.png){kind=icon}
1. Should a 'Good Samaritan' statute be passed in this country? What are the benefits of not having one?
An essay on this topic would require, initially, a brief outline of what 'Good Samaritan' statutes are and where they have been passed (perhaps also some reference back to the Biblical concept of the Good Samaritan in order to contextualise what the discussion is about in a non-legal sense). Good Samaritan laws are those that are enacted in order to prevent someone who steps in to help someone else from being sued (for example, the ubiquitous small child struggling in a pool of water, or a person about to walk off the edge of a cliff (see section 4.2)). Further, there would need to be some explanation of the fact that, as we have seen, the way the common law has developed in this country in relation to omissions means that if we happen to see someone in trouble, even when it would be easy for us to do something about it, there is no obligation to act, except in certain situations or within the context of specific relationships.
While there are many reasons cited to explain why there should be no legal obligation (even though there is a moral imperative) to go to the aid of another (see especially Lord Hoffmann in Stovin v Wise [1996]), there are at least some indications from the cases (and anecdotally) that one of these reasons is to prevent putting oneself at risk of litigation should things go wrong. Clearly, this perception may or may not be ill-founded and should be analysed – and may perhaps be linked to the perception that we live in a 'compensation culture' (which would be an avenue worth exploring here also – more can be found on this notion in the panel in chapter 1, at section 1.3.2, as well as in chapter 21, section 21.6 and 21.7). On that aspect, it would also now be worth mentioning that the Social Action, Responsibility and Heroism Act 2015 may now overtly protect people who step in to help others (even if this wasn’t the case before, which arguably it would have been) – not by eradicating a duty when they do so, but by determining the question of breach differently (see discussion in pause for reflection box in section 4.2 and also see detailed consideration of the Act in section 8.5.1).
The second part of the question is slightly unusual in that instead of asking what would be the benefits of having a Good Samaritan statute, it asks about the benefits of not having one. Of course, the arguments for having one are easier to come up with – but the implications of this question should be explored. What does not having such a law actually mean in practice? Basic answers to this will explain that it could mean that someone who assists another in trouble could therefore be sued – but the actual legal mechanism behind this should be explained also. To answer the question one would have to defend why this is a good thing. Better answers will also go to the case law and use and defend the reasoning of the judges where they state that there should be no obligation to assist – and why, perhaps bringing in and elaborating on ideas of individual rather than collective responsibility and freedom to act as one wishes within the parameters of the law.
Other answers might decide that this is a concept that is indefensible. Why shouldn't people who help others be protected against legal action being taken against them by those they tried to help? Alternatively, one issue here is that not having such protection means that fewer people are likely to help others in the first place. Are the judges therefore wrong in what they say and is there, in fact, a workable solution to the problem that arises from omissions?
2. Do the concepts of liberal individualism and personal autonomy carry more weight than collective or social responsibility? Should they?
An answer to this question in the context of liability in negligence for omissions or the acts of third parties would require some initial exploration of what the terms used mean. Then, the law should be linked to these concepts (using case and statute examples would be good) to show whether it has prioritised liberal individualism and autonomy over collective and social responsibility and, if so, how. How has the duty of care in these two areas been defined in the cases (i.e., when will a duty – that is, an obligation to conduct oneself to a particular standard of care – be imposed and, often more importantly, why?). It can certainly be argued – by giving carefully chosen examples – that the law determining whether a defendant will owe a duty of care in respect of either an omission or for the actions of a third party seems to be based on judicial ideologies firmly based in the concept of individualism and individual responsibility for one's own actions, up until the point, at least, where anyone else takes control or is given or assumes responsibility for another (see, as one example, Barrett v Ministry of Defence [1995] (section 4.2.2) and the ‘Counterpoint’ box in section 4.5.4). That said, there are examples where the law has determined that we do bear responsibility for the wellbeing of others, especially within the context of certain circumstances or relationships (see e.g. sections 4.2.1, 4.2.2, 4.2.3, 4.5.1, 4.5.2, 4.5.3, 4.5.4 – also of interest here is the Social Action, Responsibility and Heroism Act 2015 (see discussion in pause for reflection box in section 4.2 and also see section 8.5.1).
Clearly an answer to the second part of the question needs to be based on personal opinion. But, that said, any opinion needs to be justified with reference to the law, and better answers will be those that explore and use the cases best. An answer arguing that it is right to prioritise individualism and autonomy is equally as valuable as one that argues the opposite, no matter what the authors think! To do this well, good use should be made of judicial quotations (with explanation and comment/critique alongside – in particular the case exceptions to the general rule should be explored and justified) and academic work – and perhaps comparisons made with other jurisdictions, if this is possible. However, arguing for the opposite point, while it may often seem admirable to indicate that people should only take responsibility for their own actions, this approach does not adequately take into account the fact that in many of the cases we have seen it may be more 'morally' justifiable to adopt a wider conception of duty and allow breach to be used as a control on liability. Put simply, the judicial approach in these types of case could be based more on the degree of fault or moral blameworthiness that could be attached to the defendant.
3. In Smith v Littlewoods [1987], Lord Goff indicated that the legal treatment of omissions may one day need to be reconsidered. Was he correct?
Fairly obviously, the starting point here would be to read Lord Goff’s speech in full, highlighting the salient passages and gaining a detailed understanding of his reasoning. Why, for example, did he imagine that the legal treatment of omissions might one day need to change? Does that suggest that he found the law to be flawed (at that time) in some way? In theory, an answer to this question could take elements from answers to both of the previous questions, particularly if for question 2 the position is taken that having a law on omissions (and third parties, though that is not specifically interrogated in this particular question, although the two are clearly linked as often it is by a defendant's omission that a third party's actions come into question) based on individual responsibility is the wrong approach. If this is wrong, therefore, the four scenarios outlined by Lord Goff in Smith may also be wrong (as they make exceptions to a general rule that no duty should be owed). If this is the position taken then an argument needs to be made that the law in this area should be reviewed (of course this raises questions as to who should review it – possibly worth exploring in more detailed answers), as Lord Goff himself indicated. Better answers will go to the Smith judgment and see exactly what Lord Goff (said – was he indicating that while the law as he saw it then was 'fit for purpose', it might not be in years to come? If so, why did he think this? Even better answers will look for and use judicial comment from the other judges in the same case (did they agree?) or later cases – who has referred back to Lord Goff in this context, and why? What did they say? Is there growing (or continuing) judicial (or other) pressure for reform of the law in this area? Reading carefully through later cases dealing with omissions, especially at the highest level, such as Michael v Chief Constable of South Wales Police [2015] and looking for some of the discussion on this aspect in particular might be a good starting point.
The question also asks, although not explicitly, about reform. Better answers would pay some consideration to how the law on omissions could/should be reformed (and of course this may come back, circuitously, to some of the aspects covered in an answer to question 1). Some of the further readings listed at the end of the chapter may be helpful in this respect (e.g. McIvor).