Liability of Search and Rescuers - Part 6

SARBC

Search and Rescue Society of British Columbia

In the Sundance¹⁴⁷ case, because the defendants failed to take sufficient steps to discharge that duty, they were held to be liable for their breach of duty towards the plaintiff. A special relationship is created by the presence of some economic benefit flowing from one person to the other which justifies the imposition of the duty of care. There are still gaps in the system that presently are not accounted for. For instance, there is no duty owed by the person who stands by and allows the blind man to walk into rush hour traffic.

Once it has been established that there is a duty to rescue, the standard of care of the reasonable man in the same or similar circumstances is applied to determine if the rescuer has breached his duty towards the rescued party. Authority for this position can be found in the 1986 American case of Fowler vs. State Farm.¹⁴⁸ Here a guest who was injured when he jumped down from the balcony of a home, after he and the homeowner were locked out, brought suit against the homeowner and their insurance company. The court concluded that the legal cause of the plaintiff's injuries were not caused by the homeowner's conduct, and as such did not apply the rescue doctrine. However, the court did suggest that "an individual who places himself in danger as the result of an emergency is not held to the same degree of care normally required of an ordinary prudent person."¹⁴⁹ The law still demands that the rescue attempt be reasonable, but the standard of care required is somewhat less than the standard required of the reasonable person.

An interesting development in the area of law relating to the standard of care required of a voluntary organization may be seen in the Smith vs. Horizon Aero Sports Ltd.¹⁵⁰ In this case, the plaintiff became a paraplegic when as a consequence of a mishap on her first parachute jump, she broke her back. The plaintiff alleged that she had not been adequately taught the techniques for controlling the direction of her parachute. The plaintiff brought an action against the parachute jumping school, Horizon Aero Sports, and the Canadian Sport Parachuting Association (C.S.P.A.). The action against the C.S.P.A. was dismissed. In his reasons for dismissal, Esson, J. stated that the "standard of care of the C.S.P.A. with respect to the teaching methods and personnel used in this case must be judged in light of the fact that they were a voluntary organization."¹⁵¹ This case reiterated the necessity of taking into consideration the status of the rescuer in determining standard of care.

Public policy considerations dictate the imposition of a lower standard of care on a voluntary organization as opposed to a government or commercial agency.

It is in the interest of society that voluntary efforts directed towards promoting excellence and safety in any field of endeavour be encouraged. If the standard expected from a non-profit organization is put too high, such organization may depart the field.¹⁵²

The decision of the court in Horizon Aero Sports¹⁵³ suggests that it would be unreasonable to expect the C.S.P.A. to ensure that the standards of training and supervision set by it were being implemented by the member schools. The court was influenced by the C.S.P.A.'s procedures in investigating reported deficiencies in the safety practices of its members.

While there is no legislation in British Columbia that imposes a duty to rescue, there is a Good Samaritan Act¹⁵⁴ which affords some protection to those citizens who do choose to act in any emergency. This Act provides that there shall be no liability for emergency and unless there is gross negligence.

Section 1 states:

A person who renders emergency medical services or aid to an ill, injured or unconscious person at the immediate scene of an accident or emergency that has caused the illness, injury or unconsciousness is not liable for damages for injury to or death of that person caused by his act or omission in rendering the medical services or aid unless he is grossly negligent.¹⁵⁵

The exceptions to this general rule are found in section 2:

Section 1 does not apply where the person rendering the medical services or aid

a) is employed expressly for that purpose; or

b) does so with a view to gain.¹⁵⁶

As noted above, so long as the rescuer acts with the standard of care of the reasonable person in the circumstances they should fall within the ambit of section 1 of the Good Samaritan Act¹⁵⁷ and be protected from any actions that may arise.

A duty imposed by law may be a duty arising by virtue of either common law or statute.¹⁵⁸ At present in Canada, section 2 of the Quebec Charter of Human Rights and Freedoms¹⁵⁹ is the only statute that imposes a positive duty to rescue outside the ambit of special relationships outlined in the Criminal Code.

Section 2 reads: Every human being whose life is in peril has a right to assistance. Every person must come to the aid of anyone whose life is in peril either personally or calling for aid, by giving him the necessary and immediate physical assistance . . . unless it involves danger to himself or a third person, or he has another valid reason.¹⁶⁰

The Quebec statute is somewhat less rigid than the European codes. The presence of the 'other valid reason' provision tends to make the Canadian provision less imperative. Nonetheless, the statute does exist; and there are indications that the future revised Criminal Code will contain similar provisions.

At present, the Canadian Criminal Code imposes a general duty on anyone undertaking an act to perform it if its omission would endanger life.¹⁶¹ Furthermore, section 216 imposes a duty on persons undertaking acts dangerous to life.¹⁶²

The Law Reform Commission has recommended that Canada take a much firmer stance with regard to requiring rescue. Pursuant to recommendation 10(2) of Report 31, a liability would be imposed on "everyone who perceiving another person in immediate danger of death or serious harm, does not take reasonable steps to assist him."¹⁶³ The clause is not imperative, however, and allows for an exception.

