The Good Samaritan

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Jordan is an associate in the firm’s dispute resolution practice group. He practices in the area of civil and commercial litigation and advises on a range of matters including employment matters, customs & immigration, property disputes, personal injury, debt collection and mortgage enforcement. Jordan also has experience with cases involving various local tribunals including the Tax Appeal Tribunal and the Employment Tribunal.

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Recently in the news there have been increasing reports of rescue efforts and road accidents where members of the public have been praised for assisting the victims until emergency services personnel arrived. For some people, leaping to action in those circumstances is an instinctual response to seeing a fellow man or woman in need. But what happens if in doing so that person makes the matter worse?

Consider the situation where you witness a car traffic accident. You find that one of the cars involved leaking liquid everywhere and you and several other passers-by are concerned about the car blowing up. You decide to take action and help the driver of vehicle (who is clearly very hurt) out of the vehicle. You do so before the emergency services arrive. What if then you discovered that the driver of the vehicle was about to have his leg amputated. The driver blames you. The Fire Service advised him that they could have cut him out of the car safely without causing the damage to his leg prompting the amputation.

People who step up to help in emergency situations such as these are sometimes referred to as Good Samaritans. This blog post will explore how Good Samaritans are protected, if at all, under Bermuda law and what members of the public should be aware of when thinking to help their fellow man in an emergency.

In Bermuda, the only Good Samaritan legislation in place is the Good Samaritan (Food Donations) Act 2015, which is limited to donation of food. There is no other specific legislation regarding Good Samaritans or the protections otherwise available to members of the public who help in emergency situations.

An article published by the Modern Law Review (the Review) dissects the notion of social responsibility and legislating to effect what are already common law principles. Highlighted in the Review is the concept that attempting to “enshrine common law principles in legislation” must be done correctly.

In 2015, the UK enacted the Social Action Responsibility and Heroism Act 2015 (the “UK Act”) which was meant to protect the ‘Good Samaritan’ from liability. However, the UK Act was roundly criticized. Lord Pannick, being quoted during the House of Lords’ debate on the Act whilst still in Bill form, said “I cannot remember a more pointless, indeed fatuous, piece of legislation than Clause 2 of this Bill, with the possible exception of Clauses 3 and 4 of this Bill’.

The primary criticism of the UK Act is that the Common Law already provided the protection sought and, further, the attempt at codifying that protection into legislation was done so poorly that it rendered the effort to do so a waste.

Other jurisdiction like Canada, Australia and the USA have been more successful at enacting Good Samaritan legislation; however, a common point to note amongst the legislation in those jurisdictions is that to benefit from the protection from liability, various qualifying elements must be proven (i.e. that the Good Samaritan is: acting in good faith; not guilty of gross negligence; not under the influence of narcotics; did not act recklessly, etc.)

An example from Ohio in the United States helps demonstrate the benefit of Good Samaritan laws: the case Carter v Reese 2014 Ohio 5395 was a scenario similar to that outlined above. A truck driver, Mr. Carter, found his leg pinned between a wall and the rear of his truck. After calling for help a nearby member of the public, Mr. Reese, came to his aid. In trying to maneuver the truck forward to release Mr. Carter from his position, Mr. Reese, who had no experience operating a truck, mistakenly reversed the truck, crushing Mr. Carter’s leg, which later had to be amputated. Mr. Carter sued Mr. Reese over his injuries but Mr. Reese was protected by the Ohio Good Samaritan legislation. Although Carter v Reese is an American case, and as such not binding precedent in Bermuda, it demonstrates the benefit of legislated protection.

Without legislated protection for Good Samaritans in Bermuda, “would be heroes” have to look at the common law position in Bermuda.

The Common Law position in Bermuda is as yet undefined owing to an absence of recent jurisprudence to act as guidance on the position. However, in the absence of Bermudian cases to draw from, the examples from other jurisdictions (primarily the UK) will likely be followed.

An example of relevant common law principles (also outlined in the Review), are the Bolton v Stone factors which were reiterated by the House of Lords in Tomlinson v Congelton BC [2003] UKHL 47 and summarized below.

Proving a breach in negligence requires that the court will frequently consider what precautionary steps D could have taken, in order to avoid the injury or harm to C. Whether a reasonable D ought to have taken those precautionary steps depends upon:

  • an analysis of the magnitude of the risk;
  • the gravity of the injury, should the risk manifest;
  • the cost of taking those precautionary steps; and
  • the social or economic utility which could be compromised if those precautionary steps were taken.

Although time and circumstances may not permit an analysis of the Bolton v Stone factors in an emergency situation, members of the Bermuda public should generally be aware and take these factors into consideration when assisting others.

Cautionary tips for Bermuda’s Good Samaritans to consider when they are faced with an emergency situation include:

  • Call 911 and take action only if the circumstances require after seeking the input of the advisor on the 911 call.
  • Try and wait until emergency services arrive. Emergency personnel are specifically trained in how to approach injured persons and how best to move them in ways to mitigate causing further injury.
  • If the accident is of a large scale or very serious or complicated in nature, consider your steps carefully. Remember that the magnitude of the risk and the gravity of the injury must be taken into consideration.
  • Know your limitations. If helping requires you to do something you know is beyond your abilities, trying to do it anyway may only make matters worse and may later be deemed to have been negligent on your part. Mr. Reese is the example, having never driven a truck before he ought to have thought better of trying to move Mr. Carter’s truck in the circumstances.
  • If the injured person is conscious and is able to communicate, you should attempt to seek their permission before taking any steps to help – bringing to their attention that there is risk of further injury.

Being socially responsible and caring of your fellow man is integral to a well functioning society. However, pending the introduction of sensible legislation, the common law encourages the Good Samaritan to assist bearing in mind the Bolton v Stone factors.

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