Liability Part 1

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The law relating to search and rescuer liability has achieved a precarious balance. Caught amidst the historical common law position and the increasing trend of the courts to encourage altruism are the rescue cases. Common law and "legal literature make it quite clear that absent a special relationship, there is no duty to act for the benefits of others."¹ As a result the courts have had to be creative in rewarding the deserving rescuer compensation for injuries suffered in his rescue attempt. This evolutionary process is evident when one examines the legal history of rescuer liability as it developed in the Anglo- American countries.

The law in the common law countries has always made a point of differentiating between misfeasance and non-feasance. Generally speaking, the law has not been willing to infringe on the individual freedoms of the populace and has therefore been extremely reluctant to impose an affirmative duty to act. There is accordingly no law, generally, against not acting. Although this reluctance to impose a positive duty has often led to disturbing results, the courts have still avoided combining law with morality. Nowhere does the conflict between morality and legality become more evident than with respect to the rescue cases. While there appears to be no duty to rescue, if a rescuer does so attempt, he is held to a certain standard of care. Concurrently, if the rescuer is injured, recovery is possible in certain situations. However, the courts have avoided imposing a duty to "do good to others" and have instead left such arrangement up to the individuals, such as the brave Samaritan or through private contract.

Historically, the common law countries, most notably the United Kingdom, the United States and Canada, were unwilling to compensate a rescuer for injuries he may have suffered in attempting a rescue. "In fact, occasionally the system not only displayed a reluctance to compensate the bystander injured in his attempt to help, but often refused to justify the intervention when the bystander inadvertently caused harm."² The courts relied on the maxims voluntary assumption of risk and a new intervening action to deny the rescuer compensation. The maxims provided the courts with an escape hatch. In the case of the former maxim, the courts argued that they did not have to award the rescuer compensation for they said that he voluntarily assumed the risk associated with the rescue attempt. The reasoning in applying the latter maxim was that the act of the rescuer was a new action and was not part of the chain of causation.

Starting from the same premise, that a rescuer was to be denied compensation, each of the above mentioned countries responded to the changing policy concerns of the public and evolved their laws to the point where today, the rescuer is in a much more favoured position. An examination of the evolution of the laws relating to search and rescuers in each of the three mentioned countries will show how the courts reached their present positions.

As already mentioned, the law of England originally did not recognize the right of a rescuer to recover. The case of Brandon vs. Osborne Garrett and Co.³ stood for this proposition. In the case, the plaintiff upon seeing the glass falling upon her husband "immediately and instinctively" . . . . tried to pull her husband from the spot. In her effort to pull him out of danger, which she reasonably believe to exist, she injured her leg.⁴ Swift, J., in his judgment, relied on the decision of Lord Ellenborough in Jones vs. Boyce and stated that "if a person is placed by negligence of the defendant in a position in which he acts under a reasonable apprehension of danger and in consequence of so acting is injured, he is entitled to recover damages, unless his conduct in all the circumstances of the case amounts to contributory negligence."⁵

In this case, the act of trying to save oneself was extended to trying to save one's spouse, child, friend or stranger. Although in this case, the rescuer was awarded compensation, there is strong dicta that indicates that an act deliberately undertaken with full appreciation of the risks involved would be a new intervening action and would "break the chain of causation created by the defendant's negligent act, thereby disallowing recovery by the rescuer."⁶ This raised a problem because it seemed to indicate that a rescuer who thought about what he was doing and was injured could not recover; whereas, the rescuer who acted instinctively and was similarly injured could recover. The difference between the two situations being that the act deliberately undertaken would break the chain of causation; whereas, the act instinctively taken would not. The case of Brandon vs. Osborne Garrett and Co.⁷ also stands for the proposition that if a rescuer does something a reasonable person ought not to have done, he will be denied recovery.⁸ The rationale for not awarding compensation to the foolhardy rescuer is to try and reduce the "frequency of unwarranted rescue efforts.⁹ The reckless rescuer is usually denied recovery on the grounds that "such a foolhardy attempt is unforeseeable and, hence, no duty is owed."¹⁰ If the rescue attempt is not foolhardy, the common law is clear that a rescuer can recover from a defendant who negligently endangered the rescued part of from the victim who negligently or carelessly imperilled himself, provided that there is a "reasonable belief that somebody is in peril, and there is a reasonable response by the rescuer."¹¹ Authority for this principle is the case of Ould's vs. Butler's Wharf.¹² In this case, a rescuer wrongly believed that a fellow workman was in danger of being hit by the hook of a crane. In his effort to effect a rescue, the rescuer was injured. The court recognized that so long as the rescue attempt was reasonable in the circumstances, the rescuer may be compensated. It mattered not the attempt be unnecessary or futile.¹³ If there is a reasonable chance of saving life or avoiding injury, the common law cannot deny recovery to those hurt during these attempts for fear that they may be discouraged from their heroic acts.

