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.
7 thoughts on “New Irish law on the liability of good Samaritans”
Your reflections on the thought that
“the duty to intervene was of a moral rather than legal quality and essentially should remain that way”
would be welcome, in due course.
It’s a somewhat strange observation given that there is and was no legal duty (therefore, why would anyone have the opinion that it was moral as opposed to legal?). Nevertheless, I imagine that a positive duty to intervene would be difficult to draft and would be unpredictable in application.
I don’t quite follow their reasoning about the difficulty of transcribing moral duties into legal ones (after all, wasn’t Moses a legislator?), but the LRC seems satisfied with the way various duties of care are being applied by the courts. Indeed, if a general legislative duty was imposed I expect it would act to bolster a feeling of moral duty rather than a measure which would result in many prosecutions.
I’m a bit puzzled.
Are you suggesting that you see no positive moral duty to intervene, ever ? ( I assume not, but your “moral as opposed to legal” phrase is odd).
What I find more interesting is the LRC’s useful reminder, and approval of the fact, that the Common Law has always recognised that there not only can be, but are, limits to its scope.
Morality and law are both concerned with what it is appropriate to do, but rarely coincide perfectly. Wisdom/prudence in law-making recognises that abolishing the space for individual conscience is not the way to go.
One example of this is the general (though not entirely unanimous) view that marital infidelity is a bad thing. We no longer choose to make it illegal despite this.
The “moral as opposed to legal” phrase is the LRC’s, rather than my own. You’re quite right though, that not everything which is morally wrong should represent a legal wrong.
Jumping in here as a non-legal professional and maybe making a huge leap which could prove to be utterly wrong but could a legal duty to intervene also be applied to (in light of the recent debate) a priest becoming aware during confession that someone is abusing minors?
This seems to me to a good piece of legislation as it surely provides some succor to volunteers and “good Samaritans” who may have been concerned that their attempt to help someone could leave them exposed to legal proceedings. I am just wondering how many, if any, people have been sued in the past as a result of intervening or trying to assist someone in difficulty?
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