergency services. It follows that many volunteers
are in a position where their actions or inactions may have serious implications for
their clients or customers. Just because people are volunteers does not mean that they
should be able to undertake tasks without due care or that people harmed by the
negligence of volunteers should be denied compensation for reasons unconnected
with their injury, that is because the tortfeasor was a volunteer.
Having exempted volunteers from personal liability and appropriate solution to ensure
anyone injured by a volunteer is to ensure that an organisation that relies on
volunteers, that defines the volunteer’s duties and sets the procedures that the
volunteer is to follow, should be liable as the ‘respondent superior’.
The Ipp Panel
refused to make a recommendation that community organisations that use volunteers
should be vicariously liable for the torts of the volunteer. They said that a provision
that imposed liability upon a community organisation for which the volunteer worked
would:
... create an exception to the basic rule that vicarious liability attaches to the
relationship of employer and employee. Volunteers are not employees of the
organisations for which they work because there is no contract of service between
them. In some situations, the common law imposes vicarious liability for the
negligence of independent contractors. Likewise, voluntary workers are not
independent contractors of the community organisations for which they work because
there is no contract for services between them. The common law sometimes imposes
vicarious liability on the basis that the negligent person was an ‘agent’ of the person
held vicariously liable. Typically, voluntary workers would not be agents (in the
relevant sense) of community organisations for which they work.15
13
14
15
Civil Liability Act 2002 (NSW) s 65; Civil Liability Act 2003 (Qld) s 43.
Health Care Liability Act 2001 (NSW) s 19; Health Practitioner Regulation National Law Act
2009 (Qld) s 4 and Schedule s 129.
Above n 1.
Further, a recommendation to change the law to community organisations liable for
the negligence of their volunteers would ‘expand rather than limit liability for
negligence’ and ‘…would adversely affect the interests of not-for-profit community
organisations’.16 A recommendation to that effect would have been contrary to the
Committee’s terms of reference that directed them to:
… develop and evaluate options for exempting or limiting the liability of eligible notfor-profit organisations from damages claims for death or personal injury (other than
for intentional torts).17
The Panel accepted that, at common law, an organisation that relies on volunteers
would not be vicariously liable as the volunteer is neither employee nor agent, but that
question has not been judicially tested. It is conventional wisdom that a business is
vicariously liable for the torts of its employees but not independent contractors, but
that, historically, was related to the idea that employers could ‘control’ their
employees, but not independent contractors.18 In modern times employment
relationships have become more complex and the notion of vicarious liability has had
to develop. The concept of employment is no longer sufficient to explain when one
party will be vicariously liable for another.19 In Hollis v Vabu, the majority said:
… the Supreme Court of Canada saw two fundamental or major concerns as
underlying the imposition of vicarious liability. The first is the provision of a just and
practical remedy for the harm suffered as a result of the wrongs committed in the
course of the conduct of the defendant's enterprise. The second is the deterrence of
future harm, by the incentive given to employers to reduce the risk of accident, even
where there has been no negligence in the legal sense in the particular case giving rise
to the claim.
In general, under contemporary Australian conditions, the conduct by the defendant
of an enterprise in which persons are identified as representing that enterprise should
carry an obligation to third persons to bear the cost of injury or damage to them
which may fairly be said to be characteristic of the conduct of that enterprise. …20
Holding that organisations that rely on volunteers to conduct their activities are liable
for the negligence of the volunteers would ensure that people injured by the conduct
of volunteers have a practical remedy and would encourage the organisation to take
16
17
18
19
20
Ibid.
Ibid, x and 58.
Hollis v Vabu Pty Ltd [2001] HCA 44, [32]-[35]
Ibid, [43]-[45].
Ibid, [41] and [42] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) citing Bazley v
Curry [1999] 2 SCR 534 at 552-555; see also [87] and [88] (McHugh J)
pro-active steps to select, train, equip and supervise volunteers to reduce the chance of
future harm.
Although the circumstances will vary with different community groups, volunteers
generally work as if they were employees. Volunteers do what they do for the benefit
of the organisation that depends upon them rather than for their own benefit. Unlike
an independent contractor they represent the organisation and often wear a uniform
provided by, and identifying them as part of, the organisation. Volunteers agree to
perform various tasks at the direction of, and under the control of, the organisation for
which they volunteer. They may be on rosters or available to be called at short notice.
In return they receive benefits that range from social benefits, such as membership of
a group and enhanced social standing, to economic benefits in the form of training
and experience that they can take and use outside their volunteering capacity. It
would be possible to argue that the commitment organisations make to their
volunteers and vice versa, is a contract even if it misses the most critical aspect of
employment, namely the payment of a wage or salary. Because the work that
volunteers do is an integral part, and identified as the work, of the organisation, so too
that organisation should bear the cost of injury caused by their operations, regardless
of whether their staff are paid or volunteer.
