Liability of Search and Rescuers - Part 5

SARBC

Search and Rescue Society of British Columbia

The case of Horsley vs. McLaren⁹⁶ is Canada's premier case in the area relating to search and rescue. This is the case of the boating expedition that ended in tragedy with the death of two of the passengers. The facts are as follows:
A passenger on a motorboat (Matthews) fell overboard through no fault of the operator. The operator of the boat (McLaren) attempted a rescue but without result, mainly because he had insisted on backing the boat up instead of following the recommended rescue procedure. After a short time, a second passenger (Horsley) dived into the water in his own attempt to effect a rescue of Matthews. Apparently, he died of shock as a result of the sudden immersion in the extremely cold water. The estates of the two deceased passengers commenced an action against the owner of the boat, McLaren.

The claim of Horsley's estate failed because a majority of the Supreme Court of Canada held that there was no negligence on the part of McLaren in attempting to rescue Matthews as he did and, therefore, there was no negligence that induced Horsley to attempt to effect a rescue by diving into the waters. In the absence of negligence on the part of McLaren, there could be no liability to the second passenger. Ritchie, J. held that there was a situation of peril created when Matthews fell overboard, but that it was not created on the part of McLaren. Before he would impose liability on McLaren for the death of Horsley, Ritchie. J. said "there must be a duty owning to Horsley stemming from the fact that a new situation of peril was created by McLaren's negligence which induced Horsley to act as he did."⁹⁷ Ritchie, J. did not find that this duty existed in the present situation. Hence, the decision in Horsley⁹⁸ reaffirms the position taken in the 1963 case of Videan vs. British Transport Commission.⁹⁹

The Court of Appeal in Ontario, had previously dismissed the claim of the second rescuer, Horsley, but on different grounds. In summary, Schroeder, J. proposed that so long as your efforts do not leave the person whose rescue you are attempting to effect in a worse position than when you took over, discontinuing your rescue will not lead to liability. Likewise, Jessup, J.A. reaffirmed the decision of the House of Lords case of East Suffolk River Catchmen Board vs. Kent¹⁰⁰ where it was held that, "where a person gratuitously and without any duty to do so undertakes to confer a benefit upon or go to the aid of another, he incurs no liability unless what he does worsens the condition of that other."¹⁰¹ While the Supreme Court of Canada did not discuss this aspect of the case, there is a sense in reading the judgment of Ritchie, J. that had McLaren's negligence been such as to place Matthews "in an apparent position of increased danger subsequent to and distinct from the danger to which he had been initially exposed by his accidental fall,¹⁰² Ritchie, J. would have allowed the second rescuer to recover.

While the decision in Horsley vs. McLaren,¹⁰³ the case law in Canada appeared to favour the rescuer. Ritchie, J. accepted the view of Laskin, J. who states in his dissent: encouragement by the common law of the rescue of persons in danger would . . . . go beyond reasonable bounds if it involved liability of one rescuer to a succeeding one where the former has not been guilty of any fault which could be said to have induced a second rescue attempt.¹⁰⁴

Although the trend has been to reward the rescuer, this is not to say that the rescuer is excused if he is unreasonable in his rescue attempt merely because he is a rescuer. In the case of Cleary vs. Hansen,¹⁰⁵ the plaintiff, who committed no driving error, was hit by Hansen. The plaintiff noticing that Hansen's passenger was injured went over to the car to help. He stood in the highway beside the Hansen car and failed to get out of the way with sufficient swiftness when another car hit him and crushed his legs. Here the court held that: Even during an attempt to assist someone in an emergency, the law expects reasonable care to be exercised, even though the standard is reduced to a certain extent. The court does not expect perfection, but rescuers must be sensible. They, like anyone else, must weigh the advantages and the risks of their conduct. Their conduct, too, however, laudable must measure up the standard of the reasonable person in similar circumstances.¹⁰⁶

However, because the plaintiff did not show sufficient care for his own safety, his claim for damages was necessarily reduced.

There now exists legislation that permits the courts to apportion responsibility for a foolhardy rescuer attempt, therefore, "there is no reason why a reduced award cannot be granted to the rescuer which would give him something for his heroism without ignoring the fact that he was less than careful."¹⁰⁷ The case of Cleary vs. Hansen¹⁰⁸ is an example of a situation where the rescue attempt although not performed up to the proper standard, was not utterly devoid of merit. As such, the court apportioned damages, reducing the rescuer's claim by an amount commensurate to his own negligence while still awarding him something for his concerted efforts.

Toy vs. Argenti¹⁰⁹ continued the above trend. In this case the plaintiff, a car-wash manager, attempted to stop a car belonging to the defendant which the defendant had left running and in gear. In attempting to stop the car, the plaintiff's left thigh was crushed. Esson, J. held that because the plaintiff's actions were extraordinarily risky in comparison to the trivial damage that could have reasonably been anticipated, the plaintiff is held to be contributorily negligent and his claim reduced by thirty percent. This case demonstrated that the courts are very willing to reward rescuers regardless of their contributory negligence. Rather than not allowing recovery, the court merely reduced the claim to account for the plaintiff's negligence.

