25 November 2020
The Supreme Administrative Court rendered the 109-Pan-320 Decision of June 4, 2020 (hereinafter, the “Decision”), holding that for the state to be liable for compensation, a civil servant must intentionally or negligently infringe upon the freedom or rights of the people in order to constitute a tort in the discharge of public duties.
According to the facts underlying this Decision, the Appellant asserted that the son of Appellants A and B, i.e., Individual C and not a party to the lawsuit, fell to the ground for unknown reasons. After this matter was reported to a disaster rescue command center affiliated with the Appellee (the Fire Bureau of Taichung City Government), Unit X of the Disaster Rescue Brigade was assigned to send an ambulance with rescue personnel D and E of the unit onboard. However, D and E failed to administer the first aid pursuant to relevant procedures and operated AED equipment improperly, resulting in C’s condition to deteriorate. In addition, the ambulance took a wrong route on the way to Hospital Y, resulting in C’s death shortly after their arrival at the hospital. Therefore, since the Appellee’s two rescue personnel, D and E, infringed the rights of a citizen due to the above-mentioned negligence, the Appellant claimed that the Appellee is liable for national compensation and should compensate the Appellant for the funeral cost, family support cost, and a solace in accordance with Article 2, Paragraph 2 and Article 5 of the National Compensation Law and Article 192, Paragraphs 1 and 2 and Article 194 of the Civil Code.
According to this Decision, the first part of Article 2, Paragraph 2 of the National Compensation Law provides that the state shall be liable for compensation if a civil servant intentionally or negligently violates the freedom or right of a citizen illegally during the discharge of his/her official duties. The liability for damages which shall be assumed by the state pursuant to the first part of Article 2, Paragraph 2 of the National Compensation Law is an indirect liability for a civil servant’s tort during the discharge of his/her public duties. Therefore, the state’s liability for compensation to an injured citizen is preconditioned by a civil servant’s intentional or negligent violation of the citizen’s freedom or rights in violation of laws during the discharge of his/her public duties, and it is only under such circumstances that the act of the specific civil servant constitutes a tort during the discharge of his/her public duties.
It was further pointed out in this Decision that before D and E arrived at the rescue scene, C had been in a state of OHCA, i.e., out-of-hospital cardiac arrest. In addition, other personnel affiliated with the Appellee had continuously guided a witness to administer CPR to C, and as soon as D and E arrived at the scene, D first confirmed C’s vital signs, and the OHCA state persisted. D attached AED patches to C and then monitored the pulses on the right external carotid artery before applying electrical shocks to C pursuant to AED instructions. After the electrical shocks, D performed CPR again to C. E established C’s airway with an LMA, and administered oxygen through a BVM connected to an oxygen cylinder catheter. After this procedure was performed for two minutes, another electrical shock was recommended again according to the AED instructions. After the electrical shock, D continued with the CPR and moved C to the ambulance. According to relevant evidentiary materials, D and E performed a first aid and implemented rescue procedures such as AED and CPR after arriving at the scene. This meets the requirements in the education and training manuals for emergency medical technicians. Therefore, the basic rescue procedures and acts conducted by D and E to C do not show any intentional or negligent tort in violation of laws.
For further information, please contact:
Emily Chueh, Lee Tsai & Partners
lawtec@leetsai.com
