Once again, our office Canadian and TV enthusiast, Kris, has started some fun coffee discussions in the firm. Today’s topic: If superheroes were real in Queensland, would citizens be able to sue them for their losses after a battle with the bad guys?
Kris brought this up after recounting his favourite moments from the new seasons of The Flashand Arrow with unnecessarily detailed reference to the explosions, cross fires and potential of collateral damage.
But is the situation similar to The Incredibles where a person may be able to sue a superhero for trying to save his/her life?
The Civil Liability Act 2003 (Qld) (‘CLA’) protects a person from liability for the negligence of someone rendering assistance in Queensland. However, this only applies if they are acting for or on behalf of a prescribed entity such as Queensland Ambulance Services, the Fire Brigade, helicopter rescue, etc.
A person from the general public is not protected from a claim in negligence. However, nobody has been successfully sued in these circumstances.
Members of the general public may be protected in circumstances where their actions are reasonable and such that they do not amount to negligence. In this way, the victim would not be able to argue that the first responder breached any duty of care.
The best way for a member of the general public to protect themself from liability is to first contact emergency services on 000 and follows their instructions. Doing so may afford them protection under s26 of the CLA because they would be considered to be ‘performing duties to enhance public safety for an entity prescribed under a regulation that provides services to enhance public safety.’
While following instructions in an emergency situation, a member of the general public must also assist a victim in ‘good faith’ and ‘without reckless disregard for the safety of the person in distress or someone else.’
Should emergency services be unreachable for any reason (e.g. phone is dead), then people should still try to help where they can. They must carefully assess the situation and avoid taking any action that may be deemed reckless or careless. The measures they take to help in the situation must be, in their best consideration, reasonable and acting within their own specific skill set, knowledge and experience.
Queensland courts may be hard pressed to rule against a first responder who acts in good faith and reasonably.
However, unlike in the Incredibles, it seems that many superheroes operate as vigilantes separate from proper legal enforcement. Thus, they most likely would not be considered to be protected by the CLA.
Whether their actions are considered reasonable, Kris tried his best to protect his beloved superheroes. He basically summarized that in a reality where meta-humans are capable of massive damage, the test for reasonableness must be appropriately extended.
The office was split on this discussion but some argue that their actions would not be considered reasonable because in situations where the crime is a robbery, it would be more reasonable to just let the villains escape rather than risk harm to civilians.
Some people also argued that since there are existing relations between the heroes and villains such as Barry Allen and his feelings of betrayal by Harrison Wells, it may not amount to good faith because they would also be fighting for their own personal vendettas.
Of course, at the end of morning tea all of us agreed that suing Oliver Queen for negligence may not be the best course of action to take unless we were willing to get an arrow in the knee.
But that being said if anyone has been injured due to the negligence of a superhero then we remain committed to protecting your legal rights. By all means give us a call.
