One of the main principles of law is the law of negligence. The main purpose of the law is to maintain and enforce expected standards of care in relationships between people. To establish a case of negligence, the plaintiff must prove that a duty of care has arisen between the plaintiff and defendant and that the defendant has breached that duty.
Negligence claims are often made against professionals who have provided services to an individual. The lay person is not usually in a relationship that gives rise to a duty of care but such a relationship may occur when he or she tries to help someone, as a Good Samaritan, at the scene of an accident or emergency. The courts have held that a person who stands by while another person is in peril owes no duty of care to that person to help. However, a duty of care does arise once the person voluntarily undertakes to help that person.
In Ontario, prior to 2001, there was no legislation in place to address the situation of a Good Samaritan. The courts established the standard of care owed by the Good Samaritan (“the common law”.) The Good Samaritan had to take reasonable steps when assisting a person in peril. The test of “reasonableness” was to be viewed in the context of the immediate and pressing emergency facing the Good Samaritan, often called “the agony of the moment” principle.
In 2001, Ontario passed the Good Samaritan Act to give incentive to people to help when encountering an accident or emergency. This legislation has changed the common law by lowering the standard of care owed by a Good Samaritan to a person in peril. The test for the liability of a Good Samaritan is now one of gross negligence. The Act states that a Good Samaritan “is not liable for damages that result from the person’s negligence in acting or failing to act while providing the services, unless it is established that the damages were caused by the gross negligence of the person.”
Not everyone who assists at the scene of an accident or emergency is covered by the “gross negligence” standard of the legislation. There are only two categories. Health care professionals, such as ambulance personnel, are covered. And your basic Good Samaritan is covered, namely any person who voluntarily assists “without reasonable expectation of compensation or reward.” In many rural areas, such as Haliburton, volunteer fire fighters regularly appear at the scene of an accident or emergency. If they are receiving some form of compensation from the township, they may not be covered by the “gross negligence” standard but by the higher standard of reasonableness.