The law in Canada relating to search and rescuers has been greatly influenced by the laws in England and the United States. An examination of the evolution of the laws in all three countries indicates that Canada has, at least up to the present, tended to follow the American lead and has awarded compensation to the rescuer. The courts felt confident and justified in extending the humanitarian doctrine of rescue because as Cecil A. Wright stated: "as between a careless man and the heroic rescuer, the policy of law favours shifting the loss from the latter to the former."¹¹⁰ It is questionable whether the above trend is likely to continue in Canada. For instance, the American professional rescuer doctrine has yet to be applied in Canada. To date, the Canadian courts have relied on British precedents. Therefore, it may be assumed that in cases involving professional rescuers, the courts will hold that the presence of a duty to rescue rebuts the voluntary assumption of risk defence as has been the case in England.¹¹¹

As noted above, historically there has been no affirmative duty in the Anglo- American countries to effect a rescue. There has been a general aversion to the placing of an affirmative duty on the citizenry. The approach taken has been that: there is no duty to go the aid of a stranger in distress even where there is, on the one hand, a perceivable real danger to the victim, and concurrently when the rendering of the aid would entail no danger or even inconvenience to the would be rescuer."¹¹²

The general reluctance to require rescue stems from: a framework comprising legal factors which make for a reluctance to punish for mere omissions. Ideological factors which make for a reluctance to coerce free individuals to perform positive acts, and philosophical factors which make for reluctance to use the law in order to further the prospects of moral behaviour.¹¹³

The law's early desire to "encourage and reflect a strong sense of independence and individualism" was also a significant factor.¹¹⁴

This reluctance to impose an affirmative duty is in stark contrast to the Continental countries of Europe. The Continental system not only recognized the duty to help but also the concurrent need to offer "judicial support for the rescuer in the form of compensation for harm suffered and immunity from claims for harm caused."¹¹⁵ An affirmative duty to rescue was first legislated in 1867 in the Netherlands. Since then, thirteen European countries have followed suit and have adopted a duty to rescue.¹¹⁶ The Continental countries have gone so far as to impose criminal sanctions, varying in severity, upon those citizens who fail to come to the aid of a fellow citizen in peril. In France, Article 63 of the Code Penal states: whoever is able to prevent by his immediate action, without risk to himself or others, the commission of a serious crime or offence against the person, and voluntarily neglects to do so shall be liable.¹¹⁷

The German Criminal Code, under Article 330, likewise states that: Anybody who does not tender aid in an accident . . . situation, although aid is needed and under the circumstances can be expected of him, especially if he would not subject himself thereby to any considerable danger . . . shall be punished by imprisonment not to exceed one year or a fine.¹¹⁸

These provisions clearly impose an affirmative duty on the citizens of France and Germany to come to the rescue of their fellow countrymen or risk criminal sanctions.

"Further, once the criminal sanction has been clearly laid down, it may give rise to a civil claim as well."¹¹⁹ However, it does not appear that German decisions exist which had "permitted this translation of criminal into civil liability."¹²¹ Consequently, the issue remains unsettled.

Quebec is the only province in Canada that has legislated an affirmative duty to rescue.¹²² Recent recommendations by the Law Reform Commission of Canada have urged that a formal affirmative duty to rescue be incorporated into the Criminal Code. However, these recommendations have yet to be implemented.

In order to determine what duties are imposed on the citizen, an examination of the existing common law duties shall be undertaken. In the case of Heaven vs. Pender,¹²³ it was generally accepted that: wherever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognize that if he did not take ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of such person, a duty arises to use ordinary care and skill to avoid such danger.¹²⁴

The decision in Heaven vs. Pender¹²⁵ has been highly scrutinized for it "seems to recognize indirectly the very duty to help which the courts had been so studiously avoiding."¹²⁶ While the court did not specifically impose an affirmative duty to rescue on the general populace, it did indicate that there were certain relationships which would give rise to a duty to rescue. One such relationship is found in the circumstance of the above case. Brett, M, R. imposed an affirmative duty to take care in the situation where one party knew that an article sold to the other party was dangerous by reason of some defect (although not dangerous in itself) and failed to warn that party.¹²⁷

The above decision was affirmed in the oft cited case of Donoghue vs. Stevenson¹²⁸ in which Lord Atkin tried to establish specifically to whom this duty of care was owed. Lord Atkin stated that "you must take reasonable care to avoid acts or omissions which you could reasonably foresee would be likely to injury your neighbour."¹²⁹ The issue now turned on the question: who in law is your neighbour? To this Lord Atkin responded, "someone who is so closely and directly affected by your action that you ought reasonable to have them in contemplation as being so affected when directing your mind to the act or omission in question.¹³⁰ So it was that in England, a duty to take reasonable care in relation to your "neighbour" was imposed.

