Social ConteXt of the Law: The Duty to Rescue

Professor James Goudkamp: I’m pleased to introduce our speakers for this evening. Andrew Warnock, King’s Counsel, practises from Deka Chambers. He has been a barrister for 30 years. He has appeared before the Supreme Court in numerous high-profile cases. These cases include, relevantly for the topic of this evening’s lecture, Tindall v Chief Constable of Thames Valley Police, which concerned whether police officers were obliged to assist motorists.

Our other speaker is Amelie Berz. She’s a doctoral student at Worcester College at the University of Oxford, where she is writing a thesis concerned with tort law and artificial intelligence. Amelie has the significant advantage of training and experience in two legal traditions, having completed a law degree at Heidelberg University. She is therefore particularly well-positioned to complement Master Warnock’s presentation.

Andrew Warnock KC: I’m speaking about the common-law position in relation to the duty to rescue. In general, common law does not impose a duty of care on one person to help another. Common law distinguishes between causing harm – for which there is liability – and failing to protect from harm – for which there is no liability. This is often referred to as the ‘omissions principle’. Common law does not generally require people to confer benefits on others. An extreme example of the omissions rule is that if you see someone about to walk off the edge of a cliff, oblivious to that fact, you do not owe a duty to shout a warning.

There are exceptions where a defendant may be liable for failing to protect another person, even where the defendant did not create the danger. For example, assumption of responsibility. If you assumed a responsibility to protect the cliff walker from the danger of walking off the edge, you will owe a duty to shout a warning. Another exception is if you do something which prevents another from protecting the cliff walker from the danger. A third exception is if you have special control over the source of danger. The Supreme Court has commented that there’s no clear authority for the application of a control exception beyond cases of parental or quasi-parental responsibility. Fourthly, there may be situations where a defendant’s status creates an obligation to protect another person from a danger. For instance, if you are a parent or in loco parentis of the person about to step off the cliff, then you will owe a duty to shout a warning to them.

The omissions principle also applies to statutory rescue organisations. Under the common law principle of equality, all persons, private and public, are treated equally before the law.

These principles were considered recently by the Supreme Court in the Tindall and Thames Valley Police case. The police had been called to rescue a motorist who had had an accident on an icy road in the middle of the night. They did so, but they left without making the road safe or leaving any warning for later drivers. About 20 minutes later, a fatal head-on collision happened on the same patch of ice. Both drivers were killed, and the widow of one of the drivers (Mr Tindall), sued the police. In this case, the police had not created the source of danger. The ice was already there. The police had not done anything to expose others to an unreasonable or reasonably foreseeable risk of harm. So, it was a case squarely within the ‘omissions principle’, where the starting point is no liability.

The assumption of responsibility exception did not apply, because the police had not undertaken to make the road safe, and nor could later motorists using the road have relied on them doing so. The control exception did not apply, because the police had not taken control of the ice. The status exception did not apply, because private and public individuals are treated equally.

What proved to be the most contentious issue was whether the police had interfered in a rescue or the possibility of the road being made safe by someone else. Mr Kendall, who had the first accident, had got out of his vehicle and tried to flag down traffic to warn them of the ice. He said that had the police not turned up, he would have continued to do so, and he was confident his efforts would have been successful. Instead, because the police did turn up, he assumed that they would make the road safe, and so he went off in an ambulance. He didn’t inform the police of his thoughts, nor of his intended plans had they not attended. The argument was that the police had made matters worse or interfered with a rescue attempt, and so should owe a duty of care.

The Supreme Court held that there is such a thing as the ‘interference principle’, which is a specific example of making things worse: If A knows, or ought to know, that B is in need of help to avoid some harm, and A knows or ought to know that he has done something to put off or prevent someone else helping B, then A will owe B a duty to take reasonable steps to give B the help she needs. The principle did not avail Mr Tindall’s widow, however, because the police did not know about Mr Kendall’s plans, and hence could not have known that they were putting him off protecting future motorists on the road. So, the claim failed.

What underpins the common law’s approach to omissions and the duty to rescue? Lord Hoffmann identified a number of policies which underpin the ‘omissions principle’. Firstly, imposing a duty to rescue or protect involves an invasion of freedom of the person that’s said to owe the duty. Secondly, a duty to prevent harm or rescue others may apply to a large and indeterminate number of people. The common law asks why should one be held liable rather than another? By contrast, if you carry out an activity, then it’s right you should pay compensation for any damage that it causes.

In relation to the rest of us, there’s perhaps another reason which underpins it, which is that perhaps not every aspect of life needs to be subject to law and compulsion. Perhaps there should be room for moral choices. If you do not leave space for cowardice, then you have no room for heroism either.