Up until the case of Haynes vs. Harwood¹⁴ decided in 1935, the generally accepted view was that a person acting voluntarily and incurring certain risk must suffer the consequences of his actions. With the decision in the Haynes¹⁵ case, the courts recognized that the rescue cases comprised an exception to the two well recognized defences of new intervening action and voluntary assumption of risk.

In the Haynes¹⁶ case, an on-duty police constable intervened to stop the defendant's team of runaway horses and was injured. The defendant contended that there was a break in the chain of causation occasioned by the intervention of a consciously acting person between the wrongful conduct of the defendant and the accident, therefore, disentitling the plaintiff to maintain an action. Further, it was said that the constable voluntarily assumed the risk by exposing himself to the danger. Finley, J. in his decision held that the constable owed a duty to the public to preserve life and that "he did not within the true meaning of the doctrine, agree to take a risk knowing all the circumstances.¹⁷ The decision to award damages for the injuries suffered was affirmed by the Court of Appeal. In the Court of Appeal, Greer, L. J. held that "an intervening act by a rescuer does not of itself necessarily prevent the court from coming to a conclusion in the plaintiff's favour if the accident was the natural and probable consequence of the wrongful act."¹⁸

Greer, L. J. referred to the American case of Eckert vs. Long Island Railroad Co.¹⁹ as authority for the proposition that the doctrine of voluntary assumption of risk should not apply to the rescue cases. In his opinion, the American authority was especially applicable in the present case because the injured rescuer was one who might readily be anticipated to come to the rescue. The court followed the trend that had been established in the United States and Canada and allowed the rescuer to recover. In dealing with the decision of the court in Brandon²⁰, as it pertained to the issue of a new intervening action. Maugham, L. J. states, "that the decision to allow the rescuer to recover is not dependent on whether he acted deliberately and rationally rather than in a panic.²¹

The courts were coming to the realization that it made very little sense to deny compensation to the brave Samaritan who voluntarily risked injury to himself to help someone in danger, while allowing the person who acts instinctively to recover. The instinctive actions of the rescuer were deemed to be "non-voluntary and, therefore, not applicable to the voluntary assumption of risk defence.²² The distinction between the two situations is far too vague and arbitrary and is capable of leading to grave injustice. As Greer, L. J. stated, "it is not essential that a rescuer act on the spur of the moment. It would be absurd to say that if a man deliberately incurs a risk, he is entitled to less protection than if he acts on a sudden impulse.²³ It is correct to describe the rescue act as non-voluntary"²⁴ in order to rebut the general rule regarding voluntary assumption of risk. With the decision of the court in Haynes vs. Harwood,²⁵ one of the major inequities of the law relating to rescuers was removed; and the law relating to rescuers was removed; and the law was in a position to evolve sensibly.

After the Haynes²⁶ case, there was an increasing desire in the British courts to reward the brave rescuer and to further encourage rescue. Initially reluctant to compensate the rescuer, the English courts have followed the lead established by their North American counterparts as clearly demonstrated by the English Court of Appeal's reliance on the case of Eckert vs. Long Island Railroad Co.²⁷ This willingness to reward the rescuer is premised on the fact that the rescuer acted reasonably in the circumstances and held a reasonable belief that a situation of peril existed.