Proximity Negligence and the Principle of Rescuer's Liability
Physical injury
The meaning of the term ‘proximity’ differs according to who is using the term, when it is being used and the type of injury that has been suffered. As far as physical injury is concerned, the courts will readily hold the parties to be proximate and for this type of injury proximity really equates to foreseeability. In examination questions where the problem revolves around physical injury, it is unlikely that the examiner is requiring detailed consideration of the tests required for a duty of care but the problem will revolve around some other facet of negligence.
However, the House of Lords has held in Marc Rich & Co AG vs Bishop Rock Marine Co Ltd (1995) that, even in cases of physical damage, the court had to consider not only foreseeability and proximity, but also whether it was fair, just and reasonable to impose a duty.
The third requirement of ‘fair, just and reasonableness’ was lacking in Mulcahy vs Ministry of Defense (1996). The plaintiff was a soldier serving with the British army in the Gulf War. He was injured and his hearing was affected when his gun commander negligently ordered a gun to be fired. Two of the components of a duty of care – foreseeability and proximity – were found to be present. However, taking into account the circumstances including the position and role of the alleged tortfeasor and relevant policy considerations, it was not fair, just and reasonable to impose a duty.
An unusual case of negligence causing physical injury is Revill vs Newbery (1995).
The plaintiff, who was a trespasser and was engaged in criminal activities, was attempting to break into a brick shed on the defendant’s allotment. The defendant poked a shotgun through a small hole in the door and fired, injuring the plaintiff. The defendant was found to be negligent and had surpassed the level of violence justified in self-defence. The plaintiff, however, was found to be two-thirds contributory negligent.
In the Marc Rich case, Lord Steyn drew a distinction between ‘directly inflicted physical loss’ and ‘indirectly inflicted physical loss’. He said that the law would more readily impose liability for the former than the latter. The defendants unsuccessfully attempted to rely on this distinction in Perrett vs Collins (1998). One of the defendants had inspected a light aircraft and certified that it was airworthy. The other defendant was the certifying authority. They were held to owe a duty of care to the claimant who was a passenger in a test flight. The Court of Appeal said that the distinction was more relevant to economic loss and was not germane to physical injury. The test would be functional in novel categories and did not apply to established categories of liability for personal injury.
Rescuers.
Rescuers as plaintiff.
The law does not oblige a person to undertake a rescue, unless they are in a special relationship, but the courts are favorably disposed to someone who does attempt a rescue and is injured in the process. Like physical injury the courts require very little more than foreseeability before they hold the parties proximate.
The courts have held that where the defendant has negligently created a situation of danger, it is foreseeable that someone will attempt a rescue and it will not be possible for the defendant to argue that the rescuer is volenti non fit injuria or constitutes a novus actus interveniens (Haynes vs Harwood (1935)); Baker vs TE Hopkins and Son Ltd (1958)).
As far as rescuers are concerned, the courts are quick to regard someone as being foreseeable and impose few conditions in declaring the parties proximate. However, there must be a real threat of danger (Cutler vs United Dairies (London) Ltd (1983)). The plaintiff attempted a rescue when no one was in a situation of danger and was consequently not owed a duty.
However, even if the victim was not in real danger, the defendant will owe a duty if the rescuer’s perception of danger was a reasonable one (Ould vs ButlerÕ s Wharf Ltd (1953)).
The duty owed to a rescuer is independent from that owed to the accident victim. The defendant may, therefore, owe a duty to the rescuer where none is owed to the accident victim (Videan vs British Transport Commission (1963)).
If someone negligently imperils himself or his property, it is foreseeable that there may be an attempt at a rescue and a duty of care will arise on the part of the accident victim. This includes a duty of care to a professional rescuer, such as a fireman (Ogwo vs Taylor (1987)).
Professional rescuers were also the subject of Frost vs Chief Constable of South Yorkshire (1996). The case arose out of the Hillsborough disaster.
The plaintiffs were police officers, four of whom were at the ground at the time of the tragedy, but their roles differed. Three of the four were found to be rescuers. A fifth officer who was not on duty at the ground but reported to a hospital later in the afternoon and helped in mortuary duties was not found to be a rescuer and her claim was dismissed. All five officers had suffered post-traumatic stress disorder and claimed in nervous shock. The claims of civilian relatives of victims for nervous shock damages had been dismissed in Alcock vs Chief Constable of South Yorkshire (1992). Despite the fact that both cases arose out of the same incident, the four officers who were present at the ground succeeded in frost. The three officers who were classed as rescuers were owed a duty in two capacities: in their first capacity as rescuers and in their second capacity as employees of the defendant. The fourth officer present at the ground was owed a duty as he was the defendant’s employee.
In Duncan vs British Coal Corporation (1997), the plaintiff was 275 metres from a colleague when he was crushed to death. He was contacted over the telephone and arrived at the scene where the accident occurred, within four minutes and administered first aid. He was held not to be a rescuer.
Rescuers as defendant
Although rescuers are quickly held to be owed a duty, there are situations where a rescuer himself can owe a duty to the accident victim. For example, where the rescuer by his conduct in commencing a rescue deters or prevents others from attempting a rescue, on the principle of ‘detrimental reliance’ (Zelenko vs Gimbel Bros (1935)). There is Canadian authority for saying that where a rescuer worsens the condition of the accident victim, then the rescuer becomes liable to the accident victim (Horsley vs MacLaren (1970)). There is no duty at large to help someone in need of urgent assistance. However, when an ambulance service accepts a 999 call, a duty will be owed if the patient is identified by name and address (Kent vs Griffiths (No 3) (2000)). Unlike other public services, only the patient’s welfare is at issue and there is no conflict of priorities in imposing a duty as there is with the police force; consequently, foreseeability and proximity are made out.
Apolice officer is under a duty to go to the assistance of a colleague who is under attack (Costello vs Chief Constable of Northumbria (1998)).
Contributory negligence and rescuers
The courts are reluctant to hold rescuers contributorily negligent, for example, Harrison vs British Railways Board (1981) but, if a rescuer has been contributorily negligent, damages will be reduced accordingly (Sayers vs Harlow UDC (1958)).
Omissions
The law makes a distinction between misfeasance and nonfeasance.
There is liability for the former but not for the latter. In other words, there is no liability for omissions. A can watch B drown in an inch of water and incur no legal liability, unless Astands in a special relationship to B. However, if you start off a chain of events and then omit to do something, for example, begin driving a car and then omit to brake, with the result that you knock someone down, then there will be liability.
Tags : Torts and Negligence Law