THE LEGAL RIGHTS AND RESPONSIBILITIES OF RESCUERS John Handmer, Centre for Resource and Environmental Studies, Australian National University, and Juliet Behrens, Faculty of Law, Australian National University, Canberra. A car is travelling in heavy rain. Ahead is a road block erected by the local police to prevent traffic from attempting to cross a flooded river. The car's driver is determined to continue his journey and manages to get around the road block. The car almost makes it to the other side before it starts to float and turn over. A child passenger and the driver scramble out. The driver is swept into a tree. The child is taken downstream where she manages to cling perilously to a rocky outcrop. Both are in danger of being swept away. A policewoman, supervising the scene witnesses the incident, as does a bystander who has stopped at the roadblock. This fictional but believable situation raises a number of questions about the legal rights and responsibilities of rescuers; those who go to the aid of persons or property in danger of injury or damage. Is the police officer under a legal duty to attempt a rescue? Is the bystander under such a duty? If either makes a rescue attempt and is injured in the process, can that person sue the driver of the car? What other rights of compensation might the rescuer have? If the rescuer drowned, can his/her relatives claim compensation? If the child or adult is injured or killed in a rescue attempt can they or their relatives claim compensation from the rescuer or any other source? What other legal rights does the rescuer have - for example, concerning counselling, job-relocation and retraining? What rights does the rescuer have with regard to media reporting of the event? "Folk wisdom" in Australia and America would suggest that when we go to the aid of another we do so completely voluntarily, with little prospect of compensation if we are injured. On the other hand, it is also conventional wisdom that by assisting a stranger we risk being sued: so the best course of action appears to be to do nothing. This view of the law appears to have persisted despite the clear and unambiguous message in the biblical parable of the good Samaritan: that assisting those in trouble is the right thing to do. How can this be reconciled with the conventional wisdom outlined above? What of the many people whose work involves the rescue of others? These include: firefighters, ambulance and emergency service personnel, members of the police force, and rangers. Such people often take extraordinary risks in attempts to save members of the public. To what extent is the conventional wisdom true? THE LEGAL DUTY OF RESCUE The parable of the Good Samaritan suggests that there is a moral duty to rescue, at least in cases where this can be done without exposing oneself to unreasonable risk. The extent of that moral duty would vary according to the capability of the rescuer, the degree of inconvenience and danger involved in a rescue attempt and what was at stake; we would expect greater risks to be taken to preserve life than to protect property, for instance. Returning to our example, the policewoman who is trained in rescue should attempt to rescue the child who was placed in a life threatening situation through no fault of her own. We might also think it reasonable for an elderly bystander to be content with assisting the policewoman. On the other hand, if the bystander happened to be a fit and health lifesaver, one would suggest that he had amoral duty to intervene actively. The question is, however, whether any legal duties to rescue exist. In general the Australian legal system, in keeping with other common law jurisdictions, does not require strangers to assist each other. Thus the bystander who stopped his car and saw the driver and child in need of assistance is under no legal duty to intervene - in law he is entitled to act as the priest and Levite of the parable of the Good Samaritan and to "pass by on the other side". However, many countries with legal systems based on the European civil code, for example, consider it a criminal offence to ignore those needing assistance or rescue. The priest and the Levite could have faced five years jail if they had been in France instead of Palestine. The law of the Canadian province of Quebec is based on the civil code, and also imposes a duty to render assistance. The intense individualism of the common law approach to rescue has given way in some areas where a duty to assist has been imposed. Five jurisdictions within the United States (Vermont, Massachusetts, Minnesota, Rhode Island and Pennsylvania), have statutes which impose a duty to rescue. The duty is broadest in Minnesota and Vermont where there is an obligation to provide reasonable assistance to persons exposed to grave physical harm, where this can be done without danger to the rescuer. Despite the general position under Australian and British common law - that there is no duty to rescue a stranger - duties can arise because of the particular relationship between those involved. In our example, the driver of the car who had created the situation of peril for the child may well be under a legal duty to do all that is reasonable to rescue that child. Another example is provided by a schoolteacher supervising a playground who would have a duty to take reasonable steps to assist pupils in peril. In addition, there are limited statutory duties to rescue imposed on people in particular occupations. For example, where two ships collide there is a duty on the person in charge of a ship to render assistance to the other ship, its master, crew and passengers (Commonwealth Navigation Act 1912). There are statutory provisions imposing duties on members of the police force to protect life and property (for example NSW Police Regulation Act 1899). A medical practitioner refusing to attend an accident and provide medical assistance could be guilty of misconduct under a professional code of practice. LEGAL ACTION AGAINST THE RESCUER Those suing rescuers are unlikely to be treated sympathetically by the courts. Fears that those who intervene may be sued appear to be strongly felt, but are not justified. It is true that once action to intervene is taken, the rescuer owes a duty to take reasonable care. However, anyone attempting to sue a rescuer would have to overcome a number of legal barriers. Not the least of these would be that the rescuer was acting in the "heat of the moment" with the most admirable motives; and his or her conduct must be judged in that light. Apart from this, a person being rescued who has created the situation of peril for themselves (such as the driver in our example), must face the argument that they substantially caused their own injury. In any case there are very few reported cases of such litigation. As a result, a recent Canadian review suggests that legislative immunities for rescuers are unnecessary in that country (Schwartz, 1987). In the United States, however, it is recognised that the fear of legal action can affect an individual's decision about whether to intervene. Most of the United States is now covered by "good samaritan" legislation, which provides immunity from lawsuits for those, particularly medical practitioners, who assist accident victims. These provisions are paralleled in Australia where the legislation governing most emergency services provides some protection for individuals from claims arising from activities undertaken as part of their work. So