THE RESCUE PRINCIPLE
| DOI | http://doi.org/10.1111/j.1468-2230.1967.tb01136.x |
| Published date | 01 January 1967 |
| Date | 01 January 1967 |
| Author | J. Tiley |
THE RESCUE PRINCIPLE
"
HIS
trolley came silently and swiftly upon the unsuspecting
quietude of an English country station." The arrival of that
trolley at North Tawton railway station
on
July
26,
1959,
gave rise
to the case of
Videan
v.
British Transport Commission.2
Most of
the discussion of that case has been about occupier's liability but
there is much interest in the rescueclaim, particularly as there is
little judicial authority
on
the rights of a rescuer.= Most cases
have been concerned to show that neither
volenti non
fit
injurio
nor
novus actus interveniens
is a defence to a rescue claim. This
approach by emphasising the negative side-rescue is an exception
to two well-recognised defences-leads naturally to a reluctance to
extend the principle lest the exception should shake the rule.'
Since in rescue cases the courts have been asked to evaluate conduct
and have said little beyond that the rescue act must be reasonable,
and since the courts have not yet decided whether there is such a
thing as a rescue principle, the law is still in a formative stage.
It
is submitted that there is a rescue principle and that
it
is
capable of precise formulation. The principle is that where the
defendant has created a situation of peril for another, the victim,
the defendant will be held in law to have caused not only the peril
to the victim but also his rescue, and
so
to have caused any injury
suffered by the rescuer in his rescue attempt. The rescue principle
is a causation principle-as the courts have accepted by their
frequent consideration of
novus actus interveniens.
The rescuer
recovers despite his voluntary act. The principle as stated above is
too bald to be of much assistance in determining when a particular
rescuer will recover. Thus one must define the circumstances in
which the rescue act will be held to be within the principle. Who
is
a rescuer
?
Is
the doctor carrying out an operation
on
the victim
a
rescuer just as much as the person who throws himself
in
the path
of a train? Again, is a person whose act of rescue is the discharge
1
Lord Denning M.R. at
[1963]
2
Q.B.
650
at p.
669.
*
[1963]
2
Q.B.
650; [1963
2
W.L.R.
374; [1963]
2
All E.R.
860.
See
comments
79
L.Q.R.
586; 11963)
C.L.J.
194; 27
M.L.R.
88.
9
Articles
on
this subject include Goodhart.
5
C.L.J.
192,
the pioneering English
article; Baker
(1948)
Univ.
of
W. Aust. L.R.
37;
Brown
(1932) 10
Can.B.R.
556;
Dewitt,
32
Cornell
L.Q.
605;
Gow
(1948) 51
Jur.Rev.
37,
esp.
48-62,
and
(1950) 52
Jur.Rav.
317;
and
Anon.,
75
Irish
L.T.
113;
29
Co1.L.R.
53.
See recentlv Shalei.
29
M.L.R.
42.
4
e.g.,
the S;preme-Court
of
New Hampshire in
Glinea
V.
Maine
Central
Rail-
road,
52
A.
2d
298 (1947).
denying recovery when a peraon rescued goods
belonging
to
a third party and was
under
no
obligation
to
rescue them:
"
While the stability
of
the law does not require the continuance
of
recognised
emr,
it
does call for settlement of principle and consistency
of
ruling when
due consideration has been given and error is not clearly apparent."
25
26
TEE
MODERN
LAW
REVIEW
VOL.
m
of a legal duty to rescue able to take advantage of the principle?
What in law is
a
reasonable act
of
rescue? When is there
a
situation of peril? Finally, does
it
make any difference that the
person
in
peril is himself responsible
for
his
situation? Another
problem
is
to
fit
the rescuer's claim in with the notion of duty.
Does the rescue principle which talks in terms
of
causation have
any force in duty problems?
If
the defendant is liable to the
victim, does this mean that the defendant
is
also
liable to the
rescuer
?
If
not, then what must the rescuer
show
?
The fact that
a
person has rescued another gives
rise
to
a
number
of
legal problems. Thus, is it
a
defence to
an
action
for
assault? Can the rescuer recover for his injuries? Can the
rescuer get compensation
for
expense to which he has been put
in
the course of the rescue? Can the rescuer get a reward for what
he has done?
It
must be stressed that
it
is only the second
of
these problems with which we are concerned. The last two are
more the concern of the law relating to restitution, and are at the
moment governed by the dislike of English law for claims made for
services inflicted
on
the recipient without his having had the chance
to accept
or
reject them.
In
some cases it will not be easy
to
keep
apart the second question from the third, and
a
conflict of principle
is at least possible since, while the law has been reluctant to admit
claims in the third case,
it
has seemed most willing to admit claims
in the second.
The cases up to the present do not readily yield a principle but
they do give certain clues. Thus
a
rescuer must act reasonably.e
He must act in the reasonable belief that there is
a
situation of
peril.' When this is
so
the courts have rejected the defame of
volenti.8
A
rescuer may recover even though he is not imder
a
legal duty to the person in peril (hereafter
for
brevity's saks called
the vi~tim).~ The issue is not affected by the fact that the rescuer
6
The question is presumably the same
88
in
the criminal law.
On
the criminal
law
see
Glanville Williams
[1962]
Crim.L.R.
74, 164,
and Hughes.
$26
M.L.R.
233.
It
will
only
be
rn
rare
csses
that there will be
no
consent to
the rescue.
A
similar problem
is
whether there
is
a trespass
to
the land
on
which the rescue takes place.
0
Salmond (18th ed.), p.
64,
and Winiield (7th
ed.),
p.
36
and euthonties there
cited.
7
It
is irrelevant that there is in fact
no
peril
if
there is such an appearance
of peril that a re880nable man would believe there was a peril,
e.g., Highland
v.
Wilsonian
Inu.
Co.,
17
P.
ad
631 (1932).
No peril-Weller
v.
Chicago and
N.W.R.
Co..
66
N.W. 2d
720 (1962).
8
Ha neu
v.
Harwood
[1936] 1
K.B.
146;
Baker
v.
Hopkiw
[1969] 1
W.L.R.
966
9
Morgan
v.
iylen
19421 1
All
E.R.
489.
It
is frequently said that there
Honore,
Cawation
in
the
Law,
p.
139.
This
seems
doubtful.
It
is true that
+rutton
L.J.
does in
Cutler
v.
United Dai?ieu
[1933]
9
K.B.
997
at p.
304
expressly decide
e~
case
on
the ground that the plaintiff had
no
duty to
(Hart
and Honore,
op.
cit.,
p.
139,
n.
4)
yet Scrntton
L.J.
would
seem
to
be
Baying
that there was
no
legal
duty. The absence of
duty
is
not
the decisive point
in
Lord Mackay's judgment in
Mdcolm
V.
Dickaon,
1961
8.C.
642.
In
Macdonald
v.
Macbrayne,
1916
S.C.
716
Lord
must be a morel
c
uty
to
rescue
if
there
is
no
legal duty,
e.g.,
Rert
and
attempt the rescue
To continue reading
Request your trial