Traditionally the law of torts in Australia and many other common law countries (e.g. England, Canada) have been reluctant to impose upon bystanders a general duty to aid the proverbial baby drowning in a puddle of water,' though there have been several exceptions to the general rule which the courts have distinguished, usually where some sort of prior relationship exists between the parties. Protagonists of a duty to rescue' tend to base their arguments around the idea that contemporary morality demands the law impose some sort of co-ercive measure upon those who chance by others in dire straits, drawing comparisons with areas where law reflects morality, as well as examples of jurisdictions where legislation introducing a positive duty to rescue have been enforced. Antagonists to the idea of an affirmative duty to act to the benefit of others tend to stress the importance of individual liberties within democratic societies on the one hand, and highlight the problems present in setting criteria for when a duty should exist in the other. As Australian tort law attempts to adhere to the principle of restitutio and prevent the emergence of a culture of blame' simultaneously, the result is that there is not likely to be a single correct' answer, however this essay will attempt to justify the imposition of a limited duty in a manner which considers both sides of the argument.
Proximity & Foreseeability
The first hurdle that must be crossed is reasonable foreseeability, which according to the High Court in Sullivan is necessary but not sufficient,' however in most cases concerning rescue foreseeability is generally not an issue. To date, Australian tort law has predominantly approached the issue of a duty to render assistance by focusing on the degree of proximity between two parties. The fact that both are human beings cannot be sufficient cause for duty, as Lord Nicholls said in Stovin: Something more is required than being a bystander. There must be some additional reason why it is fair and reasonable that one person should be regarded as his brother's keeper and have legal obligations in that regard.'
Beyond physical proximity, common factors considered by the courts to determine whether the required level of proximity existed include reasonable foreseeability of injury, prior relationship between parties, special positions occupied by defendants, and whether the defendant owned the premises related to the peril. Though the law in general does not impose a duty, the above cases represented circumstances under which the courts felt proximity and capacity demanded a duty to be owed.
Morality & Democracy
Fundamental to the affirmative argument is contemporary morality, what today's society believes to be fair, just and reasonable' expectations of citizens. Central to this argument is the notion of right and wrong. One might simply argue that it is right' to rescue another if there is minimal inconvenience to oneself. Simple though this may sound, it unwittingly reflects the cost-benefit principle, which says that state coercion of citizens is lawful if the benefits society receives from it outweigh the costs of deprivation of individuals' liberties. Indeed this view is backed by utilitarians such as Bentham, whose philosophy strives to obtain the greatest happiness for the greatest number,' strengthening the obligation to rescue in proportion as the danger is greater for the one, and the trouble of preserving him the less for the other.' Yes, rescuers will be inconvenienced to some degree or another, but contemporary morality demands they make a small sacrifice for the benefit of all. There are however criticisms of this approach to morality, most notably the invasion upon individuals' liberties in a democratic society. Critics argue that the notion of a positive duty to act for another's benefit goes against the general principle...