Dermot Ahern (Louth, Fianna Fail)

I move amendment No. 1:

To delete all words after "That" and substitute the following:

"Dáil Éireann-

noting the commitment in the Government Legislation Programme published on 19 January 2010 to publish a Civil Law (Miscellaneous Provisions) Bill in the current session;

supporting the inclusion of provisions in the Civil Law (Miscellaneous Provisions) Bill to provide more adequately for the civil liability of good samaritans and volunteers;

noting that drafting of that Bill is at an advanced stage,

resolves that the Civil Liability (Good Samaritans and Volunteers) Bill 2009 be deemed to be read a second time on 2nd September 2010.".

The Government proposal is that the House defers for six months the second reading of the Private Members' Civil Liability (Good Samaritans and Volunteers) Bill 2009. The Government does not oppose the Private Members' Bill as such. We thank Deputy Timmins and his colleagues for promoting the principle of what is involved, with which I agree entirely. However, the Government is in the final stages of preparing its own legislation which, it believes, will address the matter more adequately and more quickly.

The Government legislation will also set out to protect from liability those who, acting with good intentions, go to the assistance of those who are injured or ill as a consequence of an accident or emergency. The Bill's purpose also will be to ensure that a well-intentioned person who helps someone who is ill or hurt in an emergency need not fear being sued as a result of his or her intervention.

The Government recognises that fear of civil liability can hamper volunteerism and may prevent individuals and groups from providing assistance and services to others. Without greater legal certainty in this area, the concern is that the perception may continue that there is a risk of civil liability to those who provide assistance or services on an ex gratia basis. That potentially discourages volunteerism and may raise insurance premia for volunteer groups. Changes in society, the pace of life, and working patterns mean that volunteerism is under stress from many angles and greater clarity in the law would encourage volunteerism to the benefit of the State and society as a whole.

When Deputy Timmins brought forward his earlier Bill on this subject in June 2005, his stated primary motivation was to specifically smooth the path for the introduction and use of defibrillators in the community, by removing the fear of litigation if the intervention did not go as far as intended. The Deputy's entirely commendable intention was to remove perceived obstacles in terms of vulnerability to litigation from the emergency use by volunteers of defibrillators at sporting events, in schools, in shopping centres and in other locations and circumstances where people might suffer sudden cardiac arrest. Such legislative proposals have wider implications for the volunteer community in general, and are not limited to situations requiring cardiac resuscitation.

At that time, the Government considered the objective of the 2005 Bill to be entirely worthy, but the Bill failed in several respects to adequately address the complexities of the law in this area and the matter was referred in January 2006 to the Law Reform Commission for an in-depth review. The Law Reform Commission published its Report on the Civil Liability of "Good Samaritans" and Volunteers in May 2009. I note that the Bill replicates precisely the draft provided by the commission in that report. In December 2009 the Government agreed to include the relevant provisions on good samaritans into the Civil Law (Miscellaneous Provisions) Bill we are now bringing forward.

The key recommendations by the Law Reform Commission were the following. First, to maintain the position in common law not to impose a general duty on any category of persons to intervene for the purpose of effecting a rescue or assisting an injured person or a person at risk of injury. Second, that the range of individuals that constitutes good samaritans and volunteers and the types of intervention they may make should be set out in statute. The actors envisaged are those who act "voluntarily and without expectation of payment or other reward". Third, that legislation should set a standard of care for good samaritans and volunteers, which is above the threshold of gross negligence, an understanding of which should also be addressed. Fourth, that legislation should set out an ordinary standard of care for volunteer organisations or undertakings and that account should be taken of the benefits which have accrued to society because of the organisation's work in determining whether it is just and reasonable to impose liability.

The recommendations of the Law Reform Commission were fully accepted by the Government. The Government subsequently approved my proposals for the drafting of provisions to legislate for good samaritans in the proposed Civil Law (Miscellaneous Provisions) Bill. That Bill is in the course of being drafted for publication in this session in accordance with the Government legislation programme announced by the Chief Whip on 19 January 2010. The Government's legislative proposals will incorporate the commission's recommendations and some additional provisions to ensure that the law is as comprehensive as possible.

In examining the commission's recommended Bill, my Department, in consultation with the Office of the Attorney General has identified issues requiring attention. These issues are not addressed in the Private Members' Bill nor in the Bill proposed by the Law Reform Commission, and their omission would result in a text that would fall somewhat short of the ideal.

