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A legal duty to act?

“True possession is proved only by giving; all you are unable to give possesses you.” Andre Gide

Underlying this controversial question, there can be found a great battle raging – an age old battle between the diametrically opposed ideologies of left and right, socialism and individual liberty. This is why the question is so attractive to a student of law, and why at the very beginning of this essay I shall assert that there will be no correct answer to this loaded question. The answer lies with the democratic will of the people : if the majority values their individual rights and liberties over that of social coercion for overall public benefit, then the answer is a no, and vice versa. Thus the essay already turns away from answering the question per say, and is henceforth duty bound to outline the arguments for and against the establishment of a positive duty to rescue and to highlight the strengths and weaknesses of the respective arguments, so that at the end of the day, the essay can perform the social obligation of informing the reader/s to enable them to decide for themselves whether the answer to the question is yes or no. The end result being a better informed general public, so that the correct answer will become obvious to judges and legislators, pressuring them to act (or omit to act) accordingly.

The Current Situation : Where We Stand

The current common law in Australia is basically sympathetic to the position typified by Sir James Fitzjames Stephens in 1883 : “People [who let a child drown when a rescue is easy] are no doubt shameful cowards, but they can hardly be said to have killed the child.” In legal terms, this translates into a general reluctance by courts to recognise a duty of care for non actors who fail to provide a benefit to another in need of rescue. All in all however, Australian courts to date have largely ignored the failure to rescue issue in law.

However, the common law has developed certain ‘special conditions’, where if met, a positive duty to rescue will be recognised.

The first of these conditions is where there is a special relationship between the person in peril and the potential rescuer. Most of the cases arise from a failure to provide medical attention or the necessities of life to vulnerable people. However, family relationships have been endorsed.

The second exception is where there has been relavent past conduct on the part of the person failing to act. The prime example for this is where you injure a plaintiff by negligently driving into her after having fallen asleep at the wheel. The actual conduct was a failure to rescue, by not swerving, but the driving while tired in the first place is deemed sufficiently relevant past conduct to establish a duty of care

Thirdly, a duty of care for failing to provide a benefit will be recognised when a potential rescuer occupies a position which requires him to act. The position may be an official one, such as a life guard or security officer, or it may be one which arises from a contract of employment. This recognised duty is demonstrated in Rubie v Faulkner.

Finally, where the potential rescuer is the owner of property connected with the peril, a positive duty will likely be enforced. Extra responsibility is recognised on a land owner that invites people onto his land, to rescue them from potential harm as that harm will often be partly the fault of the landowner, the risk arising on his property.

Further to these areas, a view has been expressed that the courts in Australia will impose a liability for failure to rescue when the defendant is a public rescue body. There have been no reported cases which confirm this position, but since Sutherland Shire Council v Heyman, it has been apparent that reliance plays an important role in determining proximity and that reliance on public rescue authorities would not be difficult to establish in certain circumstances, nor would there be much difficulty in establishing that the rescuers were aware of this reliance.

It is clear from these exceptional recognitions of a positive duty to rescue, that causation and proximity are conceptually crucial for the formulation of such a duty. As such these two concepts play a key role in the ideological arguments for and against the recognition of a positive duty to rescue.

Proximity : Up Close and Personal

Currently in Australian Tort law, the question “who is bound to render assistance?” is largely answered by the extent to which proximity can be found in the relationship.

Justice Deane in the cases of Sutherland v Heyman, and Jaensch v Coffey outlined what is meant by proximity and the different categories of this notion that are legally relevant in establishing a duty of care. To begin with, proximity generally is a relationship of “nearness and closeness” between the two parties, to a sufficient degree, that it is conscionable to recognise a duty of care. Reasonable foreseeability of the injury, it is said, is a good indication that proximity is present, but the two notions are distinct. In addition, Deane made it clear that policy would also need to be considered in the formulation of a duty of care, saying “the notion of proximity is obviously inadequate to provide an automatic or rigid formula to determining liability”.

There are four arms to proximity : physical, causal, circumstantial and temporal. It seems that in failure to rescue cases, the artificial bar which must be cleared in order to establish a duty of care is significantly higher than in normal liability claims. In Lowns v Woods, the court used the notion of proximity to establish a duty to rescue. As overwhelming proximity was found, and the defendant had a present and apparent ability to effect an easy rescue, he was held liable for the plaintiff’s injury.

