Introduction
The English common law of negligence stands on the foundational principle that while one must not harm one’s neighbour through positive acts, there is generally no corresponding legal obligation to come to their aid. This ‘no duty to rescue’ rule, which permits a person to stand by and watch another drown in a shallow pool of water without incurring civil liability, sits uneasily with common moral intuitions. The tension between the law’s position and societal expectations of altruism raises a fundamental question: should the law of negligence impose a general duty to rescue? This essay will argue that while the moral case for such a duty is superficially attractive, English law’s established reluctance to impose it is ultimately justified on firm grounds of legal principle and public policy. The current framework, which imposes liability for omissions only in specific, circumscribed situations, represents a pragmatic and coherent balance between individual liberty, legal certainty, and social responsibility. This essay contends that a judicially or legislatively imposed general duty to rescue would create intractable problems of scope, causation, and fairness, making the current incremental approach preferable.
The Legal Position: An Absence of Duty with Principled Exceptions
The orthodox position in the English law of tort is the stark distinction drawn between misfeasance (a positive act) and pure non-feasance (an omission). As Lord Goff stated in Smith v Littlewoods Organisation Ltd, ‘the common law does not impose liability for what are called pure omissions’ (Smith v Littlewoods, 1987, p. 271). This principle was given its most powerful modern articulation by Lord Hoffmann in Stovin v Wise, where he identified the core justifications for the rule. These justifications are political, moral, and economic. Politically, a duty to act would represent a significant intrusion on individual liberty. Morally, Lord Hoffmann articulated the ‘why pick on me?’ problem: a duty to rescue does not easily single out one person from a group of passive onlookers. Economically, imposing a duty to confer a benefit on another for no reward is seen as an inefficient allocation of resources (Stovin v Wise, 1996, pp. 943-944).
This general immunity from liability for omissions is not, however, absolute. The courts have developed a series of exceptions where a duty of care to act affirmatively can arise. These exceptions are not random but are grounded in a discernible principle: the existence of a relationship or circumstance that makes it fair, just, and reasonable to impose such a duty. The key categories of exception include:
Assumption of Responsibility: Where a defendant voluntarily assumes responsibility for the claimant’s welfare, a duty to act can be imposed. In Barrett v Ministry of Defence (1995), the Ministry was held liable not for the deceased officer’s initial drunkenness, but because other officers had taken him into their care and then failed to provide adequate supervision, thereby assuming a responsibility they then breached. Similarly, the ambulance service in Kent v Griffiths (2001) was held to have assumed a responsibility to the specific patient once her 999 call was accepted, creating a duty to arrive in a reasonable time.
Special Relationship: Certain pre-existing relationships import a positive duty to act, such as that between a parent and child, an employer and employee, or a custodian and prisoner (Reeves v Commissioner of Police for the Metropolis, 2000). These relationships are distinguished by an element of control, power, or reliance that justifies departing from the general rule.
Control over a Third Party: Where a defendant has a degree of control over a third party who causes harm, a duty may be owed to the person harmed. The classic example is Home Office v Dorset Yacht Co Ltd (1970), where prison officers were held to owe a duty of care to the yacht owners for damage caused by escaping borstal trainees under their control.
Creation or Adoption of a Risk: If a defendant creates a source of danger, they are under a duty to take reasonable steps to prevent it from causing harm (Haynes v Harwood, 1935). This extends to situations where a defendant’s actions worsen a situation, as seen in Capital & Counties plc v Hampshire County Council (1997), where the fire brigade was liable for ordering sprinklers to be turned off, thereby exacerbating the fire. A duty does not arise merely from attending the scene.
These exceptions demonstrate that the law is not blind to the need for positive duties. However, they are carefully policed and justified by finding a specific reason to depart from the default position of individual autonomy. The law seeks a ‘special link’ between the claimant and defendant (Cane, 2002) before it will impose a duty to act.
The Competing Pulls of Morality and Public Policy
The core of the debate lies in the conflict between moral philosophy and pragmatic public policy. The moral argument for a duty of easy rescue is powerful. Philosophers like Peter Singer have argued that if it is in our power to prevent something very bad from happening, without thereby sacrificing anything of comparable moral importance, we ought, morally, to do it (Singer, 1972). The legal bystander who watches a child drown in a puddle is a moral monster, even if they are not, under current English law, a tortfeasor. Many European jurisdictions, such as France and Germany, have criminalised the failure to render assistance to a person in peril, reflecting a different cultural and legal balance between individualism and social solidarity (Tunc, 1966). From this perspective, the English common law’s position appears to champion a brand of rugged individualism that is out of step with the expectations of a modern, interconnected society.
However, translating this moral imperative into a workable legal duty in negligence is fraught with difficulty. The public policy arguments against a general duty, as articulated by Lord Hoffmann in Stovin, remain compelling. Firstly, the ‘why me?’ or causation problem is significant. If multiple people witness an accident, who is liable for the failure to rescue? All of them? The one closest? The one most qualified to help? Apportioning liability among a group of passive non-participants would be an almost impossible judicial task and risks arbitrary outcomes.
