You may know about the Biblical parable of a man attacked and beaten by robbers during a long journey. He lay by the side of the road, dying. Two people passed him by, without stopping or offering help, while only the third, an enemy of his people, helped him up and took care of him until he recovered.
What would the legal implications of this story be today?
More specifically, is it a crime to walk by when a person is in a life-endangering situation?
And what happens if a good Samaritan, in their efforts to offer assistance, accidently causes further injuries?
Duty to rescue
Under the common law in Australia, there has never been a positive duty to rescue another person.
In fact, the general position has hardly changed since 1883 when lawyer, judge and writer Sir James Fitzjames Stephen wrote that:
“A number of people who stand around a shallow pool in which a child is drowning and let it drown… are no doubt shameful cowards, but they can hardly be said to have killed the child.”
In NSW, a person who allows a child to drown in shallow water while they stand by is not liable to criminal charges. They have no legal obligation to save the child, unless they a parent, care-giver or have some other relationship with gave them a duty of care to act.
There has been a reluctance throughout our legal history to enforce positive duties to act in a range of situation – the general theory being that as long as you do not directly inflict harm, you should be allowed to act as you please.
The duty to rescue has been seen as oppressive and impractical, which is why it has been rejected by most Australian and UK jurisprudence.
This means there will only be limited circumstances where a person can be liable – and this will be due to some pre-existing connection such as:
- If you caused the danger or injury;
- If the injury or dangerous situation occurred on your property;
- If you have a duty of care because your position in relation to the person in danger, eg you are their doctor, teacher, employer etc; or
- If you created a duty of care through your actions at the time the person was in danger.
But when it comes to complete strangers, the law has traditionally placed few obligations.
The situation in Europe
On the other side of the globe, most European countries have firmly entrenched the ‘duty to rescue’. This means that failing to help someone can be a criminal offence. Although this is recognised as an intrusion into personal liberty, it is justified on the basis that the temporary loss of freedom is outweighed by the interest in protecting other people.
While the law varies from country to country, it generally does not apply where a person would need to put themselves in grave danger by attempting a rescue – for example jumping into a dangerous current to save a drowning swimmer. It generally only applies to the situation where a rescue would not pose a significant risk.
The Northern Territory:
Failing to help a person in danger has now been made a crime in the Northern Territory.
Clause 155 of the NT Criminal Code Act now imposes a general duty to rescue, stating that any person who is able to provide rescue, resuscitation, medical treatment, first aid or succour of any kind to a person who is urgently in need of it and whose life may be endangered but “callously fails to act” is committing an offence.
The maximum penalty is seven years imprisonment – which has been described by one judge as the heaviest punishment for an equivalent offence in the world.
Could the good Samaritan ever face penalties?
Imagine risking your life to save someone else – only for them to turn around and sue you. This was what happened when one American woman, Lisa Torti, pulled her one-time friend from a car after it crashed into a lamp-post. Torti said she believed the car was going to burst into flames when she saw smoke rising from the wreck.
Unfortunately, due to her being “yanked” from the car, Alexandra Van Horn, the occupant of the car, became a paraplegic. She sued Torti for her injuries.
Legislation at the time only provided limited protection to good Samaritans and the California Supreme Court ruled that Van Horn was allowed to sue Torti for allegedly causing the paralysis. The court found that legislation only protected emergency workers – not others who took rescue action. Torti was understandably devastated.
The incident raises the question: do we want legislation that encourages people to help in an emergency, or to hesitate and wonder about whether they could get sued?
Civil liability in NSW
Section 57 to the Civil Liability Act in NSW protects good Samaritans against civil liability for attempting a rescue. Under the section, a good Samaritan is someone who acts in an emergency to assist a person who is apparently injured or at risk of being injured.
In order to rely on this protection, a good Samaritan must be:
(a) Unimpaired by voluntary intoxication, including medication; and
(b) Exercising reasonable due care and skill.
The protection does not apply if you were the person responsible for the injury in the first place.
I represented a client in a well-publicised case some years ago who was charged with manslaughter after he allegedly failed to assist an elderly lady to get help for an injury.
The facts of the case were that my client, aged in his 40s, and the elderly lady, a retired nurse, were friends for some years. My client would visit her every few days for companionship and to assist with day-to-day duties.
When he arrived at the house just before Christmas, he heard her shouting in pain. He jumped through the window and found her on the floor. He carried her to the bed and offered to call an ambulance, but she insisted on remaining at home as she did not want to spend Christmas in hospital. She took pain medication and, after spending some hours with her, my client left.
The lady was found deceased the next day, allegedly as a result of her injuries. My client was charged with manslaughter on the basis that his actions in assisting her to the bed and remaining with her raised a duty of care, and that his failure to call for medical help constituted criminal negligence.
I applied for bail in Parramatta Local Court the next morning and he was released from custody. After I drafted and submitted a very lengthy document (over 80 pages) detailing the state of the law, the prosecution case and the deficiencies of that case when applied to the law, the prosecution withdrew all proceedings against my client.
Although he was greatly relieved to not have to face a jury trial, the fact remains that he would never have been charged if he failed to assist her in the first place.
To help or not to help?
It would indeed be a sad state of affairs for people to stand by and let others get injured or die for fear of attracting civil or criminal liability.
But such is the current state of the law in NSW – and there are certainly situations where a person can become criminally responsible for another’s injury or death where their actions make it apparent that they have assumed responsibility for the other person, and they then fail to take appropriate steps to protect them from harm.