Volunteers and Vicarious Liability

Are you a volunteer or an organisation that employs volunteers? Are you and/or your volunteers covered by adequate insurance? Have you considered the important exemptions to public liability protection under your relevant insurance policy? Do you need help deciphering what your insurance policy document means and where your organisation might not be covered?

Under the Civil Liability Act 2002 (NSW) (“CLA”) if you have arranged for adequate insurance cover for your volunteers, and your volunteers are acting in the best interests of the organisation and not involved in any wrongdoing, they should be protected against any civil claims arising from acts or omissions by them or others during the course of their volunteer activities. This means that if your volunteer was acting within the bounds of their position description and through their own personal negligence caused a third party to injure themselves, they will most likely be protected from personal liability for the accident as long as the appropriate insurance cover has been arranged.

It is important to note that the protection of volunteers from incurring personal liability for their acts or omissions during the course of their duties does not apply where:

The volunteer was not acting in good faith (“good faith” = acting honestly and without fraud);
The volunteer knew, or ought reasonably to have known, that he or she was acting outside the scope of the activities organised by the community organisation, or contrary to instructions given by the community organisation (section 64 CLA);
The volunteer was engaged in an activity that constitutes a criminal offence (section 65 CLA);
The volunteer’s ability to exercise reasonable care and skill when doing the work was significantly impaired by alcohol or drugs voluntarily consumed (whether consumed for medication or not), and volunteer failed to exercise reasonable care and skill when doing the work (section 63 CLA);
The volunteer was engaged in defamatory behaviour; or
The volunteer incurred liability that would otherwise be covered by third-party insurance under the Motor Accidents Compensation Act 1999 (NSW), that is, a liability for compensation in respect of people who are injured or die as a result of transport accidents

In addition, in certain circumstances (whether a volunteer gains this protection or not) the community organisation may be liable for the volunteer under the legal doctrine of ‘vicarious liability’.

If you are running any kind of volunteer organisation, it is important to outline very clearly to your volunteers their roles and responsibilities in instruction manuals and training guides. A written job description and/or volunteer policy document may also state what behaviours or actions are prohibited (for example, the giving of medical advice). These documents may help to define what kind of work or actions are authorised or instructed by the organisation and what volunteer actions might be considered to be outside the scope of their authority or contrary to instructions.

Please contact one of our friendly solicitors if you have any questions in relation to your organisation’s insurance policy, legal structure, or if you require advice in relation to a claim against you or your organisation.