The rescuer’s duty of care

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Royal Life Saving Society Quinquennial Commonwealth Conference

Bath, United Kingdom

26 September 2006
Chief Justice Terence Higgins*

Supreme Court of the Australian Capital Territory

Good afternoon ladies and gentleman.

Today I will discuss the rescuer’s duty of care, which will involve an analysis of the legal concept of duty of care and accompanying ideas such as the standard of care. I will also talk about the duty of care that is owed to a rescuer.

For our purposes today, the term ‘rescuers’ is potentially confusing as the law talks about rescuers more broadly than the one context of trained lifesavers, lifeguards or first aiders. Rescuers, as far as the law is concerned, are people who render assistance to a person in trouble and that may be in any number of circumstances. To add more complexity, Australian law distinguishes between rescuers volunteering for a community organisation and rescuers of the Good Samaritan variety. That leaves a third category, namely, that of ‘professional’ rescuers – persons engaged by certain organisations, to perform the role of rescuer.

The law of negligence imposes a duty on us all to take care so as to avoid injury, loss or damage to another. Lord Atkin of the House of Lords described this duty in the seminal case of Donoghue v Stevenson, and I quote:
You must take reasonable care to avoid acts or omissions which you can reasonable forsee would be likely to injure your neighbour.1

* I would like to acknowledge the research and drafting assistance provided by my Associate, Ms Anna


1 Donoghue v Stevenson [1932] AC 562 at 580.

With that knowledge, a common question arises, inquiring whether there is a duty to rescue. Does the passer-by who hears a call of distress emanating from a burning building have a legal duty to do what they can to render assistance or rescue those in trouble?


To quote Lord Nicholls of the House of Lords:

the bystander does not owe the drowning child or the heedless pedestrian a duty to take steps to save him. 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.2

Under the common law, there is no duty on the ordinary citizen to rescue another citizen.3 There may well be a moral duty or a social expectation to go to anothers aid, however there is no legal duty to rescue. The law ‘casts no duty upon a man to go to the aid of another who is in peril or distress, not caused by him.4

This last point indicates the first of two exceptions to the general rule; namely, there is a duty to rescue where the danger is created by the rescuer themselves.5 For example, a motorist whose car is broken down and unlit on a roadway, owes a duty of care to other motorists and should remove the hazard or warn of its presence.6
Secondly, a duty to rescue may arise from the relationship that exists between the rescuer and the endangered.7 That relationship is characterised by trust and responsibility and results in a duty to act in certain circumstances. Common examples


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