Good Samaritans are an important case. 

If we think (as politicians in our modern era tend to) that the law is either about punishing those who lack virtue or making sure that things overall go better through regulation, then holding Good Samaritans liable for the injuries they cause seems to make no sense.

The well-intentioned but foolish Good Samaritan may be extremely virtuous, indeed saintly if he puts himself in danger. It may be (who knows?) that overall the reguatory impact of the law leads to fewer rescues than if there were no liability on Good Samaritans.

If however we see our law as embodying the rights we have one against another, someone who negligently injures you wrongs you. If the choice is between the consequences being borne by you or the wrongdoer, I vote for the wrongdoer, however good his intentions may have been.

Notice that SARAH (in ss 2, 3 and 4) only allows conduct that is in fact for the benefit of others to be taken into account. Intending so to act is not enough.   

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From: Andrew Tettenborn [a.m.tettenborn@swansea.ac.uk]
Sent: 16 February 2015 10:11
To: Robert Stevens; Neil Foster; obligations@uwo.ca
Subject: Re: SARAH Act 2015

There's also another source of uncertainty here. Presumably the intent is that the Act should deal with breach of duty rather than the existence of a duty of care. But the wording of s.1 ("This Act applies when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the person was required to take to meet a standard of care") isn't entirely clear on the point. I wonder whether the Act might, ironically, find itself being invoked by administrative departments -- who, however surprisingly this may be, are persons -- who are sued for screwing things up and causing economic loss and then wish to deny any duty of care at all.

Statutory duty: perhaps put in ex abundante cautela to deal with the Occupiers' Liability Act?

On Robert's point about the NSW law, I must confess to thinking we might actually have been better off with the NSW version giving complete immunity in certain cases. At least this gives us certainty. Furthermore, with house prices the way they are it has to be remembered that individuals are today increasingly worth suing. With the demise of legal aid there's something unattractive about a flesh-and-blood person being sued for negligence, even if he has been well-meaningly foolish, possibly facing ruin and the loss of his home, and having to face the legal merry-go-round alone.

Andrew

On 16/02/15 09:06, Robert Stevens wrote:

Social Action, Responsibility and Heroism Act 2015

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Andrew Tettenborn Professor of Commercial Law, Swansea University Institute for International Shipping and Trade Law School of Law, University of Swansea Richard Price Building Singleton Park SWANSEA SA2 8PP Phone 01792-602724 / (int) +44-1792-602724 Cellphone 07472-708527 / (int) +44-7472-708527 Fax 01792-295855 / (int) +44-1792-295855

Andrew Tettenborn Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe Sefydliad y Gyfraith Llongau a Masnach Ryngwladol Ysgol y Gyfraith, Prifysgol Abertawe Adeilad Richard Price Parc Singleton ABERTAWE SA2 8PP Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724 Ffôn symudol 07472-708527 / (rhyngwladol) +44-7472-708527 Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855

 

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

 

 

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