From: Benjamin Zipursky <bzipursky@law.fordham.edu>
To: Jones, Michael <M.A.Jones@liverpool.ac.uk>
CC: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
Hedley, Steve <S.Hedley@ucc.ie>
Date: 03/06/2014 02:46:41 UTC
Subject: Re: UK: New "good samaritan" legislation planned
In the United States, we certainly distinguish between two different issues which the pending legislation seems to me to blur together.   Whether there should be statutory protection surrounding issue A is quite different from whether there should be statutory protection surrounding issue B.

A. A person who would not face any potential liability whatsoever if she or he simply declined to try to rescue someone (a stranger) in an emergency does in fact attempt such a rescue.   Because the common law of negligence typically combines a no-liability-for-failure-to-try-rescuing rule with a liability-for-negligently-executing-a-rescue-attempt rule, most American legislatures have fretted that the common law contains an implicit incentive to refrain from trying to rescue a stranger in need.  Our Good Samaritan statutes, putatively (and perhaps actually) aimed at countering this incentive, typically immunize rescue efforts done in good faith (or, in many jursidictions, done without gross negligence).

B. A person or entity that undertakes to efforts to help others (e.g., by providing medical care, education, recreational opportunities) but has neither an obligation to do so nor a profit-seeking motive to do so may be discouraged from doing so by the prospect of tort liability for negligence in conducting such activities.   And even if they are not discouraged from doing so, the cost of doing so may be substantially increased by the possibility of liability and the concomitant need for liability insurance (or self-insurance).   On these grounds, the common law in many American states used to have, e.g., charitable immunity for not-for-profit religious hospitals.   I believe that today, such charitable immunities have largely (but not entirely) vanished in American jurisdictions.

My own inclination tends to be somewhat in favor of the status quo, I confess; I think A is perfectly defensible, and not likely to cause much mischief, while I fear that B would be unacceptable, given how much of our world of activities (at least in the U.S.) turns on not-for-profits (including private universities and hospitals, among others).   Perhaps the pending legislation concerns only individuals, not organizations (but I find the distinction quite difficult).   Or perhaps you would have a greater capacity, with bench trials rather than jury trials, to find reasonable half-way points in such immunities.   From my point view, however, this would be an extraordinary gift to a wide range of defendants and a real blow to those who rely on reasonably careful performance of a variety of activities.

Regards,
Ben Zipursky
Fordham University School of Law


On Mon, Jun 2, 2014 at 4:52 PM, Jones, Michael <M.A.Jones@liverpool.ac.uk> wrote:

One's motive (commercial, self-interest, public service, altruism) is entirely irrelevant to the level of one's competence. Are we really going to say that, e.g., someone volunteering (from the very best of intentions) to take disabled children out on a day trip in a mini-bus will escape any liability for negligently driving over the edge of a cliff?

 

Surely one doesn't have to be a bleeding heart liberal to think that a rule excusing the incompetent do-gooder from liability would be a bad rule? If that discourages some people from volunteering then so be it. Responsible volunteers will insure. It's the irresponsible who don't protect themselves and their victims (as, e.g., with uninsured motorists); and the rest of us pick up the tab (as, e.g., with uninsured motorists).

 

Michael 

 

--------------------------------------
Michael A. Jones
Emeritus Professor of Law
School of Law and Social Justice
University of Liverpool
Liverpool
L69 7ZS
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From: Andrew Tettenborn [a.m.tettenborn@swansea.ac.uk]
Sent: 02 June 2014 18:32
To: Hedley, Steve; obligations@uwo.ca
Subject: Re: UK: New "good samaritan" legislation planned

The real problem is that the Compensation Act was too mealy-mouthed; and I suspect there's a danger of this measure having the same problem despite the apparent tightening-up. A duty to take a factor into account is too easy to weasel out of when faced with sympathy for the seriously hurt: it's also so uncertain that the defendant is likely to have to continue to take out insurance, just in case, which rather defeats the object of the exercise.

If we want to make a serious difference (and I think we do, even to the extent of being entirely hard-hearted to the grievously injured), it's arguable we should go further and take a leaf from the criterion for loss of the right to limit liability under transport conventions.  In other words, say that in the case of public-spirited actions there can be no liability at all except in the case of conduct intended to cause damage, or undertaken recklessly and in the knowledge that loss will probably result. Whether Parliament will have the courage to say this remains to be seen: but I'm not hopeful.

Andrew


On 02/06/2014 18:08, Hedley, Steve wrote:
"Extra legal protection is to be given to people carrying out good deeds, volunteering or planning local events who end up being involved in liability claims, the government has announced. Those thinking of doing something to help others should not be put off by the risk of being sued, ministers said ...": "Queen's Speech: Good deeds 'to be backed by law'", BBC News 1 June - http://www.bbc.com/news/uk-politics-27658594

For commentary see Thomas Crockett, 'Legislating for "Statutory Common Sense" and Personal Injury Litigation?', piBlawg 2 June - http://www.piblawg.co.uk/post/2014/06/02/Legislating-for-Statutory-Common-Sense-and-Personal-Injury-Litigation.aspx




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Andrew Tettenborn
Professor of Commercial Law, Swansea University

Institute of International Shipping and Trade Law
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Andrew Tettenborn
Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe

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Lawyer (n): One versed in circumvention of the law (Ambrose Bierce)



 

 

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