It had seemed, in the crisis years of 2008 to date (one assumes the crisis has not yet passed), that the Irish Government was incapable of addressing any non-economic issue facing the State. There is, of course, more to a nation than banks and bonds, so it is refreshing to see some more items crossed off the legislative to-do list by the new Government.
Recent Irish governments have been into the habit of introducing “miscellaneous provisions” legislation: acts which contain a series of unconnected amendments to existing laws. Usually, the amendments have been on the long finger for some time or have arisen as a matter of urgency. Such legislation is often passed just before the Summer recess.
The Civil Law (Miscellaneous Provisions) Act 2011 is such a law and covers diverse areas of the law like private security services, equality, family law, the sale of alcohol, rights of way, personal bankruptcy, tribunals of inquiry and eligibility for appointment as a taxing master.
One area covered, which was expected in a stand-alone act, is the law on good Samaritans. Up to now, there was no legislation on the issue. A private members bill was introduced in 2005 by then-opposition TD Billy Timmins (FG, Wicklow) which spurred the Government to request a report from the Law Reform Commission.
That report was published in 2009 and Mr. Timmins (still in opposition) returned with a new private members bill. His 2009 proposal was, in fact, the law as proposed by the Law Reform Commission and by introducing it to the Oireachtas before the Government some additional pressure was exerted to act. Legislation was expected last year but, as with many areas of law and policy, one assumes supervening events disrupted the legislative programme and the last government never got around to it.
The 2011 Act essentially provides that good Samaritans will not be personally liable for anything done while assisting someone ill, injured or in danger. Volunteers will be similarly protected from liability when carrying out volunteer work. Of course, there are exceptions and, for example, the protection from liability is lost in the case of malice or gross negligence.
The changes do not introduce into Irish law a duty to intervene. This is in line with the recommendations of the Law Reform Commission, who concluded that, in Irish society, the duty to intervene was of a moral rather than legal quality and essentially should remain that way.
A duty to intervene can arise under Irish common law where a particular relationship exists between the parties which would justify it (Chapter 2C of the LRC report addresses this area). The Law Reform Commission recommended introducing a statutory duty of care on the part of volunteer organisations, but the 2011 Act only requires that, when considering whether a volunteer organisation owed a duty of care to someone, a court must consider whether it is just and reasonable to impose a duty “having regard to the social utility of the activities concerned.”
The 2009 private members bill contained the Commission’s proposed duty of care for volunteer organisations so it is not clear why the Government did not incorporate that wording.
Nevertheless, although lawyers are not generally fans of miscellaneous provisions legislation, the Government must be commended for acting on the issue. Through Mr. Timmins, Fine Gael have highlighted the foot dragging on this issue and have now addressed it within a reasonable time of taking office.