The Duty of Bystanders to Rescue
TPL 2 Research Assignment
Introduction
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:
Introduction
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:
Bibliography: 1. Articles/Books/Reports Bentham, Jeremy, Introduction to Principles of Morals and Legislation (3rd ed, 1988) 135. Coonan, Helen, ‘Insurance Premiums and Law Reform – Affordable Cover and the Role of Government ' (2002) 25 The University of New South Wales Law Journal 5. Honoré, Antony, Law, Morals and Rescue (2nd ed, 1988) 240. Hunt, Lester, ‘An argument against a legal duty to rescue ' (1995) 25 Journal of Social Philosophy 15. Lacy, Andrew, A Duty to Rescue? (2004) The Bark Network < http://www.bark.net.au/Society/socart2.htm> at 18 August 2005. Marx, Karl, Das Kapital (New ed, 1999) 588. Schmidtz, David ‘Islands in a sea of obligation: limits to the duty of rescue ' (Working Paper No 18, Independent Institute, 2000). 2. Case Law Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1. Hargrave v Goldman (1963) 110 CLR 40. Jaensch v Coffey (1984) 155 CLR 549. McFall v. Shimp, 10 Pa.D. & C. 3d 90 (1978). Pyrenees Shire Council v Day (1998) 192 CLR 330. Salmon v Chute (1994) 115 FLR 176. Sullivan v Moody (2001) 183 ALR 404. Sutherland Shire Council v Heyman 1985) 157 CLR 424.