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Quo iure? Defendants' liability to rescuers in the tort of negligence

journal contribution
posted on 01.07.2001, 00:00 authored by Danuta MendelsonDanuta Mendelson
The year 2001 marks the 80th anniversary of Cardozo J's judgment in Wagner v International Railway Co 232 NY 176 (1921). This article examines theoretical and procedural problems associated with the concept of duty of care as a foundation for the defendant's liability in negligence to altruistic rescuers, and suggests that Cardozo J's judgment did not establish the principle that defendants owe rescuers a duty of care in negligence. It is argued that subsequent judgments failed to provide the duty of care owed to rescuers under tortious negligence with proper jurisprudential foundations. Conceptual difficulties inherent in a jurisprudential principle that would provide physically injured rescuers with a legal right to a duty of care from the defendant under the tort of negligence were compounded once compensation for negligently occasioned pure emotional distress became available. This article analyses various theories of recovery for pure psychiatric injury and the classification of rescuers into primary and secondary victims. It proposes a solution in the form of a separate cause of action on the case for liability to injured rescuers, partly based on the principle of necessity that governs the Roman action for negotiorum gestio. Cases from the United States, England and Australia are used to illustrate the similarities and differences in the development of and approaches to, the law of rescue.

History

Journal

Tort law review

Volume

9

Issue

2

Pagination

130 - 163

Publisher

Lawbook Co

Location

North Ryde, NSW

ISSN

1039-3285

Language

eng

Publication classification

C1 Refereed article in a scholarly journal

Copyright notice

2001, Thomson Legal & Regulatory Ltd

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