It follows that it is not clear, and it has not been tested ‘under contemporary
Australian conditions’, that organisations that rely on volunteers are not vicariously
liable for the torts of their volunteers. This situation has been resolved by legislation
in all jurisdictions, other than New South Wales and Queensland. Except in those
jurisdictions, legislation provides that an organisation that relies on volunteers will be
liable, even if the volunteer is not.21
The New South Wales legislation appears to have gone in the opposite direction.
Section 3C of the Civil Liability Act says:
Any provision of this Act that excludes or limits the civil liability of a person for a
tort also operates to exclude or limit the vicarious liability of another person for that
tort.
21
Commonwealth Volunteers Protection Act 2003 (Cth) s 7; Civil Law (Wrongs) Act 2002
(ACT) s 9; Personal Injuries (Liability and Damages) Act 2003 (NT) s 7(3); Volunteers
Protection Act 2001 (SA) s 5; Civil Liability Act 2002 (Tas) s 48; Wrongs Act 1958 (Vic) s
37(2); Volunteers and Food and other Donors (Protection from Liability) Act 2002 (WA) s 7.
The effect of s 3C is that if the volunteer can escape liability, relying on the volunteer
provisions22 then the organisation also enjoys the effective benefit of that protection.
In that State a plaintiff who was injured by a volunteer and who was looking for a
remedy would need to sue the organisation for breach of its duty of care or its nondelegable duty to ensure care was taken. The difference between these claims was
explained by Gleeson CJ who said:
In practice, the difference between a duty to take reasonable care [the traditional
common law duty] and a duty to ensure that reasonable care is taken [a non-delegable
duty of care] matters where it is not an act or omission of the defendant, or of
someone for whose fault the defendant is vicariously responsible, that has caused
harm to the plaintiff, but the act or omission of some third party, for whose fault the
defendant would not ordinarily be vicariously responsible. If a negligent act or
omission is that of a defendant, or a person for whose fault the defendant is
vicariously responsible (such as an employee), no problem arises.23
Whether or not the Ipp Panel were correct in their assessment of vicarious liability, s
3C ensures that organisations in New South Wales are not vicariously liable for their
volunteers. Community organisations will therefore only be liable if the plaintiff can
prove that they were in breach of a non-delegable duty of care. In making that claim
the plaintiff will, however, have to deal with another provision that says:
The extent of liability in tort of a person ( "the defendant") for breach of a nondelegable duty to ensure that reasonable care is taken by a person in the carrying out
of any work or task delegated or otherwise entrusted to the person by the defendant is
to be determined as if the liability were the vicarious liability of the defendant for the
negligence of the person in connection with the performance of the work or task.24
This section does not say that there is no liability for breach of a non-delegable duty
or that a defendant is liable if, and only if, they are vicariously liable for the actions of
the tortfeasor. If it did say that, a defendant could point to s 3C to show that they are
not vicariously liable for their volunteer and that would also defeat a claim for breach
of a non-delegable duty. Rather the section says that liability is to be judged ‘as if’
the liability were vicarious liability. In that case the defendant can point to the
various defences that would apply if they were being sued on the basis of vicarious
liability, for example that the volunteer or independent contractor had acted outside
the scope of their authority or that they were on a ‘frolic of their own’. In that case
22
23
24
Civil Liability Act 2002 (NSW) s 61.
Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 233 ALR 200, [9].
Civil Liability Act 2002 (NSW) s 5Q.
the volunteer protection provisions would not apply25 and the plaintiff could look to
the volunteer for compensation.
A plaintiff could also sue the organisation for breach of its duty to take reasonable
care by asserting that it failed to act reasonably in selecting, training, equipping or
supervising its volunteers.
It may be that in New South Wales a person injured by a volunteer can still obtain a
remedy but it will be more complex than in other jurisdictions. In other jurisdictions
proof of the volunteer’s negligent conduct will see the organisation liable, in New
South Wales the imposition of liability is not that simple but will require appropriate
pleading that the organisation has failed in its duty to take care or ensure care is taken.
The reason for the different position in New South Wales is not clear and was not
explained when the section was introduced to the Parliament.26
The Queensland Act with respect to volunteers27 is the same as the New South Wales
Act28 with the exception that the Queensland Act does not have an equivalent to s 3C.
In effect the Queensland legislation is silent on the issue of whether or not the
organisation is to be liable for the torts of its volunteers. The issue in Queensland will
need to be tested on the basis of the common law and whether or not volunteers are
akin to volunteers or independent contractors.
The situation noted by the Ipp Panel; that there was no significant number of claims
against volunteers, remains the case. There are no reported cases where volunteers
have been sued for default in their volunteering work, nor are there likely to be. As
with personal actions against employees, injured plaintiffs will have no interest in
seeking to make volunteers personally liable for their acts or omissions as volunteers
are unlikely to have the resources to meet compensation payments. A plaintiff will
always seek to target the organisation that is insured or covered by state government
self insurance arrangements in order to obtain a meaningful remedy for any loss or
harm they have suffered.
