Billy Timmins (Wicklow, Fine Gael)

Just over four years ago I brought the Good Samaritan Bill 2005 before the House and the Minister for Justice, Equality and Law Reform referred it to the Law Reform Commission for consideration. In the intervening period, the Law Reform Commission has published two reports, both recommending the concept and need for this legislation. I revert to the House tonight to pursue my desire to have this Bill enacted.

I will be straight about my motivation for this Bill. I firmly believe it will save lives and further promote active citizenship. In 2003 I became aware of the necessity for a community first responders scheme when the concept of publicly available defibrillators was still in its infancy. The Bill does not just cover such activities but casts a wider net and proposes to protect people from any civil proceedings for damage caused to another person, if they aided a person in good faith in an emergency.

This is a simple and practical Bill requiring no funding or resources. In 2005, the former Minister for Justice, Equality and Law Reform, Mr. Michael McDowell, recognised the need for and concept of good Samaritan legislation; hence the referral to the Law Reform Commission. I hope that tonight the current Government will recognise the importance of this Bill and accept it in its entirety.

The purpose of this Bill is to protect from liability those who go to the assistance of others who may be ill or injured as a result of an accident or other emergency. This legislation will ensure that those who intervene to give help to others and who offer this assistance in good faith cannot be penalised or held liable as a result of their intervention unless there is a case of gross negligence.

Section 1 deals with the title of the Bill and the timeframe in which the Act should be implemented, which is one month in this case. Section 2 sets out the necessary definitions in the legislation and Section 3 states that the good Samaritan shall not be held liable in any civil proceedings for damage caused to another person where assistance, advice or care was provided to the person who has been injured in an accident or circumstances of serious or imminent danger. The exception to this is in the case of gross negligence.

Section 4 refers to the circumstances in which volunteers are not liable and to the circumstances in which they are; this again refers to cases of gross negligence. Section 5 deals with bodies formed for the purpose of giving assistance for the benefit of the community. Such bodies are liable in cases where damage is caused by the failure to take such care as is it is reasonable to expect.

The main advantage in passing this Bill is that it will be easily accessible and ready for immediate use, especially when there is no case law. It will also be authoritative, having been passed by the Legislature.

One may ask if there has never been a case concerning this issue, why bring forward an unnecessary solution? I remain firmly of the view that the absence of such legislation is prohibiting the involvement of volunteers in some projects and the further roll-out of defibrillators in the community. Many reports of the Government have highlighted the fear of litigation as a deterrent to voluntary work.

In this country there is no existing duty, for example, between an employer and an employee and the general principle is that there is no liability for a mere omission to act. There is no legal obligation to warn someone who is about to walk into a trap or to rescue him from a dangerous position when he has done so. However, if one intervenes and adds to the damage, we do not yet know in Ireland if there is liability. The result of all this may be that the good Samaritan who tries to help may find himself or herself involved in damages while the priest and the Levite who pass by on the other side can go on their merry way.

This Bill can give protection and has been shown to do so in case law in the United States, and many countries have similar good Samaritan legislation. During the debate on the issue in 2005 I referred to various instances of case law. One case, Boccasile v. Cajun Music Limited 1997, involved a man suffering an allergic reaction to food he consumed at a music festival. Another case is Pemberton v. Dharmani, a malpractice case in Michigan in 1994.

There is a legal maxim of volenti nonfit injuria, roughly construed to mean no injury is done to one who consents. It has its origin in the process by which Roman law validated the act of a free citizen selling himself into slavery. In the 19th century it found its way into the law of tort. The principle is that a person may not sue in tort if he or she had given an express or implied consent to the act complained of. In many of the situations I envisage where this legislation may be of use, consent may not be possible due to the condition of the injured party. Even knowledge may not be possible, and knowledge in itself is not consent.

The biblical parable of the priest, the Levite and the good Samaritan is often used to teach the virtue of helping someone in need. There is a desire in virtually all of us to help a person whom we perceive to be in immediate danger. This can range from saving a person from drowning to helping to change a car tyre. However, with the evolution of society this desire takes other issues into consideration. How often have we heard about someone who stopped on a road to assist and ended up as the victim of a mugging?

The good Samaritan issue is not a concept that has been discussed widely in Ireland, mainly because it has not arisen in any tangible form. The claim, often made, that the door was closed after the horse had bolted cannot be made in this case as Fine Gael, by bringing forward this Bill, intends to assist in the development of volunteerism.

The issue has arisen in other countries. As a general principle, common law does not require a bystander to help someone in danger. This legislation does not make this a requirement either; the priest and the Levite would not be liable for failing to assist the stranger. However, a bystander is safe as long as he or she does absolutely nothing. It is my firm belief that some time in the future we will see in our legal system a claim for damages where a person chooses to intervene and adds to the injury. Our courts have a strong tendency to ensure that someone picks up the cost for injury to a person, and passing this Bill should lessen the chances of the willing helper being that someone.

It is not uncommon to have statutory modifications to the common law. In Quebec, Canada, the law imposes a duty on everyone to help a person in peril. The duty to assist a person in danger is evolving in France and Belgium, and we all remember the photographers in the Princess Diana case.

