Good Samaritan, Good Judgement

Traffic on motorway

Rescuers and Contributory Negligence in light of Tolley v Carr & Others

“21 November 2006 is a day that David Tolley will never forget”.

So begins the judgment of Mr Justice Hickinbottom in the case of David Tolley v Claire Carr & Others [2010] EWHC 2191 (QB).

Good Samaritan, Mr Trolley, stopped to help a driver who had lost control of his car on the motorway

Mr Tolley is the ultimate “good samaritan”. During his morning journey to work, through turbuulent weather conditions, along the M53 motorway Mr Tolley stopped to assist a driver who had overtaken him and lost contol.

Mr Tolley checked that the driver, Mr Raywood, was uninjured and was thanked for stopping.

He started to walk back to his own car to carry on with his journey to work.

Checked another driver who had lost control of their car

However, on his way back to his car he noticed another driver had apparently lost contol of her vehicle on the other carriageway.

This vehicle had stopped broadside in the carriageway.

Mr Tolley could see a female driver, Ms Carr, sitting in that vehicle. His immediate thought was that she was in danger. He shouted to Mr Raywood, “We will have to get her out of there.”

Mr Tolley checked it was safe to cross and then crossed the central reservation and the opposite carriageway. Mr Raywood followed.

Mr Tolley opened the driver’s door. Ms Carr had made no attempt to leave her vehicle and Mr Tolley assumed she was in shock.

He asked if she was alright and she said she was. Then he told her she could not stay in the car.

He helped her out of the car, took her by the arm to steady her and moved her to where Mr Raywood was in the central reservation.

Ms Carr was safe - the central reservation was wide and she was on the other side of the barrier. 

Other vehicle a danger to other motorists

However, Mr Tolley realised that her vehicle was now a danger to other motorists.

He thought the position of the vehicle could lead to a multiple vehicle pile up.

Mr Tolley asked Ms Carr whether her car was alright. She said it was and he said “I will move it”. Mr Tolley entered the carriageway again.

Mr Tolley reached Ms Carr’s vehicle and opened the door.

He was half in half out of the vehicle when the vehicle was hit.

First by a glancing blow from a similar vehicle and then by a very substantial blow from a transit van.

Mr Tolley sustained a devastating spinal cord injury and other injuries and was left with permanent paralysis of the lower limbs.

Defendents plead contributory negligence for spinal cord injury

Liability for his injuries was admitted, however, the defendants plead contributory negligence.

They argued that the decision to return to the vehicle to protect unknown motorists showed a lack of reasonable care for his own safety which amounted to contributory negligence of between one quarter and one third.

Court held that public are not under a duty to aid others in peril

The court held that generally members of the public are not under a duty to go to the aid of those in peril, regardless of whether the peril arose through their own fault, or through the fault of another, or where no one was at fault.

However, the law does recognise that “danger invites rescue” and as the Lord Justice Morris said in Baker v T E Hopkins & Sons Ltd [1959] 1 WLR 966 “There is, happily, in all men of goodwill an urge to save those who are in peril”.

Law imposed a duty of care

The law imposed a duty of care on the creator of a danger to those who go to the aid of those at risk, whether they were professional rescuers or members of the public.

The judge also stated that “The law is slow to criticise those who, under the pressure they find themselves in, seek to reduce the risk of harm to others, by placing themselves at risk, in circumstances in which time is or is perceived to be of the essence and the risks to those endangered are or are perceived to be great”.

A rescuer may imperil his own life and the greater the risk to others the greater imperilment the law will accept as reasonable. The law appreciates a rescuer may act or feel compelled to act in the pressures of the moment. It is therefore not appropriate to subject the rescuer’s actions, or his subjective view of the risks involved to himself or others, to the “fine scrutiny in the court room”.

The judge concluded that, given the situation, the risk of accident had been high and that, in all the circumstances, Mr Tolley’s decision had been reasonable.

There was no contributory negligence.

This is a important decision on the rescue principle. The defendants argued that Mr Tolley had been “wholly foolhardy” and suggested contributory negligence should be deducted. The general view of the court appears to have been that rescuers should not be discouraged.

The judge in the case clearly was not impressed by the defendant is argument stating, “Mr Braithwaite QC for the Claimant said that in doing what he did….Mr Tolley acted as any decent man would hopefully act. That is a high aspiration for decent men. There are many decent men who I doubt are as brave as Mr Tolley. Not all decent men would act “under the compulsion of instincts as a brave man”…But exceptional bravery is not the same as foolhardiness. On  the basis of the evidence I have seen and heard, it is my clear and firm judgement that Mr Tolley’s actions on the 23 November 2006 fell within the category of the brave and commendable, not the foolhardy and unreasonable. He acted with proper regard for his own safety in all of the circumstances, but, meritoriously, with greater regard for the lives and well-being of others”.

Julian Fulbrook summaries the law in his article, Personal injury: contributory negligence – rescuers 2011 JPIL C19, “While the defence of contributory negligence might be considered in respect of a rescuer when they have acted in a “foolhard” manner, courts are likely to be very reluctant to make any such finding, particularly in the case of a genuine Good Samaritan who is doing their best in difficult circumstances to safeguard life and limb”.