Tort liability for a failure to render assistance in a comparative perspective
| Author | Witold Borysiak |
| DOI | http://doi.org/10.1177/1023263X231154151 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Articles |
Tort liability for a failure to
render assistance in a
comparative perspective
Witold Borysiak
*
Abstract
The article looks at the problem of tort liability for a failure to render assistance and compares the
legal approaches to this issue. There are no European legal systems that regulate such a duty to
render assistance directly in the provisions of private law. This is generally because most of them
(with the exception of common law countries) have criminal law provisions that penalize a failure
to rescue another person in need of assistance. This raises the question of the impact of criminal
law on liability in private law. The paper discusses this issue in detail, accepting the opinion that, in
those legal systems where a failure to render assistance is punishable as a criminal offence, the
provisions of criminal law should determine the conditions and prerequisites for rendering assist-
ance in private law and establish the boundaries of liability in tort law. In addition, the article aims
to present universal guidelines that might be useful for courts in order to establish tort liability in
other cases of a failure to render assistance.
Keywords
Comparative law, tort law, duty of care, wrongfulness, affirmative duties in tort, liability for
omissions, duty to render assistance
1. Introduction
The comparative literature has often considered the issue of the tortious liability of a person who did
not assist another person in life- or health-threatening conditions. It is a controversial topic largely in
terms of whether there is any obligation to act to protect another person from damage, and in terms
of the scope of that obligation. Commentators are also divided on the potential premises of such a
*
Assistant professor at the Faculty of Law and Administration, University of Warsaw, Warsaw, Poland
Corresponding author:
Witold Borysiak, Faculty of Law and Administration, University of Warsaw, Krakowskie Przedmies
́cie 26/28, 00-927
Warsaw, Poland.
Email: w.borysiak@wpia.uw.edu.pl
Article
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(6) 648–666
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X231154151
maastrichtjournal.sagepub.com
duty. Moreover, they often consider that issue against the background of the biblical parable of the
priest, the Levite and the Good Samaritan.
1
The question is whether a person who does not attempt to rescue others can be held respon-
sibleforthedamagethatthoseotherssuffer,evenifthepersondidnotcreatetheriskofthe
damage occurring. There are questions about when a witness to a dangerous situation can be
passive, and when they are under an obligation to render assistance (and if so, to what extent
and with what consequences). For example, in the comparative literature, some authors have
considered the dilemma of whether a bystander who does not warn a blind person walking
along the street about an open and unsecured drain is liable in tort for the damage that
occurs;
2
whetherabusinessmanhurryingtoameetingwhoseesapersondrowningina
pond, but fails to save them despite being a good swimmer, could be responsible in tort;
3
or
even the possible liability of a resident of a mountain village who does not correct a tourist’s
mistake, even though he knows that the tourist is inexperienced and has unknowingly chosen
a dangerous and steep trail to the summit that is closed due to the danger of avalanches.
4
The answers to such questions differ significantly between the various legal orders.
5
The main
question is whether private law (and tort law in particular) should regulate an obligation to render
assistance (and, if so, to what extent). In the comparative literature, there are also views that this
issue should generally remain the subject of morality rather than law, with a moral sanction
rather than a private law one being appropriate in this respect.
6
The examples of such moral sanc-
tions could be social stigmatization, social boycott, being ostracized, etc.
2. Liability for omissions –general grounds
All the situations described above relate to liability for omissions. A person who fails to render
assistance does not act actively, but rather fails to undertake a specific behaviour to avert the
danger from a person at risk. This applies equally to cases where the given person is entirely
passive and situations where, after taking some preliminary steps to render assistance, the person
gives up and does not continue their efforts. Despite the principle of ex nihilo nihil fit, commonly
accepted in philosophy, there is no doubt in the field of civil liability that a causal relationship is
1. For example, H. Koziol, ‘Liability for Omissions –Basic Questions’,2Journal of European Tort Law (2011), p. 127,
describing this issue, begins his article by quoting this parable from the Gospel of St. Luke (Luke 10: 25–37). As
H. Koziol humorously notes, the parable’s origin was a question asked by a ‘scholar in law’(ibid., p. 128). A similar
introduction to this issue is adopted by L.N. Klar, Tort Law (3rd edition, Thomson Carswell, 2003), p. 172.
2. See case 10 in H. Koziol (ed.), Unification of Tort Law: Wrongfulness (Kluwer Law International, 1998), p. 7.
3. C. van Dam, European Tort Law (2nd edition, Oxford University Press, 2013), p. 524.
4. See a similar example provided by P. Widmer, ‘Comments to Art. 4:103. Duty to Protect Others from Damage’,in
Principles of European Tort Law: Text and Commentary (Springer, 2005), p. 89. A more extended example is provided
by the same author in another of his publications –see P. Widmer, ‘Ex nihilo responsabilitas fit, or the Miracles of Legal
Metaphysics’,2Journal of European Tort Law (2011), p. 150.
5. See the national reports on this issue in H. Koziol (ed.), Unification of Tort Law, p. 22, 38, 52–53, 62–63, 68, 80, 99, 112
and 125, which H. Koziol, Basic Questions of Tort Law from a Germanic Perspective (Jan Sramek Verlag, 2012), p. 192,
describes as ‘surprising’.
6. T.M. Benditt, ‘Liability for failing to rescue’,1Law and Philosophy (1982), p. 409–413; A. Kubas, ‘Wynagrodzenie
szkody poniesionej w cudzym interesie’,30Studia Cywilistyczne (1979), p. 48–49, K. Spielbüchler, ‘Dankt der
Gesetzgeber ab? Gegen das Abschieben der Enscheidung’, 128 Juristische Blätter (2006), p. 353–354. See also
E. Quill, ‘Affirmative Duties of Care in the Common Law’,2Journal of European Tort Law (2011), p. 165–169.
Borysiak 649
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