Alert Diver - DAN Europe

241 that “the common law does
not impose liability for what are
called pure omissions”, in other
words, there is no general duty
of care owed by one person
to prevent harm occurring to
another. Thus, applying English
law, those in the bible story
who passed the wounded man
by before the Samaritan came
along were entitled to do as they
did.
Whatever their moral duty, they
were under no legal duty to
come to his aid, and could not
be held liable in an English court
for failing to do so.
A duty to act only arises where
there is a relationship which
gives rise to such a duty. The
normal means by which a duty
of care will be created is by a
contract between the parties,
or by statute, such as the
Occupiers’ Liability Act 1957,
although the common law itself
has recognised that certain
relationships do give rise to a
duty to aid another: parent and
child, school and child, host and
his guests etc. However, this
does not alter the fundamental
principle that a man does not
in English law owe a general
duty to a stranger to come to his
aid, however great the peril the
stranger faces and however easy
it may be in the circumstances
to lend assistance without
exposing himself to danger.
The potential harshness of this
rule is best illustrated by an
American case, Osterlind v Hill
160 NE 301 (1928). Here A, a
strong swimmer, hired a canoe
to B, then sat on the shore and
watched B drown after capsizing
it. Even the fact that he had
hired the canoe to B was held
not to give rise to sufficient of a
relationship to create a duty of
care, and he was found not to be
liable. It would, of course, have
been different if the canoe had
been defective, but the claim
would then have been based on
the supply of faulty or dangerous
goods, not on a failure to respond
to an accident. It is to avoid the
creation of a society in which
people consider it best not to get
involved, or as the bible story
puts it, to pass by on the other
side of the street, that two US
states have by statute created a
duty to help a stranger (without
exposing oneself to danger)
backed up by modest criminal
penalties for failing to do so.
While the courts have been very
reluctant to impose liability for a
pure omission, once a person
faced with a ‘rescue situation’
does decide to act, the situation
is very different. A rescuer who
was under no duty to begin with
may assume a duty of care by
starting to come to this victim’s
aid, and may be found liable
if he makes matters worse.
This on the face of it surprising
proposition flows from the
distinction that the common law
draws between non-feasance,
an omission to act (for which
one cannot be liable without a
specific relationship creating a
SPECIAL INSERT
duty to act), and misfeasance,
an act wrongfully or negligently
performed, for which one can
undoubtedly be liable.
Many legal commentators
have argued that this ‘front
loading’ of the issue onto the
question of whether there is a
duty of care is less satisfactory
than would be the approach of
acknowledging the existence of
a general duty of care owed by
us all to our fellow man, but then
judging the reasonableness
of a person’s response in
light of all the circumstances,
including in particular any risks
his intervention would create to
himself or third parties. Such
a development would bring
English law more into line with
the mainstream of European
jurisprudence from civil code
jurisdictions, but the case law
reveals little movement in this
direction, except that the majority
of the members of the House
of Lords in Smith v Littlewoods
Organisation Ltd seemed by
implication to acknowledge the
possibility of liability for a pure
omission to act, although they
made no clear pronouncement
to that effect.
We have looked, then, at the
position of the bystander who
decides not to get involved, who
cannot be held liable unless
he owes the victim a specific
duty to act because of some
relationship between them, and
at the position of that person if
he decides he cannot stand idly
39 /
3 / I FIRST 2010