25
26
27
28
Civil Liability Act 2002 (NSW) s 64.
New South Wales, Parliamentary Debate, Legislative Assembly, 13 November 2003, 4992
(Morris Iemma, Minister for Health).
Civil Liability Act 2003 (Qld) ss 38-44.
Civil Liability Act 2002 (NSW) ss 59-66.
Good Samaritans
Good Samaritans are people who come forward, in an emergency, to provide
assistance to others. The Ipp Panel noted that there was no
…Australian case in which a good Samaritan … has been sued by a person claiming
that the actions of the good Samaritan were negligent. Nor [were they] …aware of
any insurance-related difficulties in this area.29
Again, however, all jurisdictions have passed legislation to reassure people that they
will not be liable for mistakes made in the agony of the moment.30 It remains the
case, however, that the legislation has not been tested nor are there any reported cases
of a good Samaritan being sued over their conduct in an emergency.
The model adopted in the legislation is reasonably consistent across the jurisdictions,
except Queensland. A ‘good Samaritan’ is someone who comes forward to render
assistance in a medical emergency without expectation of being paid. A ‘good
Samaritan’ is not liable for any damage caused by their well-intentioned acts or
omissions. Further, a medical practitioner, (or in Tasmania and Victoria, anyone) who
provides advice on how to treat an injured person is not liable for any error or
omission in that advice.31
A good Samaritan does not enjoy legal protection if:

In every jurisdiction other than Victoria, their ability to perform is
‘significantly impaired’ by the consumption of alcohol or drugs.32 .

In New South Wales they either intentionally or negligently caused the initial
injuries;33 or

In New South Wales and Tasmania, the good Samaritan claims to have skills
or training that they do not have.34
29
30
31
32
33
Above n 1, 108.
Ibid.
Civil Liability Act 2002 (NSW) ss 55-58; Law Reform Act 1995 (Qld) ss 15 and 16; Civil
Liability Act 1936 (SA) s 74; Civil Liability Act 2002 (Tas) ss 35A-35C; Wrongs Act 1958
(Vic) ss 31A-31D; Civil Liability Act 2002 (WA) ss 5AB and 5AD; Civil Law (Wrongs) Act
2002 (ACT) s 5; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 8.
Civil Liability Act 2002 (NSW) s 58(2); Civil Liability Act 1936 (SA) s 74(4); Civil Liability
Act 2002 (Tas) s 35C; Civil Liability Act 2002 (WA) s 5AE; Civil Law (Wrongs) Act 2002
(ACT); s 8 Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 8.
Civil Liability Act 2002 (NSW) s 58.
The position in Queensland is different. The Queensland law does not apply to anyone
who steps forward to provide assistance. Protection from civil liability is extended to
doctors, nurses35 and members or employees of listed organisations only.36 In order to
rely on the protection the person must be providing care in an emergency and in the
case of doctors and nurses, without an expectation of being paid.
As noted above, the Ipp Panel did not advocate for good Samaritan legislation. Tort
law requires a person to act reasonably in the circumstances and those circumstances
will include the nature of the emergency and their skills and training. On the other
hand good Samaritan legislation exposes vulnerable people to substandard care, and
denies them a remedy, based on the motives of their rescuer rather than because of
any judgment that given the urgency of the circumstances, what was done or not done,
was reasonable. That may well have tipped ‘…the scales of personal responsibility
too heavily in favour of interveners and against the interests of those requiring
assistance’.37
The Ipp Panel had noted that there were no compelling reasons for this legislation.
That remains the case. The fear of being sued for stepping forward at an accident,38 if
it still exists, is and has always been, overstated.
Conclusion
Notwithstanding the Ipp Panel’s recommendations against volunteer and good
Samaritan protection legislation, all Australian jurisdictions have acted to protect
these community minded volunteers. The protection offered is similar in all
jurisdictions except that in New South Wales and Queensland the liability of
organisations for the negligence of their volunteers is unclear, and in Queensland the
good Samaritan protection applies to only a limited class of people being doctors,
nurses and members of identified community organisations.
34
35
36
37
38
Civil Liability Act 2002 (NSW) s 58(3); Civil Liability Act 2002 (Tas) s 35C.
Law Reform Act 1995 (Qld) s 16.
Civil Liability Act 2003 (Qld) s 26.
Above n 1, 107.
Ibid.
Legislation such as this may go some way to reassuring people that they can safely
volunteer or step forward at an accident and if it does, that is a community benefit.
On the other hand the legislation may well restrict or deny legitimate claims for
damage caused by negligent conduct.
The reality is that neither before, nor after this legislation was enacted, have there
been significant claims against volunteers or good Samaritans and legislation in this
area was not recommended by the Ipp Panel. The fact that legislation has been
enacted in all Australian jurisdictions suggests that it was enacted to resolve a
political or perceived problem rather than to remedy any significant defect in the law.
Michael Eburn
19 July 2010.