Liability of Search and Rescuers - Part 7

SARBC

Search and Rescue Society of British Columbia

With regard to the injuries sustained by the little girl, which in the situation outlined above were allegedly inflicted due to the gross negligence of the trained member of the Search Management team, it is likely that she will be able to recover from the rescuer from the rescuer as well as the babysitter whose negligence caused her to be in the perilous situation. However, the case of Joblin vs. Associated Dairies Ltd.¹⁷⁸ casts some doubt on the right of the young girl to recover. In Joblin¹⁷⁹ the plaintiff injured his back in 1973 in a fall at the premised where he was employed by the respondents. Later, in 1976, the plaintiff developed a condition known as cervical myelopathy which was wholly unrelated to the 1973 injury. The trial judge awarded the plaintiff general damages and special damages representing loss of earnings from the date of the accident in 1973 to the end of September, 1976.

The defendant appealed against the inclusion of these special damages in the award on the ground that the supervening incapacity of the appellant (plaintiff), attributable to the myelopathy, put an end to their legal liability for any loss of earnings which, but for the myelopathy, would have resulted from the plaintiff's accidental injury in 1973.

The Court of Appeal reduced the damages and the plaintiff appealed to the House of Lords. The House of Lords dismissed the appeal on the reasoning that "when a plaintiff injured by the defendant's tort is wholly incapacitated from earning by supervening illness or accidental injury, the law will no longer treat the tort as a continuing cause of any loss of earning capacity."¹⁸⁰

It is submitted that the girl could recover from the babysitter. However, if the babysitter could prove that the actions of the Search Management Team member constituted a supervening injury, the law may not treat her tort as continuing. It is my contention, however, that in this situation, the tort of the babysitter would be treated as a continuing cause; and that the court would apportion damages pursuant to the Negligence Act.¹⁸¹

The above situation may not hold if the babysitter is not present in the scenario. The degree of skill required of the rescuer is measured objectively, ie. that of the reasonable person in the circumstances. The case of Cleary vs. Hansen¹⁸² held that while the court does not expect perfection, the rescuer must be reasonable in his attempt. The common law recognizes a duty to act carefully when effecting a rescue even if under no positive duty to act.¹⁸³ The Ontario Court of Appeal in the case of Horsley vs. McLaren¹⁸⁴ held that "where a person gratuitously and without any duty to do so undertakes to confer a benefit upon or go the aid of another, he incurs no liability unless what he does worsens the condition of the other."¹⁸⁵ On appeal, the Supreme Court of Canada tacitly approved the standard of care applied by the Court of Appeal in finding that McLaren was not so negligent in his rescue attempt as to induce Horsley to risk his life by diving as he did. I submit, therefore, that the standard set forth in the Ontario Court of Appeal decision remains good law in Canada. In the present scenario, it is evident that the trained member of the Search Management team cannot bring himself within the protection of the Horsley¹⁸⁶ decision. Not only is it assumed that the Search Management team member receives remuneration for his efforts and, therefore, is not performing the rescue attempt 'gratuitously;' but, as a professional rescuer, he is under a positive duty to confer the benefit upon the rescued party. As well, since his actions left the four year old in an even worse condition, he is liable for her injuries and should be the one to compensate her.

There is no litigation concerning the Good Samaritan Act;¹⁸⁷ but, upon an initial reading, it would seem abundantly clear that a member of the Search Management team who receives remuneration for his activities would not be within the intended purview of the Statue.¹⁸⁸ The Act is designed to insulate the volunteer from the litigious wrath of the unfortunate victim; and it is unlikely to protect the professional rescuer.

The case of Hedley Byrne & Co. Ltd. vs. Heller & Partners Ltd.¹⁸⁹ stands for that

"a person who allows his judgement or skill to be relied upon without so qualifying his answer to show that he does not accept responsibility . . . accepts a legal duty to exercise such care as the circumstances require . . . and for a failure to exercise that care an action for negligence will lie if damages results."¹⁹⁰

Therefore, it follows that if the trained Search Management team member held himself out to be a professional rescuer, then he would be held to a higher standard of care than the volunteer rescuer.

It is reasonable to assume then that the young girl would have ample grounds to commence a civil action against the negligent trained rescuer.

