SARBC

Victoria, BC
Canada

It is not in every case that someone other than the rescued part is necessarily responsible for the imperilled situation of the rescued part. There are situations where the rescued part carelessly or negligently endangers himself. The ability of a rescuer to recover had been dependent upon the existence of an independent third part, who endangered the rescued part. Rescuers were at one time denied recovery where the part in danger had created his own difficulties. This anomaly in the law was corrected in England with the case of Baker vs. T. E. Hopkins Ltd.²⁸ in 1958. It was held that: Although no one owes a duty to anyone else to preserve his own safety; yet if, by his own carelessness, a man puts himself into a position of peril of a kind that invites rescue, he would in law be liable for any injury caused to someone whom he ought to have foreseen would attempt to come to his aid.²⁹

In this case, a doctor in attempting to rescue two workmen who had gone down a well and were overcome by fumes, died of carbon monoxide poisoning. The defendant argued that the duty of their client to their employees did not extend to the doctor (rescuer). Barry, J. held that "the company not only owed a duty to their employees but also a duty to the rescuer as a person who went to the rescue of the two employees who had been imperilled by the company's negligence.³⁰ The court did not find that Dr. Baker acted voluntarily so as to accept all the consequences of the defendant's negligence nor did they find that he acted in a foolhardy or unreasonable manner. Hence, a person who endangered himself would be liable to the rescuer for any injuries the rescuer suffered. Moreover, the onus of proving the rescue attempted was foolhardy is now placed on the rescue party.

The case of Videan vs. British Transport Commission,³¹ a decision of the Court of Appeal in 1963, is further evidence of the trend in English jurisprudence to provide the rescuer with compensation and to encourage altruism. In this case, a railway station master was killed while attempting to rescue his infant son who was on the railway line. Here the infant son was held to be trespasser. His wife then sued for damages on behalf of her husband. The problem that the court grappled with was one of foreseeability. The defendant claimed that because there was no liability towards the rescued party there could be no liability towards the rescuer. The reasoning behind defence counsel's contention is that if you not foresee the presence of a trespasser, how could you possibly foresee the presence of anyone attempting to rescue the unforeseeable trespasser? However, Denning, M. R. encouraged the courts to continue to promote the concept of the rescuer and stated "that whoever comes to the rescue, the law should see that he does not suffer for it.³²

The right of the rescuer is an independent right and is not derived from that of the victim. . . suffice it that he ought reasonably to foresee that, if he did not take care, some emergency or other might arise, and that someone or other might be impelled to expose himself to danger in order to effect a rescue.³³

It has been proposed that the foreseeability requirement is really little more than a facade behind which the courts can hide to shroud the policy considerations present in each case. This is clear when one considers that the element of foreseeability if almost always lacking in the rescue cases. For example, "a reasonable man would not and could not be aware before the event that he was, by his conduct, endangering the rescuer as well as the rescued part of himself for that matter.³⁴ Although Denning, M. R. more or less nullified the foreseeability problem, it has been suggested that: liability is imposed as the result of judicial policy. The courts when they believe that the intervention of a new force is not so extraordinary as to make it unjust to hold the wrongdoer liable, constantly justify their decisions by speaking of the intervention as foreseeable.³⁵

The law has been remoulded to allow rescuers to recover for injuries incurred. It has evolved from the strict principle of voluntary assumption of risk to a more liberal doctrine of foreseeability. The English courts were influenced by, but did not follow, the American lead in denying recovery in the case or professional rescuers. In England the duty to rescue, has gone to rebut the voluntary assumption of risk defence. An examination of the American jurisprudence will illustrate the areas in which their decisions influenced the British and Canadian law.

The American legal system recognized the right of the rescuer to recover. As early as 1871, in the case of Eckert vs. Long Island Railroad Co.,³⁶ the American courts acknowledged that the voluntary assumption of risk defence should not be applicable to the "rescue" cases. Nonetheless, it was still available to be applied in those cases where the rescuer was obviously reckless or unreasonable in his rescue attempt. In the Eckert³⁷ case, a child had got upon the defendant's railroad track; and its life was endangered by a negligent approaching train. Eckert went on the track to save the child and was killed. The Eckert³⁸ case usually cited as authority for the proposition that: the doctrine of voluntary assumption of risk does not apply where the plaintiff has under an exigency caused by the defendant's wrongful misconduct consciously and deliberately faced a risk... to rescue another from imminent danger. . .whether the person is one to whom he owed a duty of protection or not.³⁹

The Eckert case, however, is just one among many U.S. cases that have upheld this proposition. It is settled law in the United States that with regard to the rescue cases, the rescuer cannot be deemed to have voluntarily assumed the risk associated with the rescue.

The American cases have extended the doctrine of the rescue cases to cover instances where the plaintiff voluntarily exposed himself to a risk. This proposition was upheld in the case of Liming vs. Illinois Central Railway⁴⁰ in 1890. In this case, the defendant railway company negligently set fire to some grass. The plaintiff voluntarily went to a barn to save his neighbour's horses and was subsequently caught by the fire and burned. It was held that although the plaintiff was "under no legal obligation to protect the property, his attempt to do so was lawful. Under the circumstances, it was the natural and probable result of the wrong of the defendant."⁴¹ The American courts did not ponder over the causation issue like the English courts.⁴² The problem the English courts faced differentiating between those rescue cases where the rescuer acted voluntarily rather than instinctively never seemed to be an areas of contention in the United States. The American courts were far more willing to treat both situations equally and to consider all reasonable rescue attempts to be outside the ambit of the voluntary assumption of risk defence.

The American courts also came to grips with the foreseeability issued much more quickly than the British. It was the enlightened and famous judgement by Justice Cardozo in Wagner vs. International Railway Co.⁴³ which provided the rationale for allowing rescuers to recover even in cases where it could be argued that they were unforeseeable. In this case, a passenger was thrown from a train. The plaintiff in an attempt to rescue the passenger walked back along the train tracks to the point at which he thought his cousin would be. In attempting to effect the rescue, the plaintiff was injured. Justice Cardozo's judgement clearly and succinctly summarizes the issue of foreseeability as it relates to the law of rescuers.

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim. It is a wrong also to her rescuer. The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.⁴⁴

Consequently, the problems associated with foreseeability of the injured rescuer were given less importance. No longer was recovery dependent upon the rescue attempt being foreseeable. This is not to say that a reasonable belief in a real or perceived danger coupled with a reasonable rescue attempt in the circumstances was not required. On the contrary, they are the fundamental prerequisites to commencing an action. Provided that these requirements were met, however; the American courts were inclined to allow the rescuer to recover.