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

(d)Economic Arguments2.72 In Stovin v Wise, 118 Lord Hoffmann stated that a legal obligation toundertake a rescue could amount to the state appropriating the citizen‟sresources without compensation. In other areas of tort law, price deterrencehas been established as a ground for the imposition of liability on a person whocauses loss or damage to others. 119 If a person is held liable for the damageand loss that they cause to others, this person will eventually refrain fromcarrying out the harmful activity. 120 As Lord Hoffmann pointed out in Stovin v.Wise, the efficient allocation of resources usually requires an activity shouldbear its own costs. He considered that if an activity were able to benefit frombeing able to impose some of its costs on other people, or „externalities‟ as theyare economically termed, the market would be distorted because the activitywould appear cheaper than it really is. Thus, liability to pay compensation forloss caused by negligent conduct acts as a deterrent against increasing the costof the activity to the community. But there is no similar justification for requiringa person who is not doing anything to spend money on behalf of someone else.Lord Hoffmann noted that except in special cases (such as marine salvage) thecommon law does not reward someone who voluntarily confers a benefit onanother. So there must be some special reason why he should have to put hishand in his pocket. It would seem that Lord Hoffmann based his conclusionshere on the fact that inaction does not cause harm. If this had not been thecase then Lord Hoffmann‟s argument might easily be extended to justify theimposition of the cost of harm on the person whose failure to act had “caused”it.(e)Altruism2.73 Another argument involved relates to the principle of altruism. AsWeinrib has noted, “the problem of rescue is a central issue in the controversyabout the relationship between law and morality”. 121 The basic theory ofaltruism shows that persons are morally bound to assist one another. A GoodSamaritan is generally, therefore, said to act out of the kindness in his or herheart. The Commission considers that a positive legal duty to intervene toassist another, therefore, would run counter to this principle, although it acceptsthat, in some instances the law can impose a duty to behave in an altruistic118119120121[1996] 3 All ER 801 at 819.See Kortmann Altruism in Private Law (Oxford University Press 2005) at 18- 23.See Calabresi “Some Thoughts on Risk Distribution and the Law of Torts” (1961)70 Yale LJ 499.Weinrib, The Case for a Duty to Rescue, 90 Yale L.J. 247, 293 (1980).42