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

manner, as when imposing duties on parents and guardians. 122 As the KansasSupreme Court stated in Union Pacific Railway Co. v Cappier: 123"feelings of kindness and sympathy may move the Good Samaritanto minister to the sick and wounded at the roadside, but the lawimposes no such obligation; and suffering humanity has no legalcomplaint against those who pass by on the other side."In this respect, the Commission has concluded that while altruism plays animportant part in the formation of legal principles, the concept of forcedvolunteerism appears to be a contradiction in terms.(f)Causation2.74 Weinrib notes that an absolutely necessary feature of the law of tortis the causation of harm. He points out that central to our conception of tort laware, firstly, „the bipolar procedure that links plaintiff and defendant‟ and,secondly, the „causation of harm‟. He states that the causation of harm requiresan act that results in suffering:“[S]uffering by the plaintiff that is independent of the defendant‟sdoing has no significance for tort law. Accordingly, no liability lies forfailure to prevent or alleviate suffering.” 1242.75 As the Commission noted in the Consultation Paper, 125 if inaction isincapable of causing harm, then it cannot form the basis for a claim innegligence. If negligence were to concern itself with inaction, this would be akinto creating a conduct offence under negligence, which would go against thebasis of negligence, which seeks to redress those situations in which damagehas been caused. Kortmann points out the confusion, however, that has arisenbetween the issue of causation and that of duty on the other hand. 126 Our veryunderstanding of the term “cause” implies a positive interference rather than amere inaction. However, instances involving an affirmative duty to act do notappear to present any particular difficulty in our acceptance of the issue thatinaction may, in fact, “cause” harm. It is Kortmann‟s contention, therefore, thatinaction is just as likely to give rise to harm as positive action, however, it is onlywhere there is a duty to act that legal liability will arise.122123124125126See the critique of the approach to this issues in the Consultation Paper in Byrneand Binchy, Annual Review of Irish Law 2007 (Round Hall, 2008), pp.390-1.72 P. 281 (1903).Weinrib The Idea of Private Law (Harvard University Press 1995), at 12-14.LRC CP 47-2007 at paragraph 2.43.Kortmann Altruism in Private Law (Oxford University Press 2005) at 24-27.43