Liability of Search and Rescuers - Part 4

SARBC

Search and Rescue Society of British Columbia

What is the rationale for making the distinction between a regular rescuer and a professional rescuer? The case of Black Industries Inc.,⁶⁷ relying on Maltman vs. Sauer⁶⁸ expresses the view that public policy demands that "recovery be barred whenever a person, fully aware of a hazard created by another's negligence, voluntarily accepts for remuneration.⁶⁹ This stems from the concern of over compensating the injured rescuer. For example, a professional rescuer would receive remuneration for performing his job. Concerned, therewith, would be benefits such as Workers Compensation, if he was injured while in the course of his employment. If the injured party was allowed to recover in tort as well, that would be three sources of compensation for the one party. This general fear of allowing people to profit from their injures explains why the American courts tend to rely on the professional rescuer doctrine.

Canadian courts soon followed the American lead in recognizing that the rescue cases should be an exception to the defence of voluntary assumption of risk. Kimball vs. Butler Brothers⁷⁰ was the last case in which a Canadian court relied on the voluntary assumption of risk doctrine as a defence to a claim by a rescuer. In this case, the deceased was employed by the defendant as a civil engineer to work on a tunnel. A fire broke out in one of the tunnels they were constructing, and the plaintiff went to extinguish the fire and rescue the workmen. He was overcome by fumes and suffocated. The plaintiff's estate contends that it was negligence on the part of the employer, in not maintaining proper supervision and permitting the improper use of fire, that caused the plaintiff's death. The court found that the deceased was acting solely as a volunteer and not under any directions from his employer. The court also found that he was fully aware of the danger that existed and yet willingly went into the tunnel a second time. As such, the court held that he "took all the risks in the hope, and on the chance of saving the lives of his fellow men, who were in great danger; and it is nonetheless to his credit that he did so voluntarily and spontaneously, and so without any legal claim upon anyone for anything that he may suffer from the dangers which he was encountering."⁷¹ Unfortunately, he was unable to recover.

The case of Seymour vs. Winnipeg Electric Railway⁷² was a breakthrough in Canadian jurisprudence when it rejected the voluntary assumption of risk defence when used in conjunction with the rescue cases. The plaintiff alleged that the defendants, by negligently running a street car at an excessive speed, endangered the life of a child who was upon, the track and that he in endeavouring to rescue the child was himself injured.⁷³ The court held that the street railway company was under a duty to exercise care in guarding against accidents to people on their tracks. Richards, J. held that "in such a case, it is foreseeable that someone, like the plaintiff, would risk his/her own safety, and further that the company must guard against injury to such a man as well as to the person he tries to rescue.⁷⁴ In the Seymour⁷⁵ case, the rescuer was allowed to recover. Justice Richards reasoned that: a rescuer could recover from a negligent wrongdoer. That the trend of a modern legal thought is towards holding that those who risk their safety in attempting to rescue others who are put in peril by the negligence of third persons are entitled to claim such compensation, from such third persons for injuries they receive in such attempts.⁷⁶

It was also stated that: to save human life is a lawful act . . . and a man is doing a lawful and proper act in endeavouring to rescue the person so threatened. His conduct in placing himself in danger in order to effect rescue, unless he is needlessly reckless in exposing himself to injury, is not negligent and does not absolve the third party of responsibility for their negligence.⁷⁷

The Canadian courts had recognized the need to classify the rescue cases apart from the other categories of cases and to make them an exception to the defence of voluntary assumption of risk. The law had finally come to the point of willingly encouraging rescue as well as compensating the rescuer for his heroic efforts. The Canadian law, like the American law, continued to broaden the category of situations in which the rescuer would be allowed to recover. The Canadian courts rejected the derivative approach that had been relied upon in the United Kingdom for so many years. The case of Haigh vs. Grand Trunk Pacific Railway Co.⁷⁸ (G.T.P.R.) supports the rejection of the derivative approach. In this case, a brakeman for the defendant company, was injured when he attempted to apply the brakes and stop the train so as to avoid the impending collision of the train and caboose. It was held that "if an intervener is injured, he can recover on the ground that there was negligence against the person in danger or negligence against himself after his intervention."⁷⁹ Therefore, it can be seen that the right of the rescuer to recover is not dependent on there being any duty owed to the imperilled victim. Back, J. states that: a person is justified in intervening to save from apparent probable death or serious injury a third person independently of any contractual or natural relationship between the person in danger and the intervener, unless his intervention was unnecessary, rash or reckless under the circumstances.⁸⁰

