The liability of rescuers

Courtoons cartoon.The Law Reform Commission last night (pdf) launched its new Report on The Civil Liability of Good Samaritans and Volunteers (pdf), following up on its November 2007 Consultation Paper (pdf) on the issue.

The Common Law does not recognise a duty to attempt a rescue, even where the rescue would be relatively easy, and the Commission recommended against imposing one by statute. However, where a rescuer feels compelled to attempt a rescue, the Commission’s recommendations cover the duty of care owed by rescuers to those being rescued. In particular, the Commission recommends that volunteer organisations or undertakings should conform to the ordinary standard of reasonable care in negligence, but that an individual rescuer should be liable for injury caused in the course of the rescue only if that is caused by gross negligence:

a) The rescuer was, by ordinary standards, negligent;
b) The negligence caused the injury at issue;
c) The negligence was of a very high degree;
d) The negligence involved a high degree of risk or likelihood of substantial personal injury to others; and
e) The rescuer was capable of appreciating the risk or meeting the expected standard at the time of the alleged gross negligence.

Finally, while the recommendations cover the duties owed by rescuers, the Commission is careful to recommend that it not affect any civil liability that arises as a result of any other statutory duty or duties. This is welcome, but incomplete; not only might there be other statutory liabilities, there are at least two further possible common law claims as well. First, if the situation calling for rescue was the result of wrongdoing (as by the commission of a tort), then the wrongdoer (the tortfeasor) will owe a duty of care not only to the victim of the wrong (tort), but also to the rescuer (see, generally, “Danger Invites Rescue. The Tort of Negligence and the Rescue Principle” (1992) 14 Dublin University Law Journal 65; Mendelson “Quo iure? Defendants’ liability to rescuers in the tort of negligence” (2001) 9(2) Tort Law Review 130). Moreover, if the rescue confers a benefit, then the person who has received the benefit may be liable to make restitution of that benefit.

However, if the draft Bill appended to the Report, or something akin to it, were to be enacted, then rescues might very well be encouraged, and we will all be much better off.

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