Through this use of proximity, the courts have aimed to confine the scope of the duty to rescue such that only the most reprehensible failures to rescue will result in establishing liability.

Overall

The duty of care in torts has been a great source of instability and confusion, mainly because the law tries to satisfy two, frequently perpendicular goals; of restoring loss suffered by victims and keeping a lid on the scope for liability, to prevent Australian society from becoming overly litigious. The current situation therefore, seems to be that the common law is prepared to acknowledge a duty to rescue, in certain defined situations where some special “proximity-creating” factor is present. So, the current situation as it is, the main source of contention amongst legal and philosophical commentators, is whether it would be legitimate to extend this positive duty to a broader class of people, and whether it would improve the legal and social system to do so. In other words, should the test of proximity be relaxed to the level used in the establishment of a duty of care for positive acts which cause injury to victims?

The Argument Against, With a Little For……

The basic tenet of the argument against a positive duty to rescue is the right wing liberalist assertion that it is illegitimate to use the coercive power of the state to enforce positive duties of beneficence. This argument however entirely depends on where you believe the legitimacy of state power comes from and how far states can go in terms of encroaching on individual liberty. Advocates of popular sovereignty such as John Locke believe that the sovereign’s legitimacy lies with and depends on the approval of the citizenry as a whole. Further to this, the state should not limit the “natural rights” of man, rather every man should be free to live a life of liberty, in the pursuit of happiness – whatever that may mean for the individual. Thomas Hobbes however would reject this argument, saying that the sovereign grants any rights that citizens are lucky enough to have, and that far from being ‘natural’, none of these freedoms would exist at all in a true state of nature, where life is lawless, “nasty brutish and short”. Another opponent to the imposition of a general duty to rescue is Justice Kearney, who in the case of Salmon examined the ‘duty to rescue’ legislation introduced in the Northern Territory. Kearney stated that a general duty to rescue law is “vague and unworkable” unless limited to cases of motorists who fail to assist in accidents.

Lord Atkin also makes a case against coercing the Samaritan to be good, stating, “moral wrong-doing could not be treated as giving rise to a right to demand relief to every person injured by that wrong doing. Yet Atkin in his famous neighbour statement appears to advocate a positive duty to rescue, appealing to our conception of the reasonable person : “Each of us must take care to avoid ‘acts’ or ‘omissions’ which we can reasonably foresee would be likely to injure our ‘neighbour’.” His definition of ‘neighbour’, that being a person who is “closely and directly affected” by our acts and omissions that we ought reasonably to have them in our contemplation when directing our minds to the act or omission in question, seems to satisfy the proximity requirement for establishing a positive duty to rescue.

Further to Lord Atkin, Lord Reid also draws the line at the law having to directly reflect public morality, in defense of individual liberty: “There may be a moral duty [to rescue], but it is not practicable to make it a legal duty…” In the above dictum from Dorset Yacht Company v Home Office, Reid also implicitly reveals his conservative liberalism, a belief that a rescue duty would be too burdensome on the rights of the individual and the efficiency of the legal system. Macaulay makes a similar point but adds no weight to this argument with his tautologous statement of nulla poena sine lege, or in other words, only illegal omissions should be punishable by law.

Other opponents of a rescue duty draw upon basic policy considerations to reject proposals for reform in this area. Justice Kirby in the Pyrenees and the ruling in OLL Ltd v Secretary of State for the Home Department asked the question, was it “fair, just and reasonable” to impose a general duty to rescue of the proposed scope, and both came up with an answer in the negative.

The Argument For, With a Little Against…..

Advocates of a positive duty to rescue come from many different circles and disciplines, not often associated with each other. First and foremostly, the Christian moralists spout their dogma from lofty heights in support of a duty to rescue. To be a good Samaritan, or in other words, to “love thy neighbour as thyself” is encouraged in the bible and so, it is argued, should be enshrined in the common law as well. From a democratic perspective, as Australia is religiously neutral, this argument would not hold any more weight than it does for abortion.

In perhaps a historical first, Marx would most probably side with the absolutist Hobbes, in this case, advocating the supposition that State coercion is legitimate if it materially increases the overall public good of society, to a greater extent than it deprives the individual of his or her liberty.

