Duty to Rescue in UK Law

It seems to me that, if a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is not wanton interference, if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it.

There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties (like Mrs Wise) or natural causes.

If such a duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed. If the policy of the act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care.

In the long run the question is, as Lord Reid said in the Dorset Yacht Company case one of remoteness of damage, to be answered as has so often been stated, not by the logic of philosophers but by the common sense of plain men: compare the very recent decision of this court in Compania Financiers "Soleada" S.A. v. Hamoor Tanker Corporation Inc.

The argument was rejected by the House of Lords for reasons given by Lord Hope (paras 81–82), Lord Phillips (paras 98–99) and most fully by Lord Brown (paras 136–139). Lord Brown did not consider that the possibility of a Human Rights Act claim was a good reason for creating a parallel common law claim, still less for creating a wider duty of care.

Tofaris and Steel in their article, Police Liability in negligence for failure to prevent crime: Time to Re-think, (Legal Studies Research Paper Series 39/2014, July 2014) define what they describe as the "omissions principle" in the following way: A is not under a duty to take care to prevent harm occurring to B through a source of danger not created by A unless either (i) A has assumed a responsibility to protect B from that danger, (ii) A has a special level of control over that source of the danger, or (iii) A's status creates an obligation to protect B from that danger.

The operation of the principle arises where the claimant's claim is founded upon his own criminal or immoral act. The facts which give rise to the claim must be inextricably linked with the criminal activity. It is not sufficient if the criminal activity merely gives occasion for tortious conduct of the Defendant.