The Private Members' Bill leaves unresolved important policy and drafting matters. Greater clarity is required around the kinds of scenario that might give rise to protection from civil liability. For example, should the advice, assistance or care given by a good samaritan or volunteer be restricted to the scene of an accident or should it include transportation to a hospital or other medical care facility? How far into the future from the time of the accident or emergency ought the protection from liability stretch; until the injured person receives medical attention for the first time or beyond that? Other points of clarification include whether a person who caused the accident or emergency in question in the first place could be categorised as a good samaritan thereafter, depending on his or her behaviour. We would not want to exclude such a person from protection under this legislation as long as he or she behaves with the requisite reasonableness and care expected when helping those who have been injured. That issue is not addressed in the Private Members' Bill before the House.

The Government's proposed legislation will also seek to ensure that persons who merely appear to be injured are included within the scope of the legislation alongside those who are actually injured. It would not make sense to protect a good samaritan from liability for coming to the aid of someone with, let us say, a broken leg, but not to provide protection from liability if he or she attempted to assist an essentially uninjured but intoxicated person. There are legislative provisions along these lines in other common law jurisdictions.

The Private Members' Bill protects certain persons from liability for damage, which could include death or personal injury. I propose to ensure that damage to property falls within the scope of this definition. There are many situations where damage to property would be a natural consequence of coming to a person's rescue. For example, it might be necessary to do damage to a person's vehicle when extracting him or her following an accident. Another issue that arises is who is envisaged as the potential plaintiff. This may be limited to the person directly affected by damage at the hands of the would-be good samaritan or volunteer or may include a dependant of such a person.

Technical drafting issues also require to be clarified, particularly around the appropriateness or otherwise of defining in statute certain core concepts including, for example, "gross negligence". That concept has heretofore not been defined in a comprehensive or satisfactory way, either in national or relevant international law. The most relevant Irish case law, according to the Law Reform Commission report, dates back to 1948. Therefore, we must tread carefully to ensure the necessary complexity and subtlety is captured. To establish negligence there must be: a duty of care - in other words the existence of a legally recognised obligation which requires a defendant to conform to a certain standard of behaviour to protect persons from harm; a breach of the standard of care; actual loss or damage to the interests of the plaintiff; and a close causal connection between the defendant's conduct and the injury caused to the plaintiff.

The duty of care is broadly speaking a duty that one must not injure one's neighbour. In other words, one's actions must not cause injury to others or put others into harm's way. Our courts fashion the duty of care and specify its scope with the simple aim of accomplishing social goals. What must be remembered is that very different factual situations arise in particular cases and each situation must be carefully examined before it can be determined whether a duty of care exists and the scope of that duty. The Law Reform Commission recommended that the law should not be amended to impose any general legal duty to intervene to rescue people in danger over and above what exists in the law already, for example, the duty on employers to provide first aid assistance to employees under the safety and health at work legislation.

Many civil law states with code-based systems, including those of continental Europe, have imposed positive legal duties to intervene to rescue. However, the position that there should not be a general legal duty to intervene is deeply rooted in the common law for both philosophical and practical reasons. That is reflected in numerous cases in this jurisdiction and in comparable international jurisdictions. Common law in this area has long emphasised the concept of proximity to one's neighbour before a duty of care arises, and draws a distinction between that which is morally desirable and that which is legally required. While inaction or, for example, a failure to attempt a rescue may lead to injury or death just as much as careless action, it is only where there already exists a clear duty of care that civil liability could arise. While a high standard of care, including a positive duty to act, is set for parents in respect of their children, for instance, strangers are held to a lower general standard not to act in a way that would harm or injure another.

The Law Reform Commission correctly concluded that it was unlikely that a general duty to intervene would promote volunteering or active citizenship. Moreover, the commission was informed by the groups it consulted that imposing such a duty might have the opposite effect. With a view to legislating properly and comprehensively on this matter, the Government's preference is to proceed, as announced in our legislative programme, with the civil law miscellaneous provisions Bill as the vehicle. The Government is taking on board the recommendations of the Law Reform Commission by incorporating the principles of the commission's draft Bill into its own Bill. In light of this, my proposal is to defer the Second Reading of the Private Members' Bill for six months. The effect of the Government's amendment is to retain the Bill on the Order Paper so it may be progressed through the House in the unlikely event that the civil law miscellaneous provisions Bill is not enacted quickly in the meantime.

The civil law miscellaneous provisions Bill covers several areas including, as was agreed in December, provisions relating to good samaritans and volunteers. The Government has given priority status to the drafting of this Bill because it includes other provisions which must be passed before 31 July. As such, I can offer a guarantee that the Bill, including the provisions relating to good samaritans and volunteers, will pass before the summer recess.

I compliment Deputies on the other side of the House on bringing forward this Private Members' Bill. I also compliment the Law Reform Commission which spent considerable time in bringing forward its report and the legislation that flowed from it. As I said, there are several defects in the Private Members' Bill. I do not say that in order to be critical of the Deputy who brought forward the Bill or of the Law Reform Commission.

See this speech in context