The common law has imposed a duty to rescue in situations such as those that arose in Heaven vs. Pender.¹³² The common law further extended the duty to rescue and the subsequent liability to those situations where the rescuer, under no duty to do so undertakes to effect a rescue. While the case of H. R. Moch and Co. vs. Rensselaer Water Co.¹³³ was decided on different grounds, the court lent support to the above propositions. In this case, the defendant, a water works company, had made a contract with the city of Rensselaer to the supply of water. While this contract was in force, the plaintiff's building caught fire; and it and its contents were destroyed. The defendant, it is alleged omitted and neglected to supply and furnish enough water to extinguish the blaze. Although on the surface it might appear that the court should have awarded damages to the plaintiff, the court was willing to extend the duty of care owed by the promisor to the promisee under the contract to the "indefinite number of potential beneficiaries"¹³⁴ coming under the contract.

Further support for this proposition can be found in the American case of Zelenko vs. Gimbel Brothers.¹³⁵ Justice Lauer held that "if a defendant undertakes a task even if under no duty to undertake it, the defendant must not omit to do that which an ordinary man would do in performing the task."¹³⁶ The common law imposes a duty to rescue when the conduct has gone forward to such a point that discontinuing it would not only result in withholding a benefit but would actually inflict an injury.

The case of Horsley vs. McLaren¹³⁷ is one of the paramount cases in the area of rescuer liability in Canada. This case was brought to trial by the widows of the two deceased passengers. At trial, Matthews' family was denied recovery on the grounds that there was no evidence of casual relation between his death and McLaren's conduct. Horsley's family was, however, successful; and McLaren then appealed to the Court of Appeal. The Court of Appeal held that "where a person gratuitously and without any duty to do so undertakes to confer an benefit upon or go the aid of another, he incurs no liability unless what he does worsens the condition of the others."¹³⁸ It was proposed by Jessup, J. A.. that since in all likelihood, Horsely had perished upon hitting the icy waters, McLaren could incur no liability for Horseley's death because his rescue attempt did not worsen the condition of Horsley.

On appeal, the Supreme Court did not make reference to the above issued and decided the case on different grounds. Ritchie, J. in his judgment stated that for Horsely to be successful, it must be shown that the "situation of peril brought about by Matthews was so aggravated by the negligence of McLaren in attempting his rescue as to induce Horsley to risk his life by diving in after him."¹³⁹ It was held that the situation of peril was not created by any fault on the part of McLaren nor was McLaren's rescue attempt negligent. McLaren was "not under a duty to do more than take all reasonable steps which would have been likely to effect the rescue of a man who was alive and could take some action to assist himself."¹⁴⁰ Therefore, McLaren was not liable for Horsley's death, and the appeal was dismissed.

Jordan House Ltd. vs. Menow and Honsberger,¹⁴¹ a case decided two years later by the Supreme Court of Canada dealt with the issue of whether there is a duty imposed on the owners and management of a tavern to take reasonable care to safeguard patrons of the establishment from the likely risk of harm. Laskin, J. held that it was not unreasonable to impose a duty on the hotel to see that an intoxicated patron of their establishment got home safely.¹⁴² Certain facts, such as the fact that the hotel was aware of Menow's propensity to drink, as well as their past experience in dealing with intoxicated persons, contributed to the finding of a duty.

The law in Canada has tended to expand the situations in which a positive duty of care if required. It appears that there is a growing group of special relationships which import an obligation to engage in positive conduct for the benefit of another. Normally, there is some element of control or some economic benefit inuring to the person as a result of the relation, which justifies the creation of the duty.¹⁴³

The Menow¹⁴⁴ case specifically fits into the situation described above.

The more recent case of Crocker vs. Sundance Northwest Resorts Ltd.,¹⁴⁵ a 1988 Supreme Court of Canada decision continues the above trend. The issue to be decided was whether the ski resort had a positive duty at law to take certain steps to prevent a visibly intoxicated person from competing in the resort's dangerous tubing competition. The trial judge, Fitzpatrick, J., held that the ski resort was under a duty to warn or alternatively to rescue the patrons of the resort from injury that could result. At the Supreme Court of Canada, Wilson, J., in her decision followed the decision of Dubin, J. in the Court of Appeal and stated that the relationship between Crocker and Sundance gave rise to a duty to take all reasonable measures to prevent the plaintiff from continuing to participate in a very dangerous activity which was under its full control and supervision and promoted by it for commercial gain . . . that one is under a duty not to place another person in a position where it is foreseeable that the person could suffer injury.¹⁴⁶