Law of Torts Assignment draft
This paper shall examine the current position of the Rescuer under Irish law, and critically examine how this position has developed under common law and statutes. This development can draw many of its origins from the 2009 Law Reform Commission consultation paper which essentially outlined a framework for the drafting of legislation. Furthermore analysing case law and statue from our jurisdiction and abroad, which was applied in the only real substantive case in Ireland to date, O’Neill v Dunnes Stores Ltd To determine the position of the rescuer in Ireland several factors were considered by the LRC such as the moral versus legal question of a duty to intervene, how intervention affects society and with an increasing level of litigation in modern Ireland, how the courts should view subsequent cases for and against Good Samaritans and Voluntary organisations.
LRC Consultation Paper
The recognition and protection of persons providing voluntary assistance has been addressed by the LRC Consultation Paper on Civil Liability of Good Samaritans and Volunteers, which proposes the introduction of a statute restricting the liability of such persons who intervene as rescuers. The recommendations in the paper essentially aimed to clarify the confusing position of rescuers in Ireland through the implementation of statute. Section 5.01 of the recommendations states “The Commission recommends that there should be no reform of the law to impose a duty on citizens in general” Historically, common law countries have hesitated to a positive duty to intervene, McMahon and Binchy note that common law has been completely opposed to the imposition of affirmative duties, in particular a positive duty to intervene. The Commission reflect this arguing that a positive duty to intervene would have an adverse effect on society, with legal implications people may shy away from rescue attempts and they believe that intervention should come from moral not legal obligation. However it could be challenged that although there is a strong case for the commissions reasoning, there are valid arguments for a positive duty to intervene. It could be debated many citizens would intervene due to their obedience to the law being law abiding citizens, others out of fear of breaking these same laws, positive duty may also encourage those who either out of shyness or lack of moral obligation suddenly feel motivated to intervene. The Commission is relying on morality for intervention but it can be argued that the law itself has a high influence on shaping morality, therefore would only serve to heighten the moral obligation to intervene. "Legal and moral rules are in symbiotic relation; one learns' what is moral by observing what other people…tend to enforce." Section 5.10 recommends that the “proposed legislation should introduce a gross negligence threshold in respect of the activities undertaken by individual Good Samaritans and volunteers.” Stating the test for gross negligence should apply the normative standards of negligence. Furthermore the negligence caused the injury at issue and was of a very high degree, also there was a high degree of risk and the individual was capable of appreciating this risk or meeting the required standards of care. In this regard the Commission seems to accurately convey its opinion on the test for the standard of care which must be adhered to. However recommendation A “The individual was, by ordinary standards, negligent” may bring some confusion to the courts. Rescue situations generally are those in which split second decisions are made, applying ordinary standards such as those outlined by the Supreme Court in Glencar Exploration v Mayo County Council arguably could be successfully contested in court. What is fair just and reasonable or reasonably foreseeable arguably may not apply in rescue situations involving gross negligence. It may be common knowledge to follow some protocols...
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