TGB's Mal Byrne says Good Samaritans are protected by South Australian law.
TGB’s Mal Byrne says Good Samaritans are protected by South Australian law.
In a recent Advertiser story, a woman complained about the conduct of a metropolitan bus driver who failed to provide her with assistance as she struggled to fold a pram and hold onto her toddler son, who could have run into traffic if released. The passengers on the bus also failed to come to the woman’s aid.
The bus company’s defence was that the driver was instructed not to leave his seat at any time during a trip for legal liability reasons. The assumption that the article appeared to make was that the passengers had refused to provide assistance because they also feared being sued.
So, is the fear of litigation reducing South Australians to paralysed onlookers? If that is true, the public is getting the wrong message as Good Samaritans are protected under the law.
Section 74 of the Civil Liability Act which was brought in as part of the Ipp Amendments on 1 April 2004, says that a Good Samaritan incurs no personal civil liability for an act or omission “done or made in good faith and without recklessness in assisting a person in apparent need of emergency assistance.” This includes medically qualified Good Samaritans.
Emergency assistance is defined as “emergency medical assistance or any other form of assistance to a person whose life or safety is endangered in a situation of emergency.” A Good Samaritan is defined as “a person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance” or a medically qualified person with the same motives.
There are only two exceptions, that is, where the liability is covered by the compulsory third party motor vehicle insurance scheme or where the Good Samaritan has failed to exercise due care and skill at the relevant time because he or she was “significantly impaired by alcohol or another recreational drug.”
Hence, it is likely that no liability would have attached to either the bus driver or a passenger who helped with the pram or the child. The assistance needed would have been classed as “emergency assistance” given the child was at risk of running into traffic if let go. In short, Good Samaritans who provide emergency assistance acting in good faith and without recklessness and not impaired by alcohol or drugs, will not be liable should something go wrong.
Instead of focusing on the risk that Good Samaritans might be sued for helping, the law and the media should be focusing on whether bystanders should be compelled by way of either civil or criminal punishment for not rendering emergency assistance when it is required. The law does recognise this partially by making it an offence to leave the scene of a car accident. In the end, are we declining to help because we are afraid of being sued or because we just can’t be bothered?