Please note: This article does not constitute legal advice. It is provided solely for educational purposes. Readers must obtain independent legal advice with respect to any civil and/or criminal liability concerning the withholding of aid and rescue.
If you see someone who is seriously injured on the street, do you have the duty to aid or to seek rescue, for example, by calling 911?
While most people feel strongly that they must do what they can to help an injured person, the common law suggests otherwise.
According to the trial judge of a modern case, later affirmed by the Supreme Court of Canada, “the law is clear that there is no general duty to come to the rescue of another person … the law leaves the remedy to a person’s conscience.”
When the case was appealed to the Court of Appeal, Jessup J.A. boldly stated “despite the moral outrage of the text writer, it appears presently the law that one can, with immunity, smoke a cigarette on the beach while one’s neighbour drowns and without a word of warning, watch a child or blind person walk into certain danger.”*
This is indeed quite outrageous. In many civil law countries, particularly in Europe, it is often an offence to withhold aid when it is needed.
At the same time, this common law rule of “no duty to rescue” is not absolute. Professor Klar, a prominent tort law professor, suggested five main categories in which the duty to assist is imposed:
- relationship of economic benefits
- relationship of control or supervision
- creators of dangerous situations
- reliance relationships
- statutory duties
While the above exceptions are seemingly quite limited in our day-to-day living, the application of the exceptions is actually broader than one may anticipate.
For example, under the relationship of economic benefits, there may exist a duty for the barkeep to prevent customers from driving home while intoxicated.
Under the Ontario Highway Traffic Act and the Criminal Code, there are also statutory duties imposed on drivers who are involved in an accident to render all possible assistance and remain at the scene of accident . Other statutory duties may be applicable to certain professionals, such as physicians and nurses.
*Horsley et al. v. MacLaren et al. “The Ogopogo” [1969] 2 O.R. 137, revd [1970] 2 O.R. 487, (C.A.); affd, [1972] S.C.R. 411