My primary motivation for this Bill is to assist in encouraging the availability of defibrillators in the community through sporting clubs, commercial outlets, schools and any location where large crowds are likely to gather. Since the Bill was originally published in 2005, I acknowledge the great strides that have been made by the HSE ambulance service in rolling out defibrillators and the first responders scheme. However, I am aware that the fear of litigation, whether justified or not, has acted as a barrier to encouraging more people to volunteer. This simple legislation can address this problem and we need to ensure the virtue of the good Samaritan concept carries over to our legal system.

Cardiac Self Help Wicklow, now Wicklow Community First Responders, is a voluntary group established in autumn 2003 with a view to making defibrillators available in the wider community. Every year, several thousand people die in Ireland from sudden cardiac arrest. There are many causes, such as genetics, illness, heart attack, environmental conditions and even physical contact. Thanks to the ambulance service working with voluntary groups across the country, first responders schemes are up and running in many areas. Many communities are in the process of setting up a scheme and it is our intention, with the co-operation of communities, to extend this service throughout the country.

In addition, local groups and schools can privately purchase a defibrillator and have it available in their immediate area. This is known as targeted defibrillation. The scheme in Wicklow went into operation in spring 2005 and now has more than 500 active members, representing almost 30 areas. Similar schemes exist in Roscommon, Cork and other parts of the country.

To assist with targeted defibrillation, legislation will be necessary to deal with the concerns of volunteers who fear litigation. This is such a Bill. The Government has repeatedly called for ideas from this side of the House and the implementation of this one will greatly improve our health service at virtually zero cost.

It is said that Ireland is becoming a more litigious society. These days, how do we ensure that our legal system does not act as a disincentive to people to get involved in voluntary work to the benefit of their communities and society as a whole? How do we ensure that a person who gives of their time to assist with a volunteer cardiac response unit is not left without legal protection? Over the past ten years, many reports have highlighted the need for legislation to cover those who act as a good Samaritan or volunteer in administering fist aid or other emergency procedures. The Government published a white paper in 2000 on supporting voluntary activity. The document noted that:

The Irish Constitution recognises the right to associate. Overall, however, there is an underdeveloped legal and policy framework in Ireland for the support of voluntary work and the contexts in which it takes place.

In 2005, the European Volunteer Centre published a country report on the legal status of volunteers in Ireland and noted there is no specific legislation relating to volunteers here. In 2006, the taskforce on active citizenship was established and its terms of reference requested it to make recommendations which "could be taken as part of public policy to facilitate and encourage a greater degree of engagement by citizens in all aspects of Irish life, and the growth and development of voluntary organisations as part of a strong civic culture". In its 2007 report to the Taoiseach, it stated that "the fear of litigation has become a growing barrier for many community and voluntary groups".

The 2006 report of the national task force on sudden cardiac death syndrome, Reducing the Risk: A Strategic Approach, stated that Ireland has no good samaritan law to protect members of the public who go to the aid of another person. The HSE's 2008 cardiac first response guide also reiterated the views of that report, stating that "one of the main stumbling blocks to communities purchasing defibrillators and developing programmes has been a concern over legal indemnity".

One of the phrases used repeatedly by this Fianna Fáil-led Government is "social capital". The decline in what is referred to as social capital is frequently lamented by the Government and is a phenomenon witnessed by all of us in the new Ireland of the 21st century. While speaking of the importance of promoting social capital, the Government is not taking concrete action to match those words. The final recommendations of the task force on active citizenship lie unimplemented.

Fine Gael brought forward this Bill in 2005 and the then Minister for Justice, Equality and Law Reform stated it was flawed legislation. This was untrue but he put that construction on the Bill for his own benefit. However, he proposed at the time that the concept be sent to the Law Reform Commission. We welcomed that. We have had two reports since from the Law Reform Commission, the first of which went out for general discussion. The strong recommendation from many of the groups that made contact with the commission was to bring in good samaritan legislation. The commission published its report last year and published a draft Bill which was virtually a replica of the Fine Gael Bill, with just two slight differences. The first was the issue of a professional person going to assist somebody and the second was the extension in the commission's Bill to cover an organisation that was represented by a volunteer. We published that Bill in its entirety as we are anxious that legislation be brought in. It was a replica of the Fine Gael Bill and we have listened to the Minister tell us he wants to hear proposals from the Opposition. We have brought forward proposals and I am outraged that the Government has tabled an amendment kicking this to touch.

I had given consideration earlier today to withdrawing this Bill, because the Government has treated this proposal with disdain. It speaks of active citizenship and volunteers, yet it administers a kick in the teeth to those same volunteers because it does not want to acknowledge the role of a progressive and positive Opposition. It puts its own self-serving agenda ahead of the people. I could have spent the last few months lobbying these voluntary groups. We will not see a story about good samaritan legislation on the front page of The Irish Times or the Irish Independent, and it will not be mentioned among the chattering classes. However, it is a major issue under the surface and those groups will discover over the next few days that the Government has turned down progressive legislation for no reason other than that it does not have the magnanimity, virtue, compassion or interest in Irish people to bring forward legislation that quite simply costs nothing.

The Government amendment mentions a civil law miscellaneous provisions Bill, but the heads of that Bill have been published and there is no reference to good samaritan legislation. This story will not end up on the "Nine O'Clock News", but it is a very sad day for this House. The Minister knows what this Bill is about, and although his colleagues in the Cabinet do not, they will over the next few weeks. Many voluntary groups realise what the Government has done. Every report, including reports commissioned by the Minister's Government, have recommended this legislation, but the Government simply did not have the good grace to give a little bit of credit to the Opposition.

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