Amelia Berz: I was asked to say a few words about comparative law, particularly about European approaches to the duty to rescue. Across much of continental Europe, there does exist a duty to rescue. Section 323c of the German Criminal Code makes it a criminal offence to fail to render assistance in an emergency, where help is both necessary and reasonably possible. The requirements are straightforward. First, there must be an emergency. This means a sudden event creating a real risk of serious harm to life, health or bodily integrity. Secondly, assistance must be necessary and capable of being given. Thirdly, the assistance must be reasonable for the particular person to provide. The law does not require heroic acts. A non-swimmer is not expected to jump into deep water. But if you see someone walking towards the end of a cliff, and it only takes you shouting “stop”, then yes, you do have to do that. In practice, the duty is often satisfied simply by calling emergency services.
German law, like English law, becomes much stricter where the person creates or controls the danger. In that situation, a duty as a guarantor arises and so-called ‘result-based crimes’ such as bodily injury or homicide can be committed through omission where someone either has responsibility for a source of danger or is responsible to protect a vulnerable person. The classic example is homicide by omission in cases where a parent starves their child. Section 323c contains a second paragraph, making it an offence to obstruct someone who is trying to render assistance.

Paragraph Two is sometimes called the ‘rubbernecking provision’, which is one way of saying, “If you’re not going to help, at least don’t stand around turning an emergency into a spectator sport, and obstruct the ambulance.” This provision would not have applied to the police in Tindall for several reasons: first, there is a separate liability scheme for police failures. Second, Mr Kendall, who had been involved in the first accident, was not attempting to assist a person in immediate danger following a sudden emergency. Rather, he was warning oncoming motorists about the presence of the ice on the road, and the ice was not a sudden event. Third, the concept of obstructing assistance is not interpreted broadly enough to cover reasonably telling someone that they should leave and thereby interfering with their warning. Finally, the offence requires intentional conduct which would presuppose knowledge of Mr Kendall’s efforts, which the police didn’t have.
The duty to rescue in Germany took shape in legislation adopted in 1935. At that time, the rule referred to the so-called ‘healthy sentiment of the people’, allowing courts to punish behaviour inconsistent with the moral expectations of the community. It signalled a shift away from an individualist liberal legal order towards a system that emphasises obligations of the collective. The ideological language was removed after World War II, and the provision’s justification was reframed as mutual responsibility within an interdependent society.

You might be wondering where private law fits into all of this. Under German law, many criminal offences have direct implications for civil liability. The central provision of German tort law is Section 823 of the German Civil Code. Paragraph One provides that a person who intentionally or negligently infringes certain protected interests must compensate for the resulting damage. That provision does not generate omission liability unless a special relationship between the parties or responsibility for a source of danger exists. However, under Paragraph Two, a person who breaches a statute intended to protect others may also be liable for damages, and criminal provisions often operate as protective statutes for victims. In principle, breach of the duty to rescue could give rise to both criminal and civil liability.

There is again a separate provision for public authority liability. Public authority liability arises for breaches of specific public law duties that are not equal to those of natural persons. An official breach is a public duty under Section 839 of the Civil Code, and liability is transferred to the state. The claim is then brought against the public authority, not against the individual officer. In practice, liability for police failure usually falls on the state.

Applying this to a case like Tindall, German courts say that different public bodies must make roads reasonably safe, depending on their function, but they don’t have to eliminate all risks. So, there could be liability where the black ice is in a known exceptionally dangerous spot, and it was reasonable to warn, grit or close the road, especially where the police had been notified about the danger. But liability wouldn’t have anything to do with Mr Kendall’s prior warnings.

What is the comparative here? In England, emphasis is on preventing people from causing harm. There’s a greater reluctance to impose general duties to rescue. In continental Europe, there is stronger acceptance of limited duties of solidarity, especially where life or bodily integrity are at risk. I suggest that the duty to rescue is a symptom of the pattern we see in other areas of law. German law, influenced by the constitutional idea of the Sozialstaat, the social state, has traditionally been more comfortable with legal frameworks that impose duties designed to protect structurally weaker parties. England historically emphasises autonomy and individual choice. The duty to rescue, therefore, illustrates something broader about the social context of law. Legal systems reflect a society’s underlying assumptions about individual liberty, solidarity and the responsibilities citizens owe each other.

Andrew Warnock KC
Deka Chambers

Amelie Berz
Career Development Fellow in Law
Jesus College, Oxford

Professor James Goudkamp
Professor of the Law of Obligations
Fellow of Keble College, Oxford

For the full video recording:
innertemple.org.uk/rescue