From a psychological and sociological standpoint, Sally Kift raises a compelling argument for the imposition of a rescue duty. Society, in modern times, it is recognised, has become more withdrawn and private and people are less inclined to intervene into other people’s affairs. With respect to rescue cases, these developments are seen as a worrying trend, especially considering the poor reflection it has on society as a whole when some of the more extreme cases of failure to rescue occur. Kift therefore asks the question, would a legal duty reinforce the moral duty, giving it “specific content” that would appropriately guide people in the face of conflicting emotional impulses? Evidence she cites from other countries suggests it would. Further to this, according to statistical analysis, the most powerful predictor of a bystander’s willingness to intervene in a criminal assault was the perception of how willing other bystanders were prepared to intervene – 94% of those analysed said they would intervene if they thought others would likely intervene also.

Philosophically related to the above point is the utilitarian argument for a duty to rescue, typified by Bentham: “Every man is bound to assist those who have need of assistance, if he can do it without exposing himself to sensible inconvenience. This obligation is stronger, in proportion as the danger is greater for the one, and the trouble of preserving him the less for the other.” This, Bentham believed, was part and parcel of an idyllic penal system which would promote the greatest happiness for the greatest number. John Stuart Mill also advocated a duty to rescue on these grounds: “A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury.” This statement has caused consternation amongst legal commentators as it implies causation. Typified in Kleinig, critics say, “It is improper to say that the bad Samaritan causes the death of the person he neglects to rescue.” However, Kleinig goes on to argue, quite convincingly that a bystander’s nonfeasance is still a causally relevant factor in that person’s death.

If it can be successfully argued that a failure to rescue, while not the direct cause of injury, is a causally relevant factor, then a new argument emerges in favour of the recognition of a duty to rescue. With the emergence of apportionment legislation and contributory negligence seeing increasing use in Torts cases, it becomes clear that the bad Samaritan will only be required to compensate for a fraction of the total loss. The resulting consequences of the common law recognising and imposing a general duty to rescue would therefore (except in the most extreme cases of neglect) be a mere “slap on the wrist” for the nonfeasant tortfeasor.

Some legal commentators claim that the law adequately protects those that opt to rescue and therefore it would not be too burdensome to recognise this general duty to rescue, and would not result in unfair liability being placed on the rescuer. Courts do recognise and enforce a duty owed to the rescuer if injured in the act of that rescue, by the original causer of the risk. In addition, Rescuers are only expected to meet the standard of a reasonable person under the circumstances. This standard of care expected of the rescuer would also be affected by the exigencies of the situation : in an emergency one is not always expected to calculate risks to highly.

However, others claim that rescuers are far from adequately protected by the law. Franklin suggests that having any kind of standard of care for those kind enough to assist, when no duty or standard of any kind is placed on the nonfeasant bystander, is in effect a deterrent to rescue. Kleining points out that even if the rescuer ends up succeeding the standard of care in a court of law, he has had to go through the “agonies attached to litigation” – and in that sense is inadequately protected by the common law. Honore, however says it best: “…if the law does not encourage rescue, it is sure to discourage it…” This appeals to the notion (and is relavent to the bystanders themselves) that ‘if you are not part of the solution, then you are part of the problem.’

Misfeasance v Nonfeasance : A Conceptually Tautologous Debate

I have omitted to discuss the misfeasance/nonfeasance problem, which many of the commentators spent considerable time debating. It merely takes a slight shift in perception to completely change the dynamics of an act, especially in relation to the rescue cases. In most rescue cases, there is a crucial point in which a decision is made, where the bystander can choose to either rescue, or neglect to rescue. In other words, s/he can do a or b. If s/he chooses b, has she not neglected to do a, and vice versa, if s/he chose to do a? An example : Mrs Brown, whom crashed her car into a pedestrian, would ordinarily be considered to have omitted to put her foot on the break. But it takes no conceptual leap of faith to assert that Mrs Brown negligently DROVE her car into the pedestrian, giving it that misfeasant quality judges and legal commentators seem so keen on having before a duty can be established. A question to highlight how ludicrous this debate is : Did the terrorists who attacked the US on the 9/11/2001, crash into the World Trade Centre, or did they rather merely neglect to miss?