Secondly, a general duty would create enormous uncertainty. What level of risk must a rescuer undertake? The law would have to define what constitutes a ‘reasonable’ rescue. This could lead to defensive behaviour, where individuals fearing litigation might perform a rescue poorly, or alternatively, be deterred from intervening at all. While the Compensation Act 2006 aims to protect ‘desirable activity’ and prevent findings of negligence against well-intentioned rescuers, it does not create a duty to act in the first place and only addresses the standard of care of those who do choose to intervene.
Thirdly, the imposition of a general duty represents a profound constitutional step. As Lord Hoffmann argued, such a fundamental shift in the relationship between the individual and the state, involving a significant infringement of personal liberty, is more appropriately the domain of a sovereign Parliament than the judiciary (Stovin v Wise, 1996, p. 944). It is a matter of political and social policy, not merely an incremental development of common law principle. A court-created duty would lack the democratic legitimacy and the detailed consideration of social and economic impacts that the legislative process can provide.
The Superiority of the Incremental Approach
Given these powerful objections, the current incremental approach of the common law appears to be the more prudent course. The existing exceptions, particularly the expanding doctrine of ‘assumption of responsibility’, provide a flexible mechanism for the law to respond to deserving cases without opening the floodgates. The House of Lords’ decisions in cases like Phelps v Hillingdon LBC (2001) and Customs and Excise Commissioners v Barclays Bank plc (2006) demonstrate a judicial willingness to find a duty based on the defendant’s conduct and relationship with the claimant, rather than a rigid status-based approach. This allows liability to be tailored to the specific facts, ensuring that a duty is only imposed where it is fair to do so.
This approach allows the law to evolve organically. For example, if a company publicises a rescue service or a helpline, it could be held to have assumed a responsibility towards those who rely on that representation. This is a more principled and legally certain route to liability than a vague, overarching duty to rescue. It ensures that duties are placed on those who have, through their words or actions, positioned themselves as being responsible, rather than on an arbitrarily selected bystander. The current law therefore penalises not non-feasance in the abstract, but the negligent performance of a responsibility that has been implicitly or explicitly assumed (Horsey and Rackley, 2021). The law insists on a reason for the duty, and that reason is found in the defendant’s own position or conduct relative to the claimant.
Therefore, the question is not simply ‘act or omit?’, but ‘was there a relationship or circumstance that displaced the presumption of individual liberty?’. The current law answers this question on a case-by-case basis, building a coherent and principled body of case law. Imposing a general duty to rescue would sweep this careful, nuanced jurisprudence away, replacing it with a principle that is morally attractive but legally unworkable.
Conclusion
The English law of negligence should not impose a general duty to rescue. While the absence of such a duty may offend our moral sensibilities in extreme cases, the establishment of a broad legal duty would be a misstep. The principled objections grounded in public policy and legal theory—the difficulty in identifying the duty-bearer, the uncertainty over the required standard of conduct, and the infringement on individual liberty—are too significant to overlook. A general duty would be a blunt instrument, ill-suited to the myriad factual scenarios that could arise, and would risk creating more legal injustice than it would prevent.
The current legal framework, with its general rule against liability for omissions punctuated by carefully controlled and principled exceptions, strikes a sophisticated balance. It affirms the value of individual autonomy while simultaneously recognising that in certain circumstances, a defendant’s relationship to the claimant or to the source of the danger makes it fair, just, and reasonable to impose a duty to act. This incremental, case-by-case approach allows the law to develop in a stable and predictable manner, ensuring that the imposition of positive duties remains an exceptional, rather than a routine, feature of the law of negligence. The moral call to be a ‘Good Samaritan’ is a powerful one, but it is a call that should, for sound legal and public policy reasons, remain in the realm of ethics and conscience, not civil liability.
References
Barrett v Ministry of Defence [1995] 1 WLR 1217.
Cane, P. (2002) The Anatomy of Tort Law. Hart Publishing.
Capital & Counties plc v Hampshire County Council [1997] QB 1004.
Compensation Act 2006.
Customs and Excise Commissioners v Barclays Bank plc [2006] UKHL 28, [2007] 1 AC 181.
Haynes v Harwood [1935] 1 KB 146.
Home Office v Dorset Yacht Co Ltd [1970] AC 1004.
Horsey, K. and Rackley, E. (2021) Tort Law. 7th edn. Oxford University Press.
Kent v Griffiths [2001] QB 36.
Phelps v Hillingdon London Borough Council [2001] 2 AC 619.
Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360.
Singer, P. (1972) ‘Famine, Affluence, and Morality’. Philosophy & Public Affairs, 1(3), pp. 229-243.
Smith v Littlewoods Organisation Ltd [1987] AC 241.
Stovin v Wise [1996] AC 923.
Tunc, A. (1966) ‘The Volunteer and the Good Samaritan’. In: J. A. Jolowicz (ed.) The Division and Classification of the Law. The British Institute of International and Comparative Law.