for example, New South Wales police officers who act in good faith in the performance of their statutory duty to protect life and property are not liable for any resulting injury or damage (Police Regulation Act 1899). In some states legal protection is extended to include bystanders who assist emergency service personnel. LEGAL ACTION BY RESCUERS Until the last few decades the conventional wisdom about compensation mentioned above reflected the law. Courts denied compensation to rescuers who sued on the grounds of negligence by another party, (for example the negligence of the person being rescued). Courts argued that rescuers assumed the risk voluntarily and that they caused their own injuries by intervening. This attitude has gradually changed and in a 1963 British case Lord Justice Denning stated that "whoever comes to the rescue, the law should see that he does not suffer for it." (Videan v BTC 1963). As a matter of policy, courts have since decided to use the law to encourage rescuers by rewarding them if they are injured. This has extended to compensation for mental suffering after helping with rescue operations following a train wreck in Britain (Chadwick v BTC 1967). The person sued could be a party who, through his or her own negligence, required rescue, such as the driver in our example. Alternatively, it could be a party who created a dangerous situation which meant that another person had to be rescued. So, in our example, if the person attempting to rescue the child was injured, that person may well have an action against the driver who negligently created the situation. Australian cases are few. However, in the 1961 case of Chapman v Hearse, the High Court was faced with the question of whether a rescued person owed a duty to those conducting the rescue. In this case, Chapman was injured in a motor vehicle accident because of his own negligence. Dr Cherry stopped to assist Chapman and was killed when struck by a vehicle driven by Hearse. The doctor's family successfully sued Hearse under fatal accidents legislation. Hearse was able to claim a portion of these damages from Chapman because the court said that if Cherry had sued Chapman he would have won. In this case, the High Court found that rescuers can recover damages from those they assist. In a more recent Canadian case, concerning the yacht Ogopogo, Mr Justice Laskin attempted to refine this principle. He observed that "...a person who imperils himself by his carelessness may be as fully liable to a rescuer as a third person would be who imperils another." (Horsley v MacLaren 1972). There are many other familiar situations where a legal cause of action may arise. This would include cases where people attempt bushwalking expeditions in the face of severe weather conditions. A rescuer injured during the rescue of such a person may well have a common law claim against the bushwalker. An action would be based on the careless conduct of the bushwalker leading to a foreseeable rescue attempt with the chance of injury. The rescuer would have to act reasonably in the circumstances - and that may include reasonable action in a life or death situation - and must be bale to show that his or her injuries were substantially caused by the bushwalker's negligence. subject to these caveats, the chance of successful litigation would be high. STATUTORY COMPENSATION FOR RESCUERS We are not suggesting that common law actions by rescuers represent a panacea for meeting their needs. Contested common law actions in some jurisdictions now take up to four years from date of filing to judgement, and injuries have to stabilise before writs can be issued. Damages may be reduced because of contributory negligence. A damages award may be a meaningless bit of paper if the person sued does not have the resources to meet the claim. Note that in our example, the rescuer would have been able to take advantage of the car's third party insurance. A common law action does not help where the rescuer has been killed, although claims for compensation may be made by dependants of the deceased under fatal accidents legislation. In fact, many rescuers would be able to obtain some form of statutory compensation for injuries from sources outside the common law system. An important source is workers compensation, which extends to compensation for dependants on the employee's death. Some emergency services legislation extends workers compensation rights to bystanders who become involved in rescue attempts. In Victoria and Western Australia, for example, there are Police Assistance Compensation Acts. A rescuer injured assisting the victim of a crime would have limited entitlements under criminal compensation legislation in each state and territory. In Victoria, Tasmania and the Northern Territory there are statutory schemes of compensation for those injured in motor vehicle accidents, including those who assist people injured in the accident. Such schemes entitle the claimant to limited damages irrespective of the fault of any person, including the claimant. We have all heard of the prohibitive "costs of justice". These statutory schemes enable some of these costs to be avoided. Payments of compensation are made relatively quickly and there is no need to establish a common law claim against any individual. However, the compensation is often much less than a victim might expect from a common law claim. MEETING THE NEEDS OF RESCUERS The needs of rescuers often extend well beyond monetary compensation. They may include post-event debriefing and counselling, assistance in dealing with the media, and in some cases job relocation and retraining. These last measures may be desirable where the stress of the rescue (or the accumulated stress of a number of incidents) makes continuation in the same occupation inadvisable. There is increasing recognition for these needs to be addressed as a matter of occupational health and safety. Employers have a clear duty to provide adequate counselling to their staff, and where an employee suffers injury as a result of failure to provide adequate post-traumatic care, those responsible could be legally liable. REQUEST FOR ASSISTANCE We have set out to raise some of the issues being explored as part of a research project concerning rescuers and the law. The project is being carried out by the Centre for Resource and Environmental Studies and the Faculty of Law, Australian National University. To pose some more questions: what are people's perceptions about their legal rights and responsibilities where rescues are concerned; how do these perceptions affect their conduct; does the legal situation need clarification; should the duty to render assistance be imposed in more situations than at present; is there a need for more widespread immunities from liability for rescuers; what barriers stand in the way of rescuers seeking compensation through common law; to what extent are the other needs of rescuers being met? We hope to go beyond legislation and legal cases, and are keen to hear from people who may have had some practical experience with these and other issues concerning rescues. REFERENCE Schwartz, 1987 The legal position of the good samaritan. Ottawa: Emergency Preparedness Canada. CASES CITED Chadwick v BTC (British Transport Commission) (1967) 2 All E.R. 945 (K.B.D.) Chapman v Hearse (1961) 106 C.L.R. 112 Horsely v MacLaren (1972) (The Ogopogo case) 22 D.L.R. (3rd) 545, at p 558 (S.C.C.) Videan v BTC (British Transport Commission) (1963) 2 All E.R. 860 (C.A.)