Michael McDowell (Dublin South East, Progressive Democrats)

Then we have another concept. A doctor who knows a great deal at a scene is effectively exempt unless he or she engages in gross negligence and a paramedic who is paid to be there can be sued because the paramedic, who is less expert, is there for reward because he is being paid. Do we want to go down that road? It would not improve our law.

When the court and civil liability Bill was being composed, we looked at these provisions. The point made by Deputy Timmins at the outset about volunteerism was raised. Volunteerism is under stress and I contemplated introducing a differential negligence test for those who provided facilities such as children's playgrounds so they would not be liable every time a child got a splinter. Those who run gymkhanas or horse shows on a regular basis for the community should not have to insure against myriad things happening. Many voluntary activities attract punitive insurance costs. I consulted the Attorney General on the issue and decided it was such a complicated point and the way in which it was phrased would have to be so carefully done that I could do more damage than good by altering the common law position that exists now.

For the first time in Irish law, the last paragraph of section 2(1) would create a liability for failing to act in circumstances when dealing with an emergency and would provide that failing to act could give rise to a claim for damages unless gross negligence could not be proved. That is what I am most worried about. For hundreds of years the law has stated that good samaritans are good because they do not operate under a duty. This Bill for the first time introduces the concept of people being sued for failing to act in respect of others and only gives the out that gross negligence would have to be proved against them. I am worried about doing that on the hoof. We should not blunder into such a new legal concept without careful consideration.

Law like this exists in some continental countries, where a person can be sued for failing to rescue someone else and he or she must prove that his or her actions were reasonable. Do we want to do that?

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