Section 10(2)(a) does not apply where the person cannot take reasonable steps to assist without risk or death or serious harm to himself or another person or where he has some other valid reason for not doing so.¹⁶⁴

These clauses build on the principle enunciated in section 2 of the Quebec Charter of Human Rights and Freedoms¹⁶⁵ and try to bring the law in Canada more in line with the laws in the European countries. If Canada continues its trend in expanding the duty of care that one citizen owes to another, it is likely that the proposals of the Law Reform Commission will be incorporated into the new Criminal Code; and a law imposing a positive duty to rescue will be forthcoming.

On any given day, the Search and Rescue Society of British Columbia (SARBC) can be called upon to assist in the search for persons missing in the wilderness. Not surprisingly, with the recent increases in the number of personal injury cases coming before the courts, the SARBC is concerned about the liability in a rescue attempt. What if the rescuer is injured: What if they injure the party whom they are trying to rescue? Outlined below is a situation that addresses several of the legal issues relating to search and rescue liability.

A four year old girl and her eighteen year old babysitter were wandering through the woods. The eighteen year old was brought along on the outing by the four year old's parents to keep an eye on their daughter. When the two did not return to the camp site, the parents began looking for them. Two hours later they called in the police.

The police made the initial call to the local search and rescue group. They called about 30 people (12 trained and 18 untrained). The local group went through their normal procedure of searching without result. At the end of the second day, an untrained volunteer found the four year old girl. In attempting to rescue the youngster, the volunteer is himself injured. The eighteen year old was not there as she had gone off in search of help.

The next day, with the eighteen year old, the four year old and now the untrained volunteer all missing, the local group requests more resources. Three other search and rescue groups from adjacent areas, one search management team, three dogs and handlers and three hundred and fifty searchers are called in.

Late in the day, a trained member of the search management team located the four year old and the untrained rescuer, both injured at the bottom of the ravine. In his efforts to rescue the two, he was grossly negligent and caused the young girl to incur further injuries.

On day four, the eighteen year old is found alive and well. It has been determined that she needlessly risked the safety of herself and the four year old by straying off the marked nature trails.

Issues

1. Whether the untrained volunteer is entitled to compensation for the injuries sustained in attempting to effect the rescue of the four year old?

2. Whether the four year old who incurred further injury due to the gross negligence of the trained search management member will be entitled to compensation?

   Reverse the Order of the Rescuers

3. Whether the trained search management member who is injured in attempting the rescue of the four year old is entitled to recover for his injuries?

4. Whether the four year old girl can recover for injuries suffered when the volunteer rescuer attempted the rescue? (He was not grossly negligent).

The untrained volunteer would likely to be entitled to compensation for the injuries he sustained in attempting to rescue the four year old girl. The common law supports this conclusion, and there are no statutory provisions that restrict the application of the common law. The fact that he voluntarily assumed the risk inherent in the rescue of the youngster had no bearing on his claim since the case of Seymour vs. Winnipeg Electric Railway Co.¹⁶⁶ disallowed the application of the voluntary assumption of risk defence in relation to rescue cases in Canada.¹⁶⁷ Further support for the untrained volunteer can be found the in the Alberta case of Haigh vs. G.T.P.R.¹⁶⁸ where it was held that an intervener is entitled to recover for the injuries sustained in his rescue attempt unless his intervention was unnecessary, rash or reckless under the circumstances.¹⁶⁹

In the present scenario, it was found that the 18 year old babysitter's negligence caused the harm suffered by the four year old. At one time, the courts in Canada followed the position taken in the case of Dupuis vs. New Regina Trading Co.¹⁷⁰ where it was held that the good samaritan quality of the rescue doctrine did not extend to allow a rescuer to recover for injuries suffered in rescuing a person who imperilled himself. The decision in this case required that there be a duty owed by the defendant to the rescued party as a prerequisite to recovery. However, since 1958 with the decision in Baker vs. T. E. Hopkins¹⁷¹, the courts in the United Kingdom and Canada have rejected the derivative approach and no longer require there to be a duty owed by the defendant to the rescued party in order for the rescuer to recover. The right of the rescuer to recover is an independent right not derived from that of the rescued party.¹⁷² The person who imperils himself may be as fully liable to the rescuer as would be a third person who imperils another.¹⁷³ Therefore, regardless of whether the babysitter was present in the scenario or not, the volunteer should still be able to recover damages for his injuries. In this situation, it is probable that the 18 year old would be liable to the untrained volunteer for the injuries he sustained based on the reasoning that she ought to have foreseen that her negligent act of straying off the marked nature trails would cause somebody (a rescuer) to take the risk of attempting a rescue.¹⁷⁴ This conclusion is, however, premised on the understanding that there was a real or perceived danger; and that the rescue attempt was reasonable in the circum-stances.¹⁷⁵ If the rescuer was reasonable in his rescue attempt, he should be awarded full compensation. The case of Cleary vs. Hansen¹⁷⁶ is authority for the proposition that the courts will reduce a reward to a rescuer by an amount commensurate to his degree of negligence. If he was contributorily negligent, then there is legislation¹⁷⁷ that apportions responsibility; and the rescuer is rewarded accordingly.