Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3295..
MS TUCKER (continuing):
the court taking that role, and this strikes hardest at people suffering serious and permanent impairment.
Further down the track, perhaps we can look at a more comprehensive, possibly national compensation scheme. The work we are doing in looking at how the current system works in the ACT may be a useful part of the process.
This bill provides protection for a person who acts in a medical emergency to assist someone but who is inadvertently responsible for injury or damage, the so-called good samaritan. Everyone seems keen to see this provision in the law, and the analysis in the explanatory memorandum is entertaining, with reference to actions for allergic reaction to wine, et cetera. As far as I am aware, no such actions have been taken.
The bill allows someone with good intent to leap in and offer emergency medical attention, cause damage and escape legal responsibility. The purpose of tort law is not to punish bad intentions but to acknowledge bad consequences. It remains to be seen whether the requirement to act honestly and without recklessness will provide enough protection for the party who is "helped".
The other protection in this bill is for volunteers of community organisations. The intent here is clear as well, but without some amendment there could be unintended consequences. I know the Democrats will be moving some amendments, and I will be moving one myself.
My chief concern is that, as the bill stands, members of any organisation could be found to share the liability of anyone else in their group. If the organisation is not incorporated and if through the act of a member damage or injury is caused, every single member of the organisation could be liable.
Such an outcome, it seems, would run completely against the intent of the part. I will move an amendment to ensure that this kind of redistributive protection applies only to community organisations which are incorporated and so offer the protection of limited liability to its members and, hopefully, insurance cover as well.
In this context, I would like to commend the government's decision to offer public liability insurance above $5 million and so require community groups to seek cover only to that level. While very few, if any, public liability claims have reached $5 million in the ACT, getting insurance cover up to $10 million or $20 million has always been a significant cost for community groups. In taking on this top-end risk, the government has found a way to bring down insurance premiums for the community/volunteer sector.
Importantly, this bill makes more coherent sense of how people's negligence and wrongdoing so often overlap and interfere with, or contribute to, each other. This bill abolishes the common law rule that precludes anyone who is liable in damages to any right to damages against any other wrongdoer. It gives the courts the responsibility to apportion liability responsibility when people contribute in varying degrees to the damage through their criminal activity, intoxication or irresponsible behaviour.