civil liability of good samaritans and volunteers - Law Reform ...

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inconvenience to the would-be-rescuer. They refer to examples of cases wheredoctors have passed road accidents without stopping to help, even though theassistance of a doctor may have been urgently required 19 and where adultshave let toddlers drown in shallow waters without making an effort to helpthem. 20 McMahon and Binchy note, however, that where the adult is also theparent of a child, a duty to rescue arises and the Commission discusses thisbelow in the context of other specific examples of a legal duty to rescue.2.13 Smith and Burns note that the courts have established that “there is abasic difference between doing something and merely letting somethinghappen”. 21 It would therefore appear that no matter how cold-blooded andrepulsive it would be to stand by idly and watch the person drown there are nolegal repercussions for such immoral conduct.2.14 This position has not, however, always been certain and since theearly development of the legal concept of negligence (in essence, a duty ofcare, a failure in the duty of care and an injury caused by this failure) it wasunderstood to cover both acts (feasance) and omissions (nonfeasance). InBlyth v Birmingham Waterworks Company, 22 Alderson B defined negligence asfollows:“Negligence is the omission to do something which a reasonableman, guided upon those considerations which ordinarily regulate theconduct of human affairs, would do, or doing something which aprudent and reasonable man would not do”. 232.15 On the face of it, this definition did not indicate that there was anydifference in the law‟s approach to acts (feasance) and omissions(nonfeasance) and that both types of behaviour were measured against thestandard of the reasonable man. However, as Pollock pointed out, 24 AldersonB‟s definition must have been based on the presumption that the party whoseconduct was in question was already under a „duty of taking care‟. It was at this192021222324Smith v Rae 46 OLR 518 (CA, 1919); Hurley v Eddingfield (1901) 156 Ind 416, 59NE 1058, cited in McMahon and Binchy at p.170.Osterlind v Hill (1928) 263 Mass 73, 160 NE 301; Yania v Bigan (1959) 397 Pa316, 155 A 2d 343, cited in McMahon and Binchy at p.170.Smith and Burns, „Donoghue v Stevenson – The Not so Golden Anniversary‟,(1983) 46 MLR 147, at 154.(1856) 11 Ex. 781.(1856) 11 Ex. 781 at 784.Pollock, The Law of Torts (1887), p.355, cited in Kortmann, Altruism in PrivateLaw (Oxford University Press, 2005) at 52.22
„duty‟ stage of the trial that the judicial approach in cases of omissions(nonfeasance) differed from cases of acts (feasance). For acts and theirresults, Pollock explained, the actor was generally held answerable. For mereomission he was not, unless he was under some specific duty. 252.16 In the UK decision Donoghue v Stevenson, 26 in which a general legalduty of care in negligence was developed, the leading opinion delivered in thecase by Lord Atkin drew directly on the biblical parable of the Good Samaritan.For this reason, the duty of care developed in the case is commonly known asthe “neighbour principle.” The duty of care developed in Donoghue v Stevensonhas been applied many times in Irish courts 27 and has acted as a “general roadsign” for the development of this area of civil liability. 28 The Commission notestwo aspects of Lord Atkin‟s opinion for the purpose of this Report. First, hediscussed the connection between moral principles and legal principles.Second, he referred to omissions in setting out the legal duty of care of amanufacturer (the defendant) whose defective product (ginger beer) causedinjury (gastroenteritis) to a consumer (the plaintiff).2.17 As to the connection between law and morality, Lord Atkin pointedout in Donoghue v Stevenson that there are many legal principles which have amoral basis but that it was not possible to impose legal sanctions for failing tomeet private moral principles to which others might subscribe. He stated:“The liability for negligence, whether you style it such or treat it as inother systems as a species of „culpa‟, is no doubt based upon ageneral public sentiment of moral wrongdoing for which the offendermust pay. But acts or omissions which any moral code wouldcensure cannot in a practical world be treated so as to give a right toevery person injured by them to demand relief. In this way rules oflaw arise which limit the range of complainants and the extent of theirremedy”. 292526272829Kortmann Altruism on Private Law (Oxford University Press, 2005) at 53 alsorefers to Bulman v Furness Railway Company (1875) 32 LT 430 at 432, where adistinction is made between „active‟ and „passive‟ negligence, and Piggott,Principles of the Law of Torts (1885), p.208, who distinguishes „positive‟ and„negative‟ duties.[1932] AC 562.See McMahon and Binchy Irish Law of Torts 3 rd ed (Butterworths, 2000), p.118,fn20.McMahon and Binchy, p.119.[1932] AC 562 at 580.23