As such, any argument against a duty to rescue based on a misfeasance/nonfeasance basis seems to be a little weak, if not completely pointless.

Conclusion?

As this question is essentially an ideological debate between the left and right, there was never going to be a correct answer. Both sides are equally fervent in their belief of the merits of their respective ideologies, and, one supposes, always will. Further, both arguments, for and against, do have meritorious and convincing arguments backed up with impressive authorities. However, without wanting to colour the opinion of the reader/s, thus spoiling the original social objective this of this essay, I will forward an opinion. The argument for a duty to rescue appears the stronger for several reasons:

Firstly, the affirmative stance drew upon a wide range of sources from a number of different disciplines, from law, philosophy and economics to religion, sociology and psychology. The negative argument seemed to be confined to the realms of ideology and philosophy.

Secondly, the argument against too often gave the impression of a traditionalist stance, afraid of change and progressive reform. History shows that change is inevitable and a fear of it is merely a sign of being close-minded and inwardly focused.

Lastly, by all reports, the introduction of rescuer laws in other, civil law countries has resulted in no great misplacement of liability nor has it resulted in an explosion of litigation.

The only limit I would place on a duty to rescue would be if it can be proven that to recognise the duty would be to significantly (ie- materially more than the majority of others) prevent a person from the enjoyment of his/her normal, every day life.

Bibliography

1. “Criminal Omissions & Public Duties” Legal Studies 1990 vol. 10, p 153 2. S Kift, “Criminal Liability and the Bad Samaritan : Failure to Rescue Provisions in the Criminal Law, Part 1” Macarthur Law Review 1(2) 1997 : 212-234. 3. M Menlowe, “The Duty to Rescue: The Jurisprudence of Aid” Dartmouth (1993) 4. R v Russell [1933] Victorian Law Reports 59. 5. Richard Kroon (1991) 52 Australian Criminal Reports, 15. 6. Rubie v Faulkner [1940] 1 KB 571. 7. Sutherland Shire Council v Heyman (1985) 157 CLR 424. 8. L Gruzman, “Liability of Search and Rescue Authorities for Negligence” 65 Australian Law Journal 646 (1991). 9. Jaensch v Coffey (1984) 155 CLR 549. 10. Donoghue v Stevenson [1932] AC 562. 11. Lowns v Woods (1996) Australian Torts Reports 81 – 376. 12. A McIntyre “Guilty Bystanders? On the Legitimacy of Duty to Rescue Statutes” Philosophy and Public Affairs 23(2) 1994 : 157-171. 13. T Hobbes “The Leviathon” Penguin (1999). 14. Salmon (1994) 70 A Crim Reports 536. 15. S155 Criminal Code 1983 (NT) 16. Dorset Yacht Company v Home Office [1970] AC 1004. 17. Macaulay, Notes on the Indian Penal Code, p 494. 18. Pyrenees(1998) 151 ALR 147 19. OLL Ltd v Secretary of State for the Home Department [1997] 3 All ER 897. 20. Russel, Bertrand, History of Western Philosophy, Unwin Paperbacks, 1981 pp 134-8 and 322-3. 21. L Katz, Bad Acts and Guilty Minds (Chicago 1987). 22. D Brosnan “Perceptions of Bystander Willingness to Intervene on Behalf of Victims of Criminal Assaults” Criminal Justice Policy Review 6(1) 40-54. 23. Bentham “Specimen of a Penal Code”, in Works, ed. J Bowning (Edinburgh 1843) vol 1. 24. JS Mill, “On Liberty” Penguin (1999). 25. J Kleinig “ Good Samaritanism” Philosphy and Public Affairs 5(4) 1976 : 391-413. 26. Hargrave v Goldman (1963) 110 CLR 40. 27. Chapman v Hearse (1961) 106 CLR 112. 28. M Franklin “Vermont Requires Rescue : A Comment” Stanford Law Review 25 (1972) : 51-60. 29. S Kift “Criminal Liability and the Bad Samaritan: Failure to Rescue Provisions in the Criminal Law, Part 2” Macarthur Law Review 1(2) 1997 : 258-281. 30. Denton “The Case Against Duty to Rescue” Canadian Journal of Law and Jurisprudence voll 4 1991 p101.

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