THE DUTY TO RESCUE
Photo - Cristian Bernal
Should we all be Good Samaritans? The duty to rescue: a moral conundrum Is it ok to walk by someone dying on the street? The law says that where there is no pre-existing ‘duty’ it is; yet something seems terribly wrong with this image. Anita Juric explores the practicality, possibility and implications of generalised ‘duty to rescue’ law in Australia.
T
he disparate interplay of morality
legal duty to rescue is restricted to
Nonetheless, the ethical dilemma of a duty
and law attracts controversial
cases involving a special or fiduciary
to rescue in a social framework has arisen
discourse regarding the question of
relationship between the parties such
in numerous cases, in which it appears that
whether there can and should be a legal
as that of employer and employee. 3
heroism is morally and physically rewarded
duty to rescue. Many would assert that
The Australian courts are hesitant
while individuals who are driven by their own
there is surely a moral duty to render
to interpret the existence of a broad
self-interest in refusing to rescue others are
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assistance to others in need and there
duty to rescue among society and
ought to be a corresponding legal duty.
the legislature is equally reluctant
In one case, a Melbournian 16-year-old,
Yet the law establishes a different view.
to enact laws governing such a
Sam Porter, heroically saved the life of a
The current legal position
duty. This has largely stemmed from
young man who intentionally jumped onto
policy
considerations,
the train tracks after he was beaten and
by
distinction
Imagine a situation in which a medical practitioner is informed that
the
5
informed
between
denigrated.
acts
robbed by a third party. Porter’s courageous
an 11-year-old boy is suffering from
and omissions,
and the arguably
action sparked nationwide attention and
prolonged epileptic seizures a mere
impractical nature of extending the
the media was fast to dub him ‘Super Sam.’
300 metres away. Dismissively, the
scope of the legal duty to rescue.
He was rewarded with a Pride of Australia
practitioner refuses a request to attend
However, the absence of a duty
to the child. The practitioner’s inaction
to rescue is ethically problematic as
“Sam Porter may be the closest thing
leads the child to suffer permanent
it represents a dispassionate fissure
Melbourne has to a superhero,” The Herald
brain damage and quadriplegia.
of morality and law that enables
Sun stated. 8
Outstanding Bravery Award.
individuals to refuse to assist those
On the contrary, and in a case where praise
the case of Woods v Lowns, the
in imperilled situations. In addition, a
of valour was hard to find, Mark Inglis refused
principle judgment contributing to
pervading social fear exists whereby
to assist a man who was in a fatal condition
the development of the law of rescue
individuals are cautious and unwilling
when climbing Mount Everest. Interestingly,
in Australia. The case held that in those
to help others due to concerns of
Inglis himself had been previously rescued in
circumstances, the medical practitioner
potential litigation.
a similar incident.
This was the tragic reality in 1
was negligent for failing to render
In order to counteract these issues,
Inglis was strongly of the view that a duty
assistance to the child. However, had
Parliament has enforced legislation in
to rescue was not a moral or legal duty that
the circumstances been different and
respect to ‘Good Samaritans’, which
should be upheld, and even went to the extent
a distinctive relationship between the
operates to exclude personal civil
of acknowledging that his own rescuers were
parties had not been established, a
liability for those who righteously
under no obligation to help him, and should
duty to rescue would not have been
aid individuals in dire circumstances
have placed their lives above his own.
found.
using reasonable care and skill.6 This
“You should never, when you have
At common law, no general legal
is further supported by the ability
conscious thought, lose your life to save
requirement exists in civil or criminal
to recover damages on behalf of an
someone else’s,” he said. 9
law to assist others in danger.2 A
injured rescuer.7
In light of these stories, the question then
The Full Bench
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