If, in the scenario outlined above, the order of the rescuers was reversed so that it was the member of the Search Management team who came upon the young girl first; the applicable Canadian law would lead to slightly different results. While it is probable that the professional rescuer would be able to recover for the injuries incurred in attempting to rescue the young girl, it is unlikely that the untrained rescuer would be held liable for the injuries inflicted upon her.

With regard to the situation of the professional rescuer, as stated above, it is likely that he would be able to recover for the injuries he suffered. Unlike the American courts, the English and Canadian courts have held that the presence of a duty to rescue, such as that owed by the Search Management team member, rebuts the voluntary assumption of risk defence. It is probable, therefore, that he like the voluntary unremunerated rescuer, will be allowed to recover for injuries incurred. The case law that is authority for compensating the volunteer¹⁹¹ is equally applicable to the professional rescuer in Canada.

As indicated by the Search and Rescue Society of British Columbia, a rescuer is covered under Workers' Compensation benefits when they effect a rescue. The Workers Compensation Act¹⁹² Section 10 (2) states that "where the cause of injury, disablement or death of a worker is such that an action lies against some person, other than the employer . . . within the scope of this Part; the worker may claim compensation or may bring an action."¹⁹³ This section seems to indicate that where they choose to file a civil action the WCB is not subject to further claims by the injured worker. However, it should be noted that s. 10 (5) makes allowance for the situation where the rescuer recovers less than he would otherwise have been entitled to under the Workers Compensation Act¹⁹⁴ by providing that the Board will make up the difference between what he received and what would have been received under WCB. In light of this statue, it is surprising that there are not more claims brought for compensation by injured professional rescuers.

The trend in the American system has been to steer clear of duplicating damage awards; and therefore, overcompensating the rescuer. The belief is that, by allowing the professional injured rescuer to recover through the tort system he would then be compensated threefold:

1. through his remuneration;
2. through workers' compensation benefits;
3. and through the tort system.

It is open to the Canadian courts to address the concerns that the American courts have raised, and thus, develop their own professional rescuer doctrine. The direction the Canadian courts will go is, at present, mere speculation; but the law in Canada currently favours recovery for damages for a professional rescuer. It is safe to suggest that the courts will strive to maintain an equal balance between encouraging rescue attempts and overcompensating the professional rescuer.

The position of the four year old, with respect to the possibility of recovery for the injuries incurred while the untrained volunteer was attempting to effect her rescue will be examined. The common law in Canada requires the plaintiff to prove that the rescuer was foolhardy in his rescue attempt prior to allowing the rescued party to recover for injuries suffered at the hands of the Good Samaritan. Baker vs. T. E. Hopkins¹⁹⁵ is authority for the above proposition.¹⁹⁶ Further support for the principle that the volunteer rescuer should not be liable may be derived from the case of Smith vs. Horizon Aero Sports Ltd¹⁹⁷. The court held that the standard of care required of a voluntary organization shall be somewhat lower than that expected or organizations operating for commercial gain. It is stated in the Horizon Aero Sports¹⁹⁸ case that public policy considerations demand that a lower standard of care be required of voluntary organization so as to encourage them to continue to provide their valuable services.

There is also statutory authority in British Columbia to support the common law position. The Good Samaritan Act¹⁹⁹ offers protection to citizens who choose to act in an emergency situation.²⁰⁰ Pursuant to the Act, it is likely that the volunteer rescuer would not be held liable for the injuries suffered by the young girl, provided that he was not grossly negligent (which in the present scenario it appears was not the case). The rescuer is not excused if he is unreasonable in his attempt merely because he is a volunteer. The general position of the law is that the standard of care required for a volunteer is somewhat less than the standard required of the reasonable person. It is probable that the young girl would be unsuccessful if she chose to commence an action against the volunteer rescuer for the injuries she suffered.

The object of the law in the area of search and rescue has been to encourage and promote a more altruistic society. It is likely that the courts will continue their trend of reshaping and developing the law in this area so as to make it as just and equitable as possible. While it is true that the courts in the past have avoided combining law and morality, it would appear that, in today's ever increasingly interdependent society, such a combination is required. In order to achieve the desired result of a more altruistic society, the common law in the Anglo-American countries may well have to follow the lead of the Continental countries. As stated by Linden in his 1971 article, "Rescuers and Good Samaritans"²⁰¹

Everyone admires a rescuer and a good samaritan, but the denial of recovery to injured rescuers and the imposition of damages for inadvertent harm could hardly encourage altruism.²⁰²