Here, the actions of the rescuer were not held to be unnecessary, rash or reckless; and he was allowed to recover. Again, as in the United States, it can be seen that in Canada, the rescuer's right to recover is dependent upon the belief in a real or perceived danger coupled with a reasonable rescue attempt in the circumstances and not a specific duty owed by the wrongdoers to the rescued party.

The case of Dupluis vs. New Regina Trading Co. Ltd.⁸¹ was a temporary obstacle for the rescuer seeking to recover damages for injuries suffered in attempting to rescue persons who negligently imperilled themselves. In this case, the defendant's employee had gotten her feet caught between the floor of the elevator shaft and grill work and was suspended downward. The rescuer, in attempting to help her, was killed. His estate commenced an action against the woman's employer. The court found that the rescued party, through her own negligence, endangered herself. The court held that the defendant company should not be liable to the deceased rescuer as there was no negligence on the party of the company towards the rescued. Although it is generally accepted that the right of the rescuer to recover is not derived from that of the rescued party, this is not to say that "it is independent of negligence as to the rescued.⁸²

This development in the law is based on the reasoning that: when a person, in breach of duty toward another, places the latter in danger, he, as a reasonable man, should foresee that anyone seeing such other in danger will react to the spectacle and attempt a rescue. It is thus the danger, actual or apprehended to that other which brings the rescuer within the ambit of the negligent party.⁸³

Therefore, "there must be an exigency caused by the defendant's wrongful conduct in order for the rescuer to have a claim against the defendant.⁸⁴ In Dupuis,⁸⁵ there was no wrongful conduct on the part of the defendant employer towards the rescued party; and as such, there could be no separate and independent wrongful conduct towards the rescuer.

With respect to the argument of vicarious liability of the employer for the actions of the employee, the Saskatchewan Court of Appeal held that, "while a defendant must respond in damages to a rescuer who is injured in going to the rescue of a person endangered by the defendant's negligence, a rescuer has no cause of action against a defendant for injuries sustained in going to the rescue of the defendant's servant whose own negligence placed him in peril.⁸⁶ The basic reasoning for this is explained by Cecil A. Wright: to say that there should be liability where no one save the rescued party is at fault . . . would result in the imposition of strict liability for inevitable accidents.⁸⁷

While the plaintiff could not recover from the defendant, the law remained unclear as to whether he could have recovered against the rescued party. It was stated in an editorial note of the Dupuis⁸⁸ case that "the good Samaritan quality of the doctrine (rescue doctrine) does not, however, carry to the extent of allowing a rescuer to recover for injuries suffered in rescuing a person who imperils himself by his own negligence.⁸⁹ This was to remain an obstacle in the Canadian law for some time. Cecil A.. Wright, however, submits that "there is no reason why careless conduct for one's own safety should not involve liability towards a rescuer who seeks to mitigate the harm likely to result from such carelessness. ⁹⁰ As was illustrated by the above discussion of the British cases, the rescue doctrine was not applied where the defendant imperilled himself until the case of Baker vs. Hopkins⁹¹ in 1958. Consequently, until the decision in Baker⁹², there was no judicial authority, save for the American cases, on which the Canadian courts could rely to impose liability on a person who negligently imperilled himself.

In C.N.R. vs. Bakty⁹³, the court held that the defendant's negligence created the need for his own rescue. The defendant negligently drove his car into the plaintiff's train. The plaintiff's employee, Carew, came to the rescue of the injured defendant; and as a result, suffered injury to his back. Had the plaintiff not come to the rescue, the defendant could have aggravated his existing injuries. The court held that the plaintiff should recover. Leach, Co. Ct. J. relied on the decision of Lord Denning in Videan vs. British Transport Commission⁹⁴ where he stated that "it seems to me that if a person by his own fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger . . . if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it."⁹⁵