Page 1: ReportCivil liabilityof goodsamarit
Page 4 and 5: LAW REFORM COMMISSION‟S ROLEThe L
Page 6 and 7: LAW REFORM RESEARCH STAFFDirector o
Page 8 and 9: CONTACT DETAILSFurther information
Page 10 and 11: TABLE OF CONTENTSINTRODUCTION 1A Re
Page 12 and 13: CHAPTER 5 SUMMARY OF RECOMMENDATION
Page 14 and 15: Law Reform (Miscellaneous Provision
Page 17 and 18: TABLE OF CASESAlexandrou v Oxford [
Page 19 and 20: Kent v Griffiths [2001] QB 36 EngKi
Page 21 and 22: INTRODUCTIONARequest by the Attorne
Page 23: extent to which current law in Irel
Page 26 and 27: who may have had a “reasonable ex
Page 28 and 29: 1.10 The 2006 Report of the Nationa
Page 30 and 31: Work had also been done on planning
Page 32 and 33: 1.21 The Irish Government‟s 2000
Page 34 and 35: ecommendations to the Government on
Page 36 and 37: that the enactment of legislation s
Page 38 and 39: circumstances in which a duty to in
Page 40 and 41: Russia, Switzerland and a number of
Page 44 and 45: 2.18 Lord Atkin then went on to exp
Page 46 and 47: intervene and rescue. 39 This has b
Page 48 and 49: a duty to control the conduct of ot
Page 50 and 51: voluntarily assumed responsibility
Page 52 and 53: competence and ability to treat the
Page 54 and 55: property in a public place and a ve
Page 56 and 57: is an occupational first-aider pres
Page 58 and 59: human being whose life is in peril
Page 60 and 61: without an option to avoid being su
Page 62 and 63: (d)Economic Arguments2.72 In Stovin
Page 64 and 65: (g)Indeterminate Number of ClaimsIn
Page 66 and 67: there is no greater legal basis for
Page 69 and 70: 3CHAPTER 3DUTY OF CARE AND STANDARD
Page 71 and 72: whereby the courts may, as a matter
Page 73 and 74: conduct in the future. 18 In this w
Page 75 and 76: “Any person who intervenes volunt
Page 77 and 78: leaves the victim in a worse positi
Page 79 and 80: Samaritan could be held liable for
Page 81 and 82: 3.36 It must also be borne in mind
Page 83 and 84: permissible in the case of ordinary
Page 85 and 86: scenarios where there is a lack of
Page 87 and 88: Commission observes that a finding
Page 89 and 90: In this regard, it is noted that th
Page 91 and 92: escuer, a quality service is provid
Page 93 and 94:
3.74 Where the undertaking is a pro
Page 95 and 96:
volunteer fails to turn up, it is v
Page 97 and 98:
equivalent services. Furthermore, t
Page 99 and 100:
precedent for future claims against
Page 101 and 102:
would seem to imply that the standa
Page 103 and 104:
that it was unlikely that liability
Page 105 and 106:
4CHAPTER 4THE CONTENTS OF THE GOOD
Page 107 and 108:
often important to distinguish care
Page 109 and 110:
made those decisions, transfers to
Page 111 and 112:
condition that the Good Samaritan a
Page 113 and 114:
defined “render” as “[t]o giv
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4.24 The Commission notes that some
Page 117 and 118:
equirement of rendering emergency c
Page 119 and 120:
statutes in the United States, whil
Page 121 and 122:
property is not included. To the ex
Page 123 and 124:
4.41 In the Australian Capital Terr
Page 125 and 126:
surgical aid in case of urgent need
Page 127 and 128:
(2) General scope of legislation4.5
Page 129 and 130:
heart action or circulation of bloo
Page 131 and 132:
emergency contains in section 11 of
Page 133 and 134:
precise definition of “good faith
Page 135 and 136:
4.82 In the Consultation Paper 135
Page 137 and 138:
the organisation‟s work in determ
Page 139 and 140:
5CHAPTER 5SUMMARY OF RECOMMENDATION
Page 141 and 142:
APPENDIXDRAFT CIVIL LIABILITY (GOOD
Page 143 and 144:
DRAFT CIVIL LIABILITY (GOOD SAMARIT
Page 145 and 146:
(e) The individual was capable of a
Page 147:
